SZNVJ v Minister for Immigration - [2010] FMCA 199

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNVJ v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 199

MIGRATION – Review of Refugee Review Tribunal’s decision – refusal of a protection Class (XA) visa – no reviewable error – application dismissed.

The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and is given the pseudonym “SZNVJ”.

Migration Act 1958 (Cth), ss.91X, 424, 424A, 424AA

Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17
Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507
MZXBQ v Minister for Immigration and Citizenship (2008) 166 FCR 483
Refugee Review Tribunal Re: Ex Parte H (2001) 75 ALJR 982
SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26

Applicant:

SZNVJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1915 of 2009

Judgment of:

Lloyd-Jones FM

Hearing date:

10 February 2010

Date of Last Submission:

18 March 2010

Delivered at:

Sydney

Delivered on:

24 March 2010

REPRESENTATION

The Applicant:

The Applicant appeared as a self represented litigant with the assistance of Mandarin interpreter.

Counsel for the Respondents:

Ms Clegg

Solicitors for the Respondents:

Sparke Helmore (F Edwards)

ORDERS

The application filed on 11 August 2009 be dismissed.
The Applicant is to pay the First Respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1915 of 2009

SZNVJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

The Applicant is female and was born on 12 May 1977 in Fuqing, China. The Applicant was educated for seven years, speaks, reads and writes Mandarin and is the wife of a stonemason. Her husband had a contract with Lan Lin, an officer from the government in Shaowu City, Fujian Province to make 20 stone lions for use in government buildings for RMB 600,000 Yuan. However, Lan Lin did not pay her husband all of the money and therefore he experienced financial hardship.
The Applicant further claims that in July 2007 Lan Lin contacted her husband to work for her brother. In a landslide at the quarry on

7 October 2007, the Applicant’s husband died. The Applicant claims that despite attempts at retrieving compensation from Lan Lin, she was unsuccessful which prompted her to lead a protest of 200 people in front of the Shaowu City government. She claims that she was subsequently beaten, mistreated and punished by the Public Service Bureau (“PSB”) and warned by a female police officer that if she was stubborn she would be persecuted to death in the detention centre.
The Applicant claims that her home was often raided by police after the protest and fled to Australia on a passport in another name as her name was on the PSB blacklist.
The Applicant arrived in Australia on 21 November 2008 on a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FMCA 199
Decision Date: 24 March 2010

CaseChat Overview and Summary

SZNVJ, a person whose identity is protected under the Migration Act 1958, filed an application seeking judicial review of a decision made by the Refugee Review Tribunal (the Tribunal) which had refused to grant SZNVJ a protection (subclass XA) visa. The decision of the Tribunal was under review by the Federal Court, with the Minister for Immigration being the respondent. The primary issue before the court was whether the Tribunal had made any reviewable errors in its decision to refuse SZNVJ a protection visa. Specifically, the court had to determine whether the Tribunal properly assessed the credibility and reliability of SZNVJ's evidence, and if the Tribunal's decision was supported by relevant material.

The court began by acknowledging the Tribunal's role in determining whether the applicant met the criteria for a protection visa. It was noted that the onus was on the applicant to establish that they were a non-citizen to whom Australia owes a protection obligation. The court then examined the evidence provided by SZNVJ and the Tribunal's assessment of this evidence. It was held that the Tribunal had properly evaluated the credibility of SZNVJ's claims, taking into account all relevant factors. The court found no error in the way the Tribunal had assessed the evidence, and concluded that the Tribunal's decision was supported by the material before it.

In light of the above, the court dismissed SZNVJ's application for judicial review, finding that there was no reviewable error in the Tribunal's decision. The court ordered that SZNVJ pay the Minister's costs and disbursements of and incidental to the application. The court's decision affirmed the importance of the proper assessment of an applicant's credibility and reliability when determining claims for a protection visa, and reinforced the Tribunal's role in making these assessments.

Orders

Orders of the court

The application filed on 11 August 2009 be dismissed.

The Applicant is to pay the First Respondent’s costs and disbursements of and incidental to the application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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