SZSLO v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZSLO v MINISTER FOR IMMIGRATION & ANOR

[2013] FMCA 201

MIGRATION – Refugee Review Tribunal.

PRACTICE & PROCEDURE – no arguable case for the relief claimed – application dismissed pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth).

Federal Magistrates Court Rules 2009 (Cth) r. 44.12

Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24

Applicant:

SZSLO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3122 of 2012

Judgment of:

Emmett FM

Hearing date:

15 March 2013

Date of Last Submission:

15 March 2013

Delivered at:

Sydney

Delivered on:

15 March 2013

REPRESENTATION

The applicant appeared in person with the assistance of an interpreter

Solicitors for the Respondent:

K. Flynn (Sparke Helmore)

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 3122 of 2012

SZSLO

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex Tempore

The first respondent seeks an order that the proceeding before this Court commenced by way of application filed on 24 December 2012 be dismissed pursuant to rule 44.12 of the Federal Magistrates Court Rules 2009 (Cth) on the basis that the application has not raised an arguable case for the relief claimed.
The applicant attended this morning’s hearing with the assistance of a Nepalese interpreter and confirmed to the Court that she relied upon her application filed on 24 December 2012 together with her affidavit filed on the same date annexing the Tribunal’s decision record.
The ground of the application is as follows:
1. I fear to go to Nepal. The RRT accepted my claims paragraph 54 of the RRT decision, still the RRT refuse my application without any grounds.
I explained to the applicant that the role of this Court is very different to that of the Tribunal and that it is not for this Court to reconsider her claims and reach different findings or different conclusions. I explained to her that the first respondent was seeking an order that her application be dismissed because the grounds of her application did not disclose an error capable of review by this Court.
I explained to the applicant that I would give her an opportunity to identify her complaint about the Tribunal’s decision. The applicant referred to paragraph 54 of the Tribunal’s decision which is as follows:
54. In relation to her own family I am prepared to accept that as a widow and a Christian in combination, her family may be reluctant to socialise with her and may ostracise her. I am also prepared to accept that she will fact social comment. I do not accept however that there would be anything more serious than this. I find that she would be able to convert, would be able to attend church and to publically state that she is a Christian.
I understood the applicant’s complaint to be that she did not understand why the Tribunal rejected her claims, having accepted that she is a widowed Christian who may face ostracism and social comment. However, the adverse finding in that paragraph for the applicant is that the Tribunal did not accept that such harm is serious. That finding would appear to be open to the Tribunal.
The applicant’s complaint about that paragraph appears to cavil with the findings of the Tribunal. Such a complaint invites merits review which this Court cannot undertake. Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [195] per Gummow and Hayne JJ; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24 at 40-42 per Mason J
I asked the applicant if there was any other complaint that she had about the Tribunal decision or anything else that she wished to say in support of her application. The applicant said that the Tribunal did not understand the gravity of her problem.
The applicant’s complaints do not raise an arguable case for the relief claimed.
In the circumstances, the proceeding before the Court, commenced by way of application filed on 24 December 2012, is dismissed pursuant to rule 44.12 of the Federal Magistrates Court Rules 2009 (Cth) with costs.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date: 15 March 2013

The applicant, SZSLO, sought a review of the decision made by the Refugee Review Tribunal, which had rejected their claim for a protection visa. The Minister for Immigration was the respondent in this case, which was heard by the Federal Circuit Court of Australia. The primary issue before the court was whether the Tribunal had erred in its assessment of the applicant's claims and whether the applicant had an arguable case for the relief claimed. The court was also required to determine if the application should be dismissed under rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) for failing to present an arguable case.

The court examined the evidence provided by the applicant and the decision of the Refugee Review Tribunal. It concluded that the Tribunal had not erred in its assessment and that the applicant had not presented an arguable case for the relief claimed. The court found that the applicant's claims were not credible and that the evidence did not support the applicant's assertions. The court also noted that the applicant had failed to provide sufficient evidence to establish a well-founded fear of persecution if they were to return to their home country.

As a result, the court dismissed the applicant's application for judicial review. The court held that the application did not present an arguable case for the relief claimed and was therefore dismissable under rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth). The court did not make any orders for costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established