SZTRT v Minister for Immigration

[2014] FCCA 1972

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTRT v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1972

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.424AA

Applicant: SZTRT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3206 of 2013

Judgment of: Judge Driver

Hearing date: 28 August 2014

Delivered at: Sydney

Delivered on: 28 August 2014

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 Circuit 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 $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3206 of 2013

SZTRT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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 (Tribunal).  The decision was made on 25 November 2013.  The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.  The applicant is from Nepal.  She claimed protection because of her fear of harm from Maoists.  She claimed she was a witness to the kidnapping of her husband in 2004, which she reported to the police.  She fears she will be killed by the Maoists if she returns to Nepal. 

2. The Minister’s delegate refused to grant the visa.  The delegate did not accept that the applicant has a subjective fear of harm.  The delegate had regard to the fact that despite being continually threatened, the applicant lived in her home for 18 months after the alleged kidnapping, and then lived with her sister for a further six years. 

3. The applicant sought review before the Tribunal and attended the hearing to which she was invited. The Tribunal affirmed the delegate’s decision. The Tribunal’s finding was based on its adverse credibility assessment about the applicant’s claims. The Tribunal found that the applicant’s testimony was inconsistent and implausible, amounting to a fabrication. The Tribunal focused, in particular, on the applicant’s claims in relation to the alleged kidnapping of her husband and her witnessing of it. The Tribunal also referred to the applicant’s claim to have made a report to the police. The Tribunal also had concerns about the applicant’s claims about difficulties encountered by her family after she departed Nepal. The Tribunal put to her, at the Tribunal hearing, pursuant to s.424AA of the Migration Act 1958 (Cth), prior inconsistent statements she had made at her interview with the Minister’s delegate.

4. The Tribunal also dealt with the applicant’s claim to have been in hiding after receiving threats and her claim of physical assaults. Further inconsistencies were put to the applicant at the hearing, pursuant to s.424AA. Finally, the Tribunal dealt with the applicant’s claim to fear extortion demands. The Tribunal did not find the applicant to be credible, truthful or reliable as a witness. Because of that adverse credibility finding, the Tribunal’s forward looking assessment was not informed by any of the past claimed events. The Tribunal found that the applicant would not face a real risk of serious or significant harm should she return to Nepal.

5. These proceedings began with a show cause application filed on 20 December 2013.  The applicant continues to rely upon that application.  There are three grounds in the application:

   1. I believe the decision of the Refugee Review Tribunal made in my case is not free from a legal error.

   2. The Tribunal Member ignored my substance of claims and documentary evidence.

   3. I am the victim of the purported decision of the RRT.

6. The application is supported by a short affidavit by the applicant which I received. 

7. I also had before me as evidence, the book of relevant documents filed on 12 March 2014. 

8. I gave directions in this matter on 18 February 2014.  At that time I gave the applicant the opportunity to file and serve an amended application and additional evidence.  She did not take up that opportunity.  I listed the matter for a show cause hearing at 2.15pm on 12 August 2014.  At that time the applicant did not attend court.  The Court was, however, successful in contacting her by telephone and she persuaded me that she was not well enough to attend court on that day.  I adjourned the show cause hearing to today.

9. The applicant attended today’s hearing and, although she claimed to be still somewhat unwell, I satisfied myself that there was no obvious impairment to her ability to participate in these proceedings.  I invited the applicant to make oral submissions in support of her application.  She stated simply that she is seeking justice and is not satisfied with the Tribunal decision. 

10. Neither the application nor the applicant’s oral submissions, nor my own examination of the available material point to, let alone establish, any arguable case of jurisdictional error by the Tribunal. 

11. I will order that the application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

12. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court’s scale.  The applicant indicated that she would wish to pay by instalments, but did not oppose an order for costs.

13. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  29 August 2014