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MIGRATION - Migration Act - refugee - application for review of decision of Refugee Review Tribunal - applicant claiming political persecution in Nepal - failure to apply correct convention definition of "single women without male protection" - failure to make reference to correct reports - no reviewable error found - application dismissed.

SZBZS v Minister for Immigration [2004] FMCA 773 (27 September 2004)

SZBZS v Minister for Immigration [2004] FMCA 773 (27 September 2004)
Last Updated: 12 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBZS v MINISTER FOR IMMIGRATION
[2004] FMCA 773




MIGRATION - Migration Act - refugee - application for review of decision of Refugee Review Tribunal - applicant claiming political persecution in Nepal - failure to apply correct convention definition of "single women without male protection" - failure to make reference to correct reports - no reviewable error found - application dismissed.




Applicant:
SZBZS




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SZ2565 of 2003




Delivered on:


27 September 2004




Delivered at:


Sydney




Hearing date:


27 September 2004




Judgment of:


Nicholls FM




REPRESENTATION

Counsel for the Applicant:


Nil




Solicitors for the Applicant:


Ward Maxwell & Co (ceased to act)




Counsel for the Respondent:


Tim Reilly




Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

(1) That the application be dismissed.

(2) The applicant to pay the respondent's costs set in the amount of $3500 pursuant to Rule 21.02 (2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SZ2565 of 2003

SZBZS



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(Revised from Transcript)

1. This is an application for judicial review filed on 25 November 2003 of a decision of the Refugee Review Tribunal made on 3 October 2003 and handed down on 29 October 2003. The date of handing down is recorded as 29 October 2002 on the face of the decision record but the date on the covering letter sent to the applicant is 29 October 2003.

2. The Tribunal affirmed the decision of a delegate of the respondent Minister made on 3 September 2002 refusing an application for a protection (class XA) visa made by the applicant.

3. The applicant is a Nepalese citizen who came to Australia on 29 July 2002 on a business visa. In her application for a protection visa made on 29 August 2002 to the respondent Minister's department, she claimed she left Nepal in fear of persecution by the Nepalese authorities because of her involvement with the Nepal Communist Party (Maoist) and that the authorities had killed many supporters and members of this party.

4. Before the Tribunal, the applicant made the additional claims that:-

* she had been arrested by the Nepalese authorities and had bribed a police officer to escape;

* an arrest warrant had been issued by the Nepalese police in regard to her, and she provided a copy;

* she had experienced difficulties with her husband and his family and that this was part of the general situation for women in Nepal; and

* she provided a letter and membership card from the Nepalese Communist Party.

5. The applicant was unrepresented at the hearing today and she was assisted by an interpreter in the Nepalese language.

6. Her application to this Court however had been prepared with the assistance of a solicitor who had subsequently ceased to act for her.

A notice to this effect was filed in this Court on 23 September 2004.

7. I agree with Mr Reilly, the counsel for the respondent minister, that the grounds of appeal are not properly particularised. I thank him for the written submissions filed on 21 September 2004. Nonetheless, there are a number of matters that I now should look at.

8. In paragraph seven of her grounds for appeal, the applicant says that she was a victim of domestic violence by her husband and her in-laws and that the Tribunal failed to take into account the applicant's situation in making its decision. I note however that at page 106 of the Relevant Documents, that the Tribunal did address this issue ["harm amounting to persecution by reason of the fact that she is a woman"] ["she was mistreated by her husband's family"] (a possible Khawar type situation) ["The Tribunal is not satisfied on the evidence before it that the Applicant has experienced harm amounting to persecution by reason of the fact that she is a woman"]. In my view the Tribunal was entitled to make the finding that it did based on what was presented by the applicant. The fact that the applicant did not agree with this conclusion does not amount to a failure to take into account the matter alleged.

9. In paragraph eight of the grounds of appeal, the applicant claims - a failure to apply [the correct definition of the Refugee Convention to] the issue of "single women without male protection." While a failure by the Tribunal to make a finding on "a substantial, clearly articulated argument, relying on established facts", can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction (Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 197 ALR 389), there was, in my view, no such substantial or clearly articulated argument relying upon established facts made out in this case before the Tribunal in relation to whether the applicant was a member of a group or class to which the Tribunal should have turned its mind. I note also that today [at the hearing] the applicant put to me that she was not a member of a "particular social group of Nepalese women" as referred to in paragraph three of the respondent's written submissions.

10. In the first numbered paragraphs 9 and 10 [in the applicant's grounds of appeal] (and I will deal with those together), it is contended that the Tribunal failed to make reference to country reports favourable to the applicant and that the Tribunal asked irrelevant questions during the interview, (that is the hearing before it), and took into account irrelevant facts to reach its decision.

11. Again, these matters are not particularised in the written grounds of appeal. At the hearing this morning I asked the applicant to provide any detail. She was unable to do so.

12. It is not up to this Court to re-agitate the facts. The Tribunal had before it the application for review, a submission received on

28 August 2003 from the applicant's advisor, the applicant's oral evidence of 1 September 2003 and material submitted by the applicant. I also note that the Tribunal had before it references to Amnesty International reports (see R.D 102.6 paragraphs 6.A.18 and 6.A.19) included in its decision record. In these circumstances it was open to the Tribunal to come to the findings that it did and this includes [and put to the applicant see RD 99.5 and 99.8] the country information to which it refers in its decision record. In the absence of any particulars, these grounds cannot be made out.

13. At paragraph 11 of the grounds of appeal, the applicant states that the Tribunal discredits the applicant for not specifying her claim in her initial application to the [Respondent's] department and gave no weight to the explanation provided. This brings us to a central matter. Mr Reilly submits that the Tribunal found that the applicant was not a credible witness and did not genuinely fear harm in Nepal and the Tribunal sets out its reasons for this. It also rejected her claim to fear harm by reason that she is a woman and harm from her husband's family. I agree with Mr Reilly that the applicant was unsuccessful because of the view the Tribunal took of the facts before it and [the finding] that the applicant was not credible. This finding on credibility which, as Mr Reilly has submitted, is the function of the decision maker "par excellance". The Tribunal found some of the claims implausible and was unconvinced by the applicant's explanations. See Re: Minister for Immigration & Multicultural & Indigenous Affairs exparte Durairajasingham 165 ALR 407 and in particular His Honour Justice McHugh at [67].

I find that it was open to the Tribunal to come to the conclusions that it did on the material before it [and no error is demonstrated].

14. I took the view that the second numbered paragraphs 9 and 10 [in the grounds of appeal] were conclusions flowing from the other grounds of appeal [see use of word "therefore" at second paragraph 9] and without particulars, they do not alter [or affect] the finding that I made above. For these reasons, this application is dismissed.

RECORDED: NOT TRANSCRIBED

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: Wagma Aziza

Date: 3 November 2004
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