SZNZR v Minister for Immigration & Anor [2010] FMCA 50 (27 January 2010)

Federal Magistrates Court of Australia

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SZNZR v Minister for Immigration & Anor [2010] FMCA 50 (27 January 2010)

Last Updated: 29 January 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNZR v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 50

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

Federal Magistrates Court Rules 2001 (Cth)

Applicant:

SZNZR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2628 of 2009

Judgment of:

Driver FM

Hearing date:

27 January 2010

Delivered at:

Sydney

Delivered on:

27 January 2010

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms J Emery DLA Phillips Fox

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 $2,600.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2628 of 2009

SZNZR

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 30 September 2009. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of persecution arising out of her dealings with local officials. The applicant arrived in Australian on 24 March 2009. She applied to the Minister’s Department for a protection visa on 2 April 2009. The Minister’s delegate refused that application on 20 June 2009 and notified the decision to the applicant on the same day.
2. The applicant sought review by the Tribunal on 19 July 2009. The applicant was invited to a hearing before the Tribunal and attended on 17 September 2009. The hearing was conducted with the assistance of a Mandarin interpreter. The applicant was asked about her claims which revolved around difficulties the applicant had experienced with a local official called Mr Wang. The applicant asserted that Mr Wang’s wife deliberately contaminated a tea cup in her tea shop and that she was arrested with other staff members. She later claimed to have been beaten. She presented documents to the Tribunal to corroborate her claims. During the hearing, the Tribunal draw attention to concerns it had about the reliability of her evidence. The Tribunal had regard to certain country information, including information about the fabrication of documents in China. The Tribunal found that it had difficulty accepting that the applicant had given a truthful account of the circumstances that led to her departure from China and her claimed fear of returning. In particular, the Tribunal considered there to be major discrepancies surrounding the applicant’s claim to have been beaten by Mr Wang and his friends.
3. First, the Tribunal found that the claim, which was not originally included in her protection visa statement, was a recent invention. The Tribunal rejected medical records provided by the applicant to corroborate her claim because of certain discrepancies between those documents and the applicant’s account. The Tribunal also rejected a photograph of the applicant purportedly showing blood on her face. The Tribunal found that the photograph was concocted. The Tribunal found that the applicant’s willingness to manufacture a claim and the evidence to support it seriously undermined her overall credibility. The Tribunal found that the applicant’s claim concerning difficulties in the operation of her tea shop was inherently implausible. It rejected a certificate of detention submitted by the applicant on the basis of country information about the fabrication of such documents and the Tribunal’s own finding that the applicant was willing to submit false documents to support her claims. The Tribunal was also influenced by the applicant’s assertion that she would be tortured to death if she returned to China, which appeared to be pure speculation and hyperbole. Although the Tribunal made its adverse credibility conclusions with confidence, the Tribunal went on to state that there was no Convention nexus between the applicant’s asserted harm and the Refugees Convention because her dispute with Mr Wang was essentially and clearly private in nature.
4. These proceedings began with a show cause application filed on 29 October 2009. The applicant continues to rely upon that application. It contains three unparticularised grounds of review:
   • 1. I was not considered fairly by [the Tribunal]
   • 2. Jurisdictional error has been made
   • 3. Procedural fairness has been denied by [the Tribunal]
5. The application is supported by a short affidavit, which I accepted as a submission. I have before me as evidence the court book filed on 20 November 2009.
6. In her oral submissions, the applicant asserted that the Tribunal decision was unfair. The applicant considers that the Tribunal placed too much stress on minor inconsistencies between the medical report she had submitted and her oral evidence. The applicant is adamant that she suffered the injuries claimed and that the cause was her dispute with Mr Wang.
7. In my view, the applicant has not demonstrated an arguable case of jurisdictional error by the Tribunal. The applicant was validly invited to a hearing by the Tribunal and it appears that the hearing opportunity afforded her was a fair one. The Tribunal was at some pains to make clear to the applicant the essential and significant issues of credibility upon which the review would turn. The Tribunal plainly understood the applicant’s claims and considered them in some detail. The adverse credibility assessment made by the Tribunal was open to it on the material before it. The Tribunal considered and rejected the documentary corroborative evidence advanced by the applicant as part of its credibility assessment. The Tribunal was careful to give reasons for its rejection of each document. I see no arguable case of error in the Tribunal’s approach.
8. The statement by the Tribunal in paragraph 56 of its reasons (court book, page 114) that there was no Convention nexus with the applicant’s claims was a secondary finding and not an essential part of the Tribunal’s reasons. I do not necessarily accept that the Tribunal’s conclusion was correct. It is at least arguable that a person suffering the harm asserted by the applicant as a consequence of seeking to pursue her civil and human rights against a local official is persecuted for her political opinion, especially when seen through the eyes of her persecutors. However, as the Tribunal’s discussion of Convention nexus was essentially irrelevant to its decision, which was based squarely on adverse credibility conclusions, it is unnecessary to consider whether the Tribunal’s discussion of a Convention nexus discloses an arguable case of jurisdictional error.
9. There is no arguable case of error in relation to the Tribunal’s approach to its assessment of the applicant’s credibility. Neither is there any arguable case of error in respect of the procedure followed by the Tribunal.
10. I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
11. Costs should follow the event in this case. The Minister seeks an order for costs fixed in the amount of $2,600. Scale costs in this instance would be $2,935. The applicant did not wish to be heard 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 $2,600.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 29 January 2010