SZOJN v Minister for Immigration

[2010] FMCA 560

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOJN v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 560

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming particular social group persecution in Mongolia – applicant not believed – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Migration Act 1958 (Cth)

Applicant: SZOJN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 941 of 2010

Judgment of: Driver FM

Hearing date: 29 July 2010

Delivered at: Sydney

Delivered on: 29 July 2010

REPRESENTATION

The Applicant appeared in person by telephone

Solicitors for the Respondents: Ms S Foley
Clayton Utz

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 in the sum of $2,935 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 941 of 2010

SZOJN

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 29 March 2010.  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 Minister’s written submissions, filed on 22 July 2010.  The applicant, who is a citizen of Mongolia, first arrived in Australia on 31 July 2009.  She applied for a protection visa on 28 August 2009 (court book (“CB”) 1 to 26).  The applicant claimed to have been abused both mentally and physically by her family, including her husband, as a result of her sexual orientation.

3. The Minister’s delegate refused the application on 19 October 2009 (CB 100-104).  The applicant applied to the Tribunal for review of that decision on 11 November 2009 (CB 113-116).  The Tribunal was unable to make a favourable decision on the papers and invited the applicant to a hearing which she attended.

4. The applicant’s claims for protection were based on persecution for reason of sexual orientation and can be summarised as follows: 

   a)she is a lesbian and was forced into marriage by her parents; 

   b)her husband found out about her sexual orientation and physically abused and threatened her; 

   c)students and staff at the university where she teaches also found out about her sexual orientation and as a result she was subject to discrimination and ostracised, and her employment contract was terminated; 

   d)she fears harm from her husband and her family because of her sexual orientation should she return to Mongolia;  and

   e)she cannot avail herself of protection from the Mongolian State from the harm that she fears.

5. The Tribunal accepted that the applicant is a citizen of Mongolia and that she arrived in Australia in July 2009 and remains in Australia as a non-citizen.  The Tribunal also accepted that the applicant is married and has a child and that prior to her arrival in Australia that she taught at university.  However, the Tribunal found that the majority of the applicant’s claims lacked credibility.  In particular, the Tribunal did not accept that the applicant:

   a)is a lesbian nor that she was subject to domestic violence by her husband or family;

   b)the Tribunal did not accept that the applicant was subjected to discrimination and ostracism at her workplace;

   c)the Tribunal did not accept that the applicant was terminated from her employment at the university for the reason of her claimed sexual orientation;

   d)the Tribunal did not accept that the applicant would not be able to avail herself of protection from the Mongolian state.

6. The Tribunal made these findings on the basis that key aspects of the applicant’s claims were, in the Tribunal’s opinion, improbable and not credible and did not accord with the relevant country information.  The Tribunal did not find the applicant to be a credible witness in giving oral evidence as she did not readily respond to questions asked of her.  The Tribunal referred to the applicant’s oral evidence as hesitant and vague and noted that in relation to some questions, the applicant appeared to be improvising (see the Tribunal decision at [82], CB 171).

7. In making its finding concerning the availability of state protection, the Tribunal relied on country information concerning the protection available from the state from domestic violence and the opportunity for divorce.  The Tribunal considered that, given the applicant’s level of education and the availability of divorce in Mongolia, if the applicant was married against her will and was subject to domestic violence, she would have taken more definite steps to end her marriage.  The Tribunal found that the applicant’s evidence as to why she had not continued to progress divorce proceedings against her husband unpersuasive. The Tribunal found that there was no real chance of persecution for the reason of sexual orientation or any other Convention reason arising from the applicant’s past conduct in Mongolia if she were to return to Mongolia now or in the reasonably foreseeable future. 

8. These proceedings began with a show cause application filed on 30 April 2010.  The applicant continues to rely upon that application.  The application simply seeks review of the Tribunal decision and review of some conclusions of the Tribunal.  The application is defective in that it does not assert any jurisdictional error by the Tribunal.  I gave procedural orders in this matter on 25 May 2010.  The applicant attended with the assistance of a Mongolian interpreter.  I gave the applicant the opportunity to file and serve an amended application and evidence.  She has not taken up that opportunity.

9. The applicant filed an affidavit with her original show cause application which simply attaches a decision of the Tribunal.  I received that affidavit.  I also had before me as evidence the court book filed on 27 May 2010. 

10. The applicant did not attend court in person for the hearing of this matter today.  However, the Court was successful in contacting her by telephone.  I gave leave for the applicant to appear by telephone and she accepted that opportunity.  I invited oral submissions from her.  The applicant said that she was concerned that she was not believed by the Tribunal.  However, she conceded that she could not say that the Tribunal’s decision was attended by any legal error. 

11. In my view, it is clear that, in this case, there is no arguable case of jurisdictional error by the Tribunal.  The Tribunal’s decision turned on its adverse credibility assessment of the applicant.  The Tribunal based its credibility finding primarily on inconsistencies between the applicant’s claims and her protection visa application, her evidence, given during the interview before the Department, and her oral evidence given at the Tribunal hearing (see [83]-[86] of the Tribunal decision at CB 171).

12. The Tribunal’s adverse credibility decision was also based on inconsistencies between the applicant’s claims and country information referred to by the Tribunal in relation to the role of the Mongolian police and medical personnel in cases of domestic violence (see the Tribunal decision at [77]-[78], CB 166-168).  I accept that the Tribunal’s rejection of the applicant’s credibility was open to it on the material before it.  The decision was based on rational grounds and was arrived at after consideration of matters that were logically probative of the issues of credibility. 

13. Further, I am satisfied that the Tribunal met its obligations under the code of procedure governing reviews conducted by the Tribunal. The applicant was invited to a hearing and attended. The applicant was left in no doubt as to the essential and significant issues upon which the review would turn. The applicant had a fair opportunity to present her claims to the Tribunal and respond to the Tribunal’s questions. The Tribunal met its obligations under s.425 of the Migration Act 1958 (Cth) (“the Migration Act”).

14. There was no information requiring disclosure to the applicant pursuant to s.424A of the Migration Act.

15. I conclude that there is no arguable case of jurisdictional error by the Tribunal. I will, therefore, order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).

16. Costs should follow the event in this case. The Minister seeks an order for costs in accordance with the court scale. The applicant did not wish to be heard in relation to costs. I will order that the applicant pay the first respondent’s costs in the sum of $2,935 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 of the Federal Magistrates Court Rules.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  2 August 2010