SZDCV v Minister for Immigration

[2016] FCCA 3264

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZDCV v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3264

Catchwords:
MIGRATION – Migration Act1958 (Cth) – application for protection visa based on complementary protection criteria – judicial review of Tribunal decision – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 48A, 65, 417, 476

Cases cited:

CLI15 v Minister for Immigration [2016] FCA 1223
Minister for Immigration v SZVCH [2016] FCAFC 127

SZGIZ v Minister for Immigration (2013) 212 FCR 235

Applicant: SZDCV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 276 of 2016

Judgment of: Judge Dowdy

Hearing date: 30 May 2016

Date of Last Submission: 30 May 2016

Delivered at: Sydney

Delivered on: 21 December 2016

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Ms L Buchanan.

Solicitors for the Respondents: Australian Government Solicitor.

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The application filed in this Court on 10 February 2016 is dismissed with costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 276 of 2016

SZDCV

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant is a female citizen of Indonesia aged 55 years, having been born on 22 November 1961 in Medan, Indonesia.

2. By application filed in this Court on 10 February 2016 she seeks to quash and have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 19 January 2016 affirming a decision of a Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 25 September 2014 refusing to grant the Applicant a Protection (Class XA) visa (Protection visa) under s.65 of the Migration Act 1958 (Cth) (Act).

Background

1. The Applicant arrived in Australia on 3 January 1997 on a Tourist (Subclass 676) visa and has remained in Australia since that date.

2. On 27 March 1997 she lodged an application for a Protection visa which was refused by a Delegate on 7 April 1997 and this refusal was affirmed on review by the Refugee Review Tribunal (RRT) on 11 August 1998, but upon judicial review this decision was set aside and the Applicant’s Protection visa application was remitted to the RRT for redetermination.

3. However, on 18 February 2004 the RRT again affirmed the decision of the Delegate not to grant the Applicant a Protection visa.

4. The Applicant then sought unsuccessful judicial review of this second RRT decision and subsequently on 26 July 2010 made a request that the Minister substitute a more favourable decision on her behalf under s.417 of the Act, but on 6 August 2010 the Minister decided not to consider that request.

5. Thereafter, following the decision of the Full Court of the Federal Court of Australia in SZGIZ v Minister for Immigration (2013) 212 FCR 235 (SZGIZ), the Applicant on 25 September 2013 made a further Protection visa application. As stated at [2] above, this application was refused by a Delegate on 25 September 2014 and the refusal was affirmed by the Tribunal in its Decision Record of 19 January 2016.

Complementary Protection Criteria and s.36(2)(aa) of the Act

1. SZGIZ held, in effect, that s.48A of the Act, which imposes a bar on a non-citizen making a further application for a Protection visa onshore where an earlier Protection visa application has been refused, did not prevent a Protection visa application being made based on complementary protection grounds as provided for in s.36(2)(aa) of the Act if the earlier Protection visa application had been made before the commencement of the operation of s.36(2)(aa) on 24 March 2012.

2. Burley J in the Federal Court of Australia in CLI15 v Minister for Immigration [2016] FCA 1223 at [36] to [41] has recently and conveniently summarised the complementary protection criteria under s.36(2)(aa) as follows:

   [36]Subsection 36(2)(aa) provides that a criterion for a protection visa is that the applicant for the visa is:

   A non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ...

   [37]  A person who is not a citizen of Australia is a “non-citizen”.

   [38]Section 36(2)(aa) recognises that a non-citizen who is not entitled to a protection visa because he or she is not a refugee may nevertheless be entitled to protection in Australia under the obligations owed by Australia to afford protection, including under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 and the International Covenant on Civil and Protection Rights 1966; Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 (SZQRB) at [70] and [100] (Lander and Gordon JJ), and [300] and [313] (Besanko and Jagot JJ).

   [39]The proper test is whether there is a “real chance” that an applicant will suffer “significant harm” if returned to her or his country of origin: SZQRB at [242] – [246] (Lander and Gordon JJ, with whom Besanko and Jagot JJ agreed at [297] and Flick J at [342]).

   [40]Subsection 36(2A) in turn prescribes the circumstances in which a non-citizen will suffer significant harm as being if:

   (a) the non-citizen will be arbitrarily deprived of his or her life; or
   
   (b) the death penalty will be carried out on the non-citizen; or
   
   (c) the non-citizen will be subjected to torture; or
   
   (d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
   
   (e) the non-citizen will be subjected to degrading treatment or punishment.

   [41]The phrase “significant harm” does not bear its ordinary and natural meanings. Its meaning is limited to that defined by section 36(2A); SZTMC v Minister for Immigration and Border Protection [2015] FCA 1282 (SZTMC) at [10] (Perry J). It is apparent from this definition that a requirement that a person suffer significant harm imposes a high threshold; SZTMC at [10].

Claims for Protection

1. The Applicant’s claims for protection were much the same before both the Delegate and the Tribunal and were summarised at [7] of the Tribunal’s Decision Record as follows:-

   7.Her express claims and those arising on the evidence are that she fears harm in Indonesia for reason of the following, including cumulatively: when she left Indonesia in 1997 she was a single mother of 2 children; she had been abandoned by her husband; she was pursued by an army officer of high rank who sought a sexual relationship with her; she fears that, should she return to Indonesia this army man will again pursue her and harm or kill her. She refers to “terrible circumstances” which affected her life in Indonesia and which informed her decision to depart in 1997, including financial hardships. She fears returning to Indonesia after such a long absence and claims that “I have no life in Indonesia and nothing to look forward to”. She also refers to political activities of her former husband and to political opinions imputed to her in Indonesia, and to mistreatment of Chinese Christians generally in Indonesia. These claims are considered in detail below.

2. The Delegate in her Decision Record referred to SZGIZ and stated that s.48A of the Act did not prevent the Applicant from making a further Protection visa application on complementary protection grounds, and that the Applicant’s visa application was valid, but she then appears to have considered the Protection visa application under Refugees Convention grounds as well as under complementary protection grounds. Nevertheless, the Delegate did not accept either criteria and she refused to grant the Applicant a Protection visa. The Delegate did not consider that the Applicant had provided credible testimony and did not accept any of her claims to fear harm on return to Indonesia or that she genuinely had a well-founded fear of persecution. Further, the Delegate found that she was not satisfied that there was a real risk that the Applicant would suffer significant harm if she were to return to Indonesia.

Application for Review to Tribunal

1. The Applicant applied to the Tribunal for review of the Delegate’s decision on 21 October 2014 and appeared before the Tribunal at a hearing on 12 January 2016 with the assistance of an interpreter.

2. The Tribunal correctly confined itself to considering the Protection visa application according to the complementary protection grounds under s.36(2)(aa): Minister for Immigration v SZVCH [2016] FCAFC 127.

3. The Tribunal was not satisfied that the Applicant faced a real risk of significant harm if she were to return to Indonesia. It stated at [47] as follows:

   Taking into account all the evidence before it, the Tribunal is not satisfied that the applicant faces, in Indonesia, a real risk of: being be (sic) arbitrarily deprived of her life; or the death penalty will being (sic) carried out on her; being subjected to torture; being subjected to cruel or inhuman treatment or punishment; or being subjected to degrading treatment or punishment.

4. Similarly to the Delegate, the Tribunal had significant concerns regarding the truth of central aspects of the Applicant’s claims and evidence. It found at [12] of its Decision Record that cumulatively those claims cast doubt on her reliability as a witness of truth, and the Tribunal was not satisfied with the claim of central aspects of her circumstances in Indonesia.

5. The Tribunal did not accept that the Applicant was threatened or pursued for sex or otherwise by an army officer in Indonesia at any time or that there would be a risk of harm in connection with this claim if she returned to Indonesia. The Tribunal did not accept that the Applicant or her former husband had any political profile or suspected links with any political opinion in Indonesia.

6. At the Tribunal hearing the Applicant apparently suggested that her husband had been murdered, possibly by the army officer who she claimed was threatening or pursuing her for sex. The Tribunal found at [39] that the Applicant’s views about her husband’s death were speculative and it was not satisfied that his death involved foul play or had any implications for the safety of the Applicant should she return to Indonesia. The Tribunal also found at [40] that there was not any real risk of significant harm to the Applicant because she was a Chinese Christian.

7. The Tribunal did accept that the Applicant faced financial hardship in Indonesia prior to coming to Australia in 1997. However, it was not satisfied that upon return to Indonesia she would suffer financial hardship which rose to the level of significant harm as contemplated by the complementary protection criterion.

8. Accordingly, the Tribunal was not satisfied that the Applicant was a person in respect of whom Australia had protection obligations under the complementary criterion set out in s.36(2)(aa) and it affirmed the Delegate’s decision not to grant a Protection visa to her.

Grounds of Attack on Tribunal Decision in this Court

1. The Grounds appearing in the Application filed on 10 February 2016 are as follows:

   1.The Tribunal accepted what happened to me in Indonesia yet failed to accept that I will suffer financial hardship, emotional hardship, and other hardship which rise to the level of significant harm.

   2.The Tribunal failed to acknowledge the real risk of significant harm should I return to Indonesia.

2. Unfortunately, neither the Applicant herself nor her daughter, whom I permitted to address the Court, could meaningfully advance the Grounds relied upon in this proceeding.

3. Obviously this case is an unfortunate one for the Applicant. She has now resided in Australia for more than nineteen years and is understandably reluctant at her age to return to Indonesia. On the other hand, she has known since the first refusal of a Protection visa by the first Delegate on 7 April 1997 that her continued residence in this country was no sure thing.

4. The jurisdiction of this Court under s.476 of the Act is limited to providing relief in respect of jurisdictional error by the Tribunal and that jurisdiction does not involve reviewing the merits of the Tribunal’s decision nor the factual findings made by it.

5. Having regard to the difficulty faced by the Applicant in making meaningful submissions to this Court in support of her Grounds, I have independently considered the Decision Record of the Tribunal, but I cannot discern jurisdictional error. The Tribunal’s decision does not appear in any way irrational, capricious, lacking an intelligible justification or otherwise legally unreasonable, and the findings made by the Tribunal appear to have been open to it upon the materials then before it.

Conclusion

1. In these circumstances the Application must be dismissed with costs.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date: 21 December 2016