SZRZT v Minister for Immigration

[2015] FCCA 1957

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRZT v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1957

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Refugees and Migration Division) – Protection (Class XA) visa – complementary protection – bias – where applicant failed to identify any conduct that establishes bias – impressible challenge to the findings of fact – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 36(2)(b), 36(2)(c), 476

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 Street

Hearing date: 17 July 2015

Date of Last Submission: 17 July 2015

Delivered at: Sydney

Delivered on: 17 July 2015

REPRESENTATION

Applicant appeared in person

Solicitors for the Respondents: Ms S Given
Sparke Helmore

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further documents in this regard is dispensed with.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5800.

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

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal affirming a decision of the delegate not to grant the applicant a protection visa. The decision of the Tribunal was made on 25 March 2015.

2. The applicant entered Australia on 20 September 2001 as the holder of a valid subclass TR676 (Tourist) visa which had been granted on 17 September 2001.  The applicant applied for protection on 10 December 2001 which was refused on 12 February 2002.  The applicant sought a review of that decision which the Tribunal affirmed on 14 February 2003.  The applicant thereafter unsuccessfully sought ministerial intervention and judicial review.

3. The applicant submitted a further application for protection on 31 January 2013 which, consistent with the decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71, was assessed in relation to the issue of complementary protection under s.36(2)(aa) or the family membership criteria under s.36(2)(b) or (c). The delegate refused the application on 2 May 2014.

4. The applicant appeared before the Tribunal to give evidence on 4 March 2015 and was assisted by an interpreter.  The applicant was found to be a citizen of Fiji and her claim for complementary protection was assessed against that country as national country. 

5. The grounds of the application are as follows:

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

   2. 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.

   3. The Refugee Review Tribunal failed to lawfully consider my claims that r raised in regards to my fear of significant harm at the hands of my husband for having an affiar 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 l submitted in regards to these threats.

6. The applicant submitted orally that everything she said was true. The respondent submitted that the first and third grounds were an impermissible merits review and could not succeed. The first respondent submitted that there was no substance in the bare assertion that the Tribunal misconstrued s.36(2)(aa). It is clear from para.7 of the Tribunal’s reasons that it correctly identified the legal criteria.

7. In relation to the second ground, the first respondent submitted that the only conduct identified appeared to be the adverse findings and that a fair-minded observer would not, by reason of adverse findings, believe that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits.  The first respondent submitted that the allegation of bias was one that had to be distinctly made and clearly proven, that there was no substance in ground 2 and that it failed to identify any conduct to establish bias.

8. In relation to ground 3, the first respondent submitted that the Tribunal had clearly considered the applicant’s claim in relation to fear of being harmed by her husband and that ground 3 was in substance an impermissible challenge to the findings of fact made by the Tribunal.

9. In response to the first respondent’s submissions, the applicant maintained that all that she had told the Tribunal was true.  Nothing was said by the applicant that identified any basis to find a jurisdictional error by the Tribunal.  I accept the first respondent’s submission that the substance of ground 1 and ground 3 are an impermissible challenge to the adverse findings of fact by the Tribunal.  I accept the first respondent’s submission that the adverse findings of fact were open on material before the Tribunal. 

10. I accept the first respondent’s submission that the allegation in ground 2 of bias has not been distinctly made and clearly proven.  I also accept the first respondent’s submission that a hypothetically fair-minded lay person would not, by reason of the adverse findings, believe that the Tribunal might not bring an impartial and independent mind to the determination of the matter on its merits.  I accept the first respondent’s submission that there was no other conduct identified in support of ground 2, and that no inference of bias or pre-judgment can be drawn from the mere fact of adverse findings by the Tribunal.

11. The Tribunal carefully identified the principles relating to complementary protection, and there is no substance in the proposition that the Tribunal misconstrued the s.36(2)(aa) or (b) or (c).

12. The applicant appeared before the Tribunal on 4 March 2015 to give evidence and to present arguments, and was assisted by an interpreter.  The Tribunal raised with the applicant the lack of details about her claims concerning her husband.  Those matters were of concern to the Tribunal in respect to the applicant’s credibility.  The Tribunal identified that the claimed fear in relation to the applicant’s husband was not made in the application for protection lodged on 31 January 2013, and asked the applicant to explain why there had been delays in making that claim. 

13. The Tribunal identified that the country information suggested that the police would intervene if there was a threat of violence by a husband, and it was in those circumstances the Tribunal made adverse findings as follows:

    27. On the basis of the available information and in consideration of the evidence as a whole, the Tribunal is satisfied that the only claim which the applicant is pressing relates to her fear from her husband because of the extramarital affair. The Tribunal accepts as plausible that the applicant has had an extramarital affair and that it is plausible that her husband has discovered the affair.  In the course of the hearing, the Tribunal gave the applicant many opportunities to provide details about the claimed threatening phone calls.  The applicant’s responses in relation to those questions were general and lacked significant details, raising doubts about the claims.

    28. The claim relating to the fear from the husband was not made in the last application for a protection visa, despite the claimed threatening calls.  The Tribunal is concerned that the applicant delayed making this substantial claim and her explanation is not persuasive. The Tribunal is satisfied that the delay in making the claim raises serious doubts about the applicant’s claims as well is her credibility. Furthermore, the Tribunal notes that the applicant has had an adverse migration history, as referred to in the delegate’s decision record. Whilst the Tribunal appreciates that without more, such a history might not be a significant issue to be taken into consideration, however when this is considered with other material, the Tribunal is satisfied that such a history raises doubts about the applicant’s current claims. The applicant has provided documents in support of her claims, essentially hand written notes/letters. Given the credibility concerns, the Tribunal is of the view that it would not be difficult for the applicant to construct those documents. In consideration of the evidence as a whole, the Tribunal is not satisfied that the letter/notes contain truthful information. In relation to the letter from Punchbowl Full Gospel Tabernacle, the Tribunal is satisfied that the applicant is a valued member of the church but the letter does not corroborate the applicant’s claims.

    29. In consideration of the evidence as a whole, the Tribunal is not satisfied that the applicant’s husband has been threatening towards her because she has had the extramarital affair. Whilst the Tribunal accepts as plausible that the husband might have been displeased about the affair, on the basis of the available information, the Tribunal is not satisfied 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).  On her own evidence, if she were to return to Fiji, she would not live with her husband but she would live alone in another part of Fiji.

    30. In essence and for the stated reasons the Tribunal is not satisfied that there is a real risk of significant harm occurring to the applicant on her return to Fiji, on the basis of the extramarital affair or any other ground.

    31. For those reasons, the Tribunal finds that 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. Therefore she does not satisfy the requirements of s.36(2)(aa).  The applicant has not made any claims under s.36(2)(b) or (c).

    32. For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa) for a protection visa.  As she does not satisfy the criteria for a protection visa, she cannot be granted the visa. 

14. I find there is no jurisdictional error of the kind alleged in the grounds of the application and, that on the material before the Court, I am satisfied that the Tribunal conducted the review in accordance with the statutory regime and that there was no jurisdictional error.  I am satisfied that the applicant had a genuine hearing, and the adverse findings of facts were open on the material. 

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

Associate: 

Date:  21 July 2015