SZOSP v Minister for Immigration and Citizenship (No. 2) [2011] FCA 586

Procedural Posture

Migration Protection Visa Judicial Review Appeal / Appeal to the Federal Court of Australia From a Federal Magistrates Court Decision Dismissing Review of a Refugee Review Tribunal Decision

Legal Issues

1. 1 ['Whether the Refugee Review Tribunal misconceived or misapplied the statutory notion of serious harm under s 91R of the Migration Act 1958 (Cth).' "Whether the Tribunal failed to consider the appellant's claimed harassment, intimidation, threats and physical or mental consequences when assessing well-founded fear of persecution." "Whether the Federal Magistrates Court's orders were inconsistent with its reasons, including the observation that the appellant did not strike the Federal Magistrate as an untruthful person." 'Whether the appeal should be further adjourned because the appellant relied on a pre-existing medical certificate and did not appear.']

Ratio Decidendi

The Tribunal did not fail to apply s 91R or ignore the appellant's claimed serious harm; it considered the alleged threats, detention, interrogation, assault, phone calls and physical effects, but rejected the appellant's claims on credibility grounds and for reasons open to it. Because the Tribunal's decision was made within jurisdiction, and the Federal Magistrate's observation about the appellant's possible truthfulness was not inconsistent with dismissing the review application, neither appeal ground was made out.

Court Disposition

The appeal was dismissed; leave to rely on ground 1 was refused; the appellant was ordered to pay the first respondent's costs of and incidental to the appeal.

Orders

• ['The appeal is dismissed.' 'The costs of the first respondent of and incidental to the appeal be paid by the appellant.']