SZRSX v Minister for Immigration & Anor
[2016] FCCA 622
•22 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRSX v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 622 |
| Catchwords: MIGRATION – Review of decision of the former Refugee Review Tribunal – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36,477 |
| AMA15 v Minister for Immigration [2015] FCA 1424 SZGIZ v Minister for Immigration [2013] FCAFC 71 SZKOX v Minister for Immigration& Anor [2015] FCCA 789 SZRSK v Minister for Immigration & Anor [2012] FMCA 915 |
| Applicant: | SZRSX |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1538 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 22 March 2016 |
| Delivered at: | Sydney |
| Delivered on: | 22 March 2016 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr S Dayal of Clayton Utz |
INTERLOCUTORY ORDERS
The name of the second respondent is amended to the “Administrative Appeals Tribunal”.
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1538 of 2015
| SZRSX |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The decision was made on 13 May 2015. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The Tribunal’s decision was limited to the complementary protection criterion in s.36 of the Migration Act 1958 (Cth) (Migration Act). A previous Tribunal had earlier dealt with the applicant’s claims for protection under the Refugees Convention. The applicant had sought judicial review of that first Tribunal decision.
In SZRSK v Minister for Immigration & Anor[1], I granted the applicant an extension of time for that application pursuant to s.477(2) of the Migration Act. In SZRSK v Minister for Immigration & Anor[2] I found that the first Tribunal decision was free from jurisdictional error and dismissed the judicial review application. An issue in those decisions was the status of the applicant’s former husband.
[1] [2012] FMCA 915.
[2] [2013] FMCA 72.
The applicant and her former husband were divorced at the time of the first Tribunal decision, but the Department had received an anonymous letter suggesting that they were still living together. I found that the first Tribunal was correct in determining that the applicant’s former husband could not be a party to her review application. The applicant told me today that her former husband has made his own claims for protection. I do not consider those earlier decisions have any continuing relevance in this case.
Background facts relating to these proceedings are otherwise dealt with in the Minister’s outline of legal submissions.
The applicant is a citizen of Fiji, who arrived in Australia on a tourist visa on 16 May 2011. She lodged her first application for a protection visa on 30 September 2011. That application was refused by a delegate of the Minister on 30 September 2011 and the decision was affirmed by the (differently constituted) Tribunal on 20 March 2012.[3]
[3] Court Book (CB) 93 at [2]-[5].
Pursuant to the decision in SZGIZ v Minister for Immigration[4] (SZGIZ), the applicant made a second application for a protection visa, which is the subject of these proceedings, on 14 February 2014. That application was refused by the Delegate on 17 June 2014. The Tribunal affirmed the Delegate's decision on 13 May 2015.[5]
[4] [2013] FCAFC 71.
[5] CB 92-93.
Protection claims
The applicant's claims are not dissimilar to those advanced in her first protection visa application. In short, they seek to establish that the applicant was "dominated" by her supervisor at her work and was sexually abused for a number of years. The applicant's husband then abused her when he found out about this "relationship" and she fears harm from both of them if she returns to Fiji. The applicant cites a lack of protection for women and discrimination in Fiji to claim that she will not be able to relocate, find another job and feed her children.[6]
[6] CB 95 at [22].
Tribunal decision
The Tribunal essentially found that the applicant lacked credibility in that she was not a "witness of truth".[7] This finding was based on the inconsistencies identified by the Tribunal in the applicant's evidence.
[7] CB 109 at [94]
The Tribunal considered the applicant's claims against the complementary protection criteria as set out in s.36(2)(aa) of the Migration Act and found that the applicant was not a "credible, truthful, or reliable witness". It found that the applicant's "vague, evasive, inconsistent and non-credible evidence" undermined the strength of her claims with respect to her job as a salesperson and her claims of continuous abuse.[8] The Tribunal noted that the inconsistencies in the applicant's evidence went back to her 2011 Department interview for her first application, when she changed her evidence about whether she approached the police and a woman's crisis centre for help regarding her situation.[9] Given the seriousness of the applicant's claims, the Tribunal was concerned about her "evasive and changing evidence" when discussing her husband and his reaction to her abuse.[10] The Tribunal observed that the applicant's claims were not assisted by the fact that she travelled to Australia with her husband shortly after their divorce to visit her husband's brother.[11]
[8] CB 97-98 at [30]-[39].
[9] CB 100-101 at [40]-[45].
[10] CB 101-102 at [46]-[54].
[11] CB 103 at [58]-[59].
The Tribunal referred to other sources of evidence, including a dob-in letter alleging that the applicant and her husband had given false information about their circumstances, were living together and working without permission and that the applicant had falsified rape allegations. The Tribunal did not consider it "necessary to rely on this letter in making its findings" but held that its findings were "further supported by the letter".[12]
[12] CB 104-105 at [69]-[71].
The Tribunal was not satisfied that there was a real risk that the applicant would suffer significant harm on her return to Fiji for any of the reasons claimed.[13] The Tribunal was not satisfied that the applicant was a person in respect of whom protection obligations were owed under s.36(2)(aa) of the Migration Act and, accordingly, affirmed the decision under review.
[13] CB 108-109 at [88]-[93].
The present proceedings
These proceedings began with a show cause application filed on 5 June 2015. The applicant continues to rely upon that application. The grounds in the application:
1.The Refugee Review Tribunal decision failed to understand my fear of harm and persecution if I am compelled to return to Fiji.
2.The Tribunal's decision is contrary to the previous decision made on 20 March 2012 a copy of which is on file and in which the previous Member of the Tribunal accepted that the threats and abuse were not done for any of the five convention reasons. Now the new Tribunal Member denied the fear of persecution and threats and such denial is an error of law because it is based on assumption.
3.The Refugee Review Tribunal Member denied me [complementary] protection based on her assumption that I am not a witness of truth. Such statement is not true.
4.I shall provide the transcript of the hearing and ask the Honourable Court to give me a copy of all my documents as I believe I have an arguable case.
The application is supported by two affidavits. The first was made by the applicant and filed with her application. The second was made by Mr Toufic Laba Sarkis on 20 July 2015 and filed the following day. Mr Laba Sarkis’ affidavit introduces a transcript of the hearing conducted by the Tribunal. I received both affidavits. I also have before me as evidence the court book filed on 7 July 2015.
Only the Minister filed written submissions in accordance with procedural orders made by a registrar. I invited oral submissions from the applicant today. She told me that she could not return to Fiji because the situation there had worsened for her. She fears torture in Fiji.
It is apparent that the applicant’s submissions were limited to her claims for protection. Subject to some observations I shall make in relation to the second ground of review, the Minister’s submissions deal adequately with those grounds. I agree with the Minister’s submissions.
As a general response to the applicant's assertions, it is appropriate to highlight the legal framework applicable to credibility findings. It is trite that the issue of credibility is a finding of fact for the Tribunal par excellence,[14] and mere disagreement with the Tribunal's finding is not a ground of judicial review.[15] The applicant's grounds predominantly carry a quality of disagreement with the Tribunal's findings without appreciating the question of jurisdictional error. The grounds are in large measure an invitation to the Court to engage in merits review.[16]
[14] Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] (McHugh J).
[15] Minister for Immigration v Eshetu (1999) 197 CLR 611, 626 at [40]; Minister for Immigration v SZMDS (2010) 240 CLR 611, 645-646 at [124] (SZMDS).
[16] Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35-36; Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259, 272.
Ground 1
Ground 1 is unparticularised and merely asserts that the Tribunal failed to "understand" the applicant's claimed fear of harm and persecution. Disregarding the lack of specificity in Ground 1, a fair reading of the Tribunal's decision record (and the Tribunal hearing transcript filed by the applicant) shows that the Tribunal dealt with the applicant's claims in their entirety. A failure to understand implies a serious mistake of fact - this cannot be established in circumstances where the Tribunal's findings were clearly open on the material before it.[17] In this case, the Tribunal's adverse credibility findings were based upon the ever-changing and inconsistent evidence provided by the applicant. Ground 1 must accordingly fail.
[17] See SZMDS 649 at [135] (Crennan and Bell JJ).
Ground 2
Ground 2 is on its face hard to understand and fails to identify clearly any jurisdictional error. There is no authority to suggest that the findings of the second Tribunal are in any way bound by the findings of a previous Tribunal.[18] In this case, the present Tribunal referred to evidence before the previous Tribunal but clearly applied its own reasoning pursuant to its powers.[19]
[18] NANX v Minister for Immigration [2003] FCA 734 at [13] citing Collins v Minister for Immigration (1981) 58 FLR 407, 411-412. In SZNOL v Minister for Immigration [2012] FCA 917 Emmett J held at [23] that s.416 of the Migration Act is permissive: "[I]n considering a further application, the tribunal is not required to consider certain information, although it is not precluded from doing so, and the tribunal may have regard to and take to be correct any decision made about or because of that information, but is not obliged to do so" (emphasis added). This interpretation was supported in SZSLM v Minister for Immigration [2014] FCCA 1043 and SZKOX v Minister for Immigration& Anor [2015] FCCA 789 at [19]-[26].
[19] See particularly CB 105 at [71] and [74].
It is also unclear how the Tribunal's decision is "contrary to the previous decision made on 20 March 2012". The previous Tribunal rejected the applicant's claim on a completely different basis pursuant to the refugee criteria. By the applicant's own admission, the previous Tribunal "accepted that the threats and abuse were not done for any of the five convention reasons". Even if they were relevant, the findings of the previous Tribunal do not support the applicant's claims for protection in this case.
Cumulatively, the applicant asserts that the Tribunal's findings are based upon "assumption". The applicant asserts as much because the Tribunal's findings were adverse to her claims. As discussed above, mere disagreement with the Tribunal's findings is not a ground for judicial review. For all these reasons, Ground 2 fails to establish a comprehensible argument capable of demonstrating an arguable case. It must fail.
In relation to this ground, I have considered whether any argument of jurisdictional error is apparent from the Tribunal’s limitation of the review to the complementary protection criterion.
In that regard, I note that the decision of the delegate on the second application dealt with both the refugee and complementary protection criteria. In SZVCH v Minister for Immigration & Anor[20], I found that in such circumstances the Tribunal was obliged to review all of the delegate’s decision and not just part of it. However, in AMA15 v Minister for Immigration[21] the Federal Court expressly disapproved my decision. The Federal Court found that in circumstances such as the present, the Tribunal is limited in its review to the complementary protection criterion. That position was reaffirmed in SZRAG v Minister for Immigration[22]. I consider myself bound by those decisions.
[20] [2015] FCCA 2950.
[21] [2015] FCA 1424.
[22] [2016] FCA 189 at [23].
Ground 3
As noted above, credibility findings are within the jurisdiction of the Tribunal par excellence and were open on the material before it. As such, Ground 3 fails to establish any jurisdictional error and accordingly must fail.
Ground 4
Ground 4 discloses no basis for judicial review and speaks only to the applicant's intention to provide documents to the Court which was met. The transcript generally, and at pages 22-25, 31-32, 36-41, 44-45, 48-50 and 54 in particular, reveals a thorough discussion of the applicant's claims and that the Tribunal's concerns about the applicant's credibility were discussed with her. Ground 4 must fail.
In the circumstances, the applicant is unable to demonstrate any arguable case of jurisdictional error by the Tribunal.
I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application is dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicant claims impecuniosity, but that is not a reason for the Court to refrain from making a costs order. I explained to the applicant the consequences of the making of a costs order in a specific amount.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 24 March 2016
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