SZRZT v Minister for Immigration

[2017] FCCA 438

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRZT v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 438

Catchwords:
MIGRATION – Application for review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision of a delegate of the first respondent not to grant the applicant a protection visa – whether Tribunal’s decision unreasonable – whether Tribunal acted in a way that gave rise to apprehension of bias – whether Tribunal considered applicant’s claims – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 48A

Cases cited:

SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71

Applicant: SZRZT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1002 of 2015

Judgment of: Judge Manousaridis

Hearing date: 27 February 2017

Delivered at: Sydney

Delivered on: 10 March 2017

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents:

Ms C Tipene of

Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1002 of 2015

SZRZT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a citizen of Fiji, seeks judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant to the applicant a Protection (Class XA) visa (Protection visa).

Migration history

1. The applicant first arrived in Australia on 20 September 2001 on a tourist visa. On 10 December 2001 the applicant’s husband applied for a protection visa to which the applicant was a secondary applicant. On 12 February 2002, a delegate of the Minister refused to the grant the applicant and her husband protection visas and, on 10 December 2002, the Refugee Review Tribunal affirmed the delegate’s decision.

2. The applicant lodged a second protection visa application on 12 December 2005 but that application was deemed invalid by reason of s.48A of the Migration Act 1958 (Cth) (Act) and the Tribunal decided it did not have jurisdiction to determination the application on 22 May 2006. On a number of occasions between 2006 and 2012 the applicant unsuccessfully sought Ministerial intervention.

3. On 31 January 2013 the applicant lodged another protection visa application which was accepted as valid because of the Full Federal Court’s decision in SZGIZ v Minister for Immigration and Citizenship[1]. On 2 May 2014 a delegate of the Minister refused to grant the applicant a protection visa and, on 25 March 2015 the Administrative Appeals Tribunal affirmed the delegate’s decision. It is that decision the applicant seeks judicial review of in this Court.

   [1] [2013] FCAFC 71

Claims for protection

1. In her application for a protection visa received by the Department on 31 January 2013, the applicant claimed she fears returning to Fiji because she will be terrorised by the Fijian military, because of the political situation in Fiji, because of the lack of freedom to speak freely, lack of justice, and “support of return to democracy”.[2] The applicant claimed the military harmed her family, her husband was attacked by men he did not know, and the applicant’s husband was unable to do anything.[3] The applicant further claimed the military will harm her, question her and beat her, like they treated her husband when he returned to Fiji in 2009. The applicant asked her husband to provide a statement but “he said they are not allowed to do that”. The applicant claimed there is “no law” in Fiji and she fears she will be harmed because it has happened so many others.

   [2] CB7

   [3] CB8

2. In a statutory declaration dated 14 July 2013,[4] the applicant further claimed she cannot return to Fiji because she will be tortured, beaten and killed by her husband, who is in the army, for having an extramarital affair. The applicant claimed she received three letters from her husband expressing disappointment because they were still married and the applicant had brought him shame; stating he was happy the applicant was in detention; threatening the applicant that if she returns to Fiji he will “teach [the applicant] a lesson” and “he will make sure that he will beat me and strip me naked in front of his family and he will make sure that he will kill me”; stating he was still in the army and that if he could not kill her personally, he would get the army to do it for him, and that the applicant should be scared and should kill herself like her brother-in-law who died in detention. The applicant claimed it is taboo in Fiji for married women to have an affair and claimed that since her husband’s departure in 2009, the applicant has been having an affair with a man she loves.

   [4] CB31-33

Tribunal decision

1. The Tribunal first noted the applicant’s migration history in Australia. The Tribunal referred to the decision of SZGIZ v Minister for Immigration and Citizenship and, applying the Full Federal Court’s reasoning in that decision, found it only had to determine the application for review against the complementary protection criterion specified in s.36(2)(aa) of the Act.

2. The Tribunal referred to evidence the applicant provided, namely a statement dated 18 August 2012 from Mr R and four hand written letters or notes some signed by Mr W, whom the applicant claimed was her husband, and to the evidence given by the applicant at the hearing before it on 4 March 2015.[5] The Tribunal also referred to a letter from a church.[6]

   [5] CB93, [25]. The documents are at CB48-CB51

   [6] CB83

3. The Tribunal noted the applicant’s claiming before the delegate in an interview on 15 April 2014 that her only fear of returning to Fiji relates to her being harmed by her husband because of the affair and was satisfied, on the basis of the available information and in consideration of the evidence as a whole, that the only claim the applicant was pressing related to her fear of her husband because of the extramarital affair.

4. The Tribunal accepted as plausible the applicant has had an extramarital affair, that her husband had discovered the affair and might have been displeased about the affair.[7] The Tribunal referred to its giving the applicant an opportunity to provide details of the claimed threatening phone calls the applicant received from her husband and found the applicant’s responses in relation to those questions were general and lacked significant details raising doubts about the claims.[8]

   [7] CB93-94, [27], [29]

   [8] CB93, [27]

5. The Tribunal referred to the applicant’s failing to include the claim to fear harm from her husband in the last protection visa application, despite the claimed threatening calls she received, and found the applicant’s explanation for the delay was not persuasive.[9] The Tribunal was satisfied the delay in making the claim raised serious doubts about the applicant’s claims as well as her credibility. The Tribunal found that while the applicant’s migration history might not be a significant issue to be taken into consideration, when it is considered with other material, the Tribunal was satisfied such a history raises doubts about the applicant’s claims. The Tribunal was of the view, given its concerns about the applicant’s credibility, that it would not be difficult for the applicant to construct the documents she provided in support of her claims. The Tribunal concluded that “[i]n consideration of the evidence as a whole, the Tribunal is not satisfied that the letter/notes contain truthful information”. The Tribunal accepted that the letter from the church was genuine, and was satisfied the applicant is a valued member of the church. The Tribunal was not satisfied, however, the letter from the church corroborated the applicant’s claims.[10]

   [9] CB94, [28]

   [10] CB94, [28]

6. The Tribunal was not satisfied the applicant’s husband has been threatening towards her because she had the extramarital affair or that there is a real risk of significant harm occurring to the applicant from the army or her husband on the basis of the affair or any other basis.[11] The Tribunal found there are no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant’s being removed from Australia to Fiji, there is a real risk that she would suffer significant harm in the form of, arbitrary deprivation of life, or the death penalty being carried out, or torture, or cruel or inhuman treatment or punishment, or degrading treatment or punishment or that the applicant is a person in respect of whom Australia has protection obligations, and that as a result, the applicant does not satisfy the requirements of s.36(2)(aa) of the Act.[12]

   [11] CB94, [29]

   [12] CB94, [31]-[32]

Grounds of application

1. The application filed with this Court contains three grounds of application. The first ground is:

   The Refugee Review Tribunal made jurisdictional errors in statutory construction, and it misconstrued section 36(2A)(aa) [sic] of the Migration Act 1958 and that the Tribunal’s decision was legally unreasonable. (Particulars will be provided at a later date)

2. There is nothing in the Tribunal’s decision that suggests the Tribunal misconstrued s.36(2)(aa) of the Act. In any event, the ground on which the Tribunal rejected the applicant’s claims is that it did not consider the applicant’s claims to be credible. It was reasonably open to the Tribunal for the reasons it gave, not to consider the applicant’s claims to be credible. It did not act unreasonably in not being so satisfied.

3. In response to my invitation to make submissions in relation to this ground, the applicant, who is not legally represented, submitted the Tribunal did not accept her evidence, and did not accept her claims about her current marital status. These submissions go no further than expressing disagreement with the Tribunal’s decision not to accept the applicant’s claims. As I have already concluded, it was reasonably open to the Tribunal to so decide.

4. The second ground is (errors in original):

   The Refugee Review Tribunal’s decision is void for a and on the grounds of reasonable apprehension of bias as the Tribunal member did not bring an open impartial mind to the review of my protection visa application as it had already made up its mind to affirm the decision under review.

5. The applicant submitted the Tribunal did not accept her claims, even though she gave evidence in support of her claims. In response to my question, the applicant submitted the Tribunal’s mind was closed to the applicant’s case, and that the basis of that submission was that the Tribunal did not accept the applicant’s evidence. This submission is another way of the applicant’s expressing her disagreement with the Tribunal’s decision not to accept the credibility of the applicant’s claims. As I have already found, it was reasonably open to the Tribunal not to accept the applicant’s claims.

6. The third ground is:

   The Refugee Review Tribunal failed to lawfully consider my claims that I raised in regards to my fear of significant harm at the hands of my husband for having an affair and that he has threatened me while I am in Australia that he was going to kill me and failed to consider the evidence in the documents I submitted in regards to these threats.

7. The applicant made no submission in relation to this ground. As it stands, the ground cannot succeed. The Tribunal did consider the applicant’s evidence and the documents on which the applicant relied.

Conclusion and disposition

1. The applicant has not succeeded on any of her grounds. I propose, therefore, to order that the application be dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 10 March 2017