SZKSW v Minister for Immigration & Citizenship [2008] FCA 80 (15 February 2008)

Last Updated: 18 February 2008

FEDERAL COURT OF AUSTRALIA

SZKSW v Minister for Immigration & Citizenship [2008] FCA 80

SZKSW v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 2122 OF 2007















MARSHALL J
15 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2122 OF 2007

BETWEEN:	SZKSW Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	15 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The applicant’s application for an extension of time within which to appeal from the judgment of the Federal Magistrates’ Court is rejected.

2. The applicant pay the first respondent’s costs of the application, fixed at $1,500.00

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2122 OF 2007

BETWEEN:	SZKSW Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	MARSHALL J
DATE:	15 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant applies for an extension of time within which to file a notice of appeal from a judgment of the Federal Magistrates’ Court of Australia, which refused the applicant’s application for judicial review of a decision of the Refugee Review Tribunal: see SZKSW v Minister for Immigration [2007] FMCA 1708. The Tribunal had affirmed a decision of a delegate of the First Respondent Minister to reject the applicant’s application for a protection visa.

2 The Court below published its orders on 4 October 2007 but did not provide its written reasons until 12 October 2007. Although the applicant did not provide any explanation for being one day late in filing her notice of appeal, I consider that the delay in the provision of written reasons by the Court below would ordinarily provide a "special reason" for the extension of time by one day as is required under O 52 r 15(2) of the Federal Court Rules ("the Rules"). However, it would be futile to exercise the discretion in favour of the applicant to extend time if the judgment of the Court below and the reasons of the Tribunal do not disclose any appealable or jurisdictional error respectively.

3 The applicant is a citizen of Mongolia. She claimed to fear persecution, if returned to Mongolia, on account of her status as the widow of a Kazakh man, because she would be forced to marry her brother-in-law in accordance with Kazakh tradition. She claimed that her brother-in-law threatened to rape her if she did not agree to marry him. She said that after she arrived in Australia, her in-laws kidnapped her son to force her to marry her brother-in-law.

4 The Tribunal considered the applicant to be an unreliable witness. It did not accept the explanation advanced by her for inconsistencies in her evidence. The Tribunal rejected the applicant’s evidence that:

• her son had been kidnapped;

• her in-laws had subjected her to harm; and

• she travelled to South Korea to escape her in-laws and returned to Mongolia only because of her husband’s serious illness.

It also rejected her evidence concerning her return from South Korea and about the events following her husband’s death in 2004.

5 The Tribunal considered, after reviewing country information, that the practice of a woman being forced to marry her brother-in-law after the death of her husband does not occur among Kazakhs in Mongolia. As such, the applicant did not have a well founded fear of persecution and was not entitled to a protection visa.

6 Before the Court below, the applicant relied on one alleged jurisdictional error in the reasons of the Tribunal. She contended that the Tribunal had failed to determine her claims and whether they were Convention related. Federal Magistrate Smith rejected the application. His Honour considered that the Tribunal had identified and dealt with each claim made by the applicant.

7 The applicant has filed a draft notice of appeal. Her first "ground of appeal" asserts that (contrary to the Tribunal’s finding) the practice of forced marriage alleged by her still exists in Mongolia. The second ground refers to her having "documented" the harm done to her by her in-laws and the kidnapping of her son. These are also matters in respect of which the Tribunal rejected the appellant’s evidence. The final ground asserts a well founded fear of persecution irrespective of whether the applicant’s in-laws would force her to re-marry. None of these matters raise any arguable jurisdictional error.

8 Given the lack of any jurisdictional error in the reasons of the Tribunal or any appealable error in the judgment below, it would not be an appropriate exercise of the power contained in O 52 r 15(2) of the Rules to extend the time within which the applicant is able to file and serve a notice of appeal. The application is dismissed, with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated: 15 February 2008

The Applicant did not appear.

Counsel for the First Respondent:	Ms J Johnson
Solicitor for the First Respondent:	Sparke Helmore
Date of Hearing:	15 February 2008
Date of Judgment:	15 February 2008