SZSLV v Minister for Immigration

[2013] FCCA 367

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSLV & ANOR v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 367

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal – no arguable case – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476

Federal Circuit Court Rules 2001 (Cth), r.44.12

Re Minister for Immigration & Multicultural Affairs; Ex parte  Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592; (2006) 81 ALJR 515

First Applicant: SZSLV

Second Applicant: SZSLW

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2 of 2013

Judgment of: Judge Nicholls

Hearing date: 13 May 2013

Date of Last Submission: 13 May 2013

Delivered at: Sydney

Delivered on: 13 May 2013

REPRESENTATION

The Applicants: In person

Appearing for the Respondents: Ms B Rayment

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application made on 2 January 2013 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicants pay the first respondent’s costs set in the amount of $3326.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2 of 2013

SZSLV

First Applicant

SZSLW

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex tempore; Revised from Transcript

1. I have before me today an application made on 2 January 2013, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 7 December 2012, which affirmed the decision of the delegate of the respondent Minister to refuse protection visas to the applicants.

Background

1. The two applicants before the Court are both citizens of the People’s Republic of China (“China”) (Court Book – “CB” – CB 1, CB 37 and CB 50 to CB 51). They presented as a de facto couple (CB 10). The first named applicant (“the applicant”) arrived in Australia on 16 May 2007 (CB 23). The second named applicant (“the applicant’s partner”) arrived in Australia in January 2008 (CB 38). The applicant arrived as a holder of student visas (CB 23). The applicant applied for a protection visa on 24 September 2012 (CB 10 to CB 35). She set out her claims to protection in a declaration attached to the application form (CB 48 to CB 49). 

2. The applicant’s partner applied at the same time for a protection visa as a member of her family unit and therefore relied upon the applicant’s claims to protection. He made no claims other than as a member of her family unit. 

3. I note that the Tribunal subsequently did say that the applicant put forward to it that he (the applicant’s partner) also feared being persecuted for the same religious beliefs and due to threats from gangsters ([54] at CB 108). That is, in effect, the same concerns as expressed by the applicant.

Claims to Protection

1. The applicant’s claims to protection, as ultimately put to the Tribunal, were that she claimed to fear harm from the following:

   1)The Chinese authorities, because of her membership of and participation in China in, a local Christian church.

   2)Her family’s creditors, or otherwise described as “gangsters”, who, amongst other matters, were said to have kidnapped her brother to enforce the repayment of loans.

   3)The Chinese authorities, because of her unborn child. [The applicant was pregnant at the time of the application for review by the Tribunal.] The applicant claimed that her child would face harm because of her own situation, and her baby’s status as a “black” child.

2. The Tribunal had regard to the applicant’s claims as set out in her initial written statement, the interview with the delegate who first considered the application for protection visas, and at a hearing before the Tribunal which both applicants attended. The only account before the Court of what occurred at that hearing is that set out in the Tribunal’s own decision record ([38] at CB 106 to [53] at CB 108). 

3. The Tribunal did not find the applicant to be a credible witness ([57] at CB 109). The Tribunal said as follows ([57] at CB 109):

   “For reasons set out below I did not find the applicant to be a reliable or credible witness, or someone who had been truthful about her family’s experience in China, her actions in Australia, nor her fears about returning to China.”

4. The Tribunal had a number of different reasons for this finding. First, the Tribunal found the delay of over five years between the applicant arriving in Australia and applying for a protection visa was “not indicative of someone who has a well-founded fear of persecution” ([58] at CB 109).

5. Second, the application for a protection visa was only lodged after the applicant was detained by Australian immigration authorities after she had overstayed her visa by two and a half years ([58] at CB 109). 

6. Third, the Tribunal found some of the applicant’s evidence to be “not credible”. This included the claim that her brother was kidnapped and, separately, her explanation as to why she had not applied for protection earlier ([59] – [61] at CB 109). 

7. Fourth, the Tribunal found she gave “inconsistent and at times vague” evidence about contact with her parents ([60] at CB 109).

8. Fifth, the Tribunal did not accept that the applicant was a Christian who belonged to a Christian church. It found, variously, her claims in this regard to be inconsistent with independent country information before it ([62] at CB 109 to CB 110). Further, that her lack of any effort to locate a local church in Australia, or any other Christian worship, was inconsistent with her claimed Christian faith ([63] – [64] at CB 110). 

9. Sixth, the Tribunal applied independent country information available to it to the applicant’s circumstances, and those regarding her unborn child. It found, however, that there was not a real chance of persecution for the applicant or, indeed, her unborn child on that basis ([65] – [66] at CB 110).

10. Given that it had not accepted that the applicant was a Christian in China, nor maintained contact with the church while in Australia, nor that her family was wanted by debt collectors, or for that matter that she could be sought by the Chinese authorities for any reason, the Tribunal found that there were no substantial reasons for believing that the applicant, nor her child, met the complementary protection criterion set out in s.36(2)(aa) of the Migration Act. The Tribunal also concluded that, given that it was satisfied that neither of the applicants was a person in respect of whom Australia had protection obligations, none of the available elements in s.36(2) were satisfied in the case before it. It therefore affirmed the delegate’s decision ([70] at CB 111).

The Application to the Court

1. The application before the Court seeks the following relief: 

   “1. Relief of Court costs. 

   2. To be remitted to the R.R.T for decision in my favour according to law. 

   3.  To set aside the decision of the R.R.T.”

2. The grounds of the application are stated as follows. 

   “1. Jurisdictional Error. 

   2.  I am not agreed the decision which from the R.R.T. 

   3. An order that the decision of the tribunal or minister be quashed. 

   4. To be remitted to the RRT for decision in my favour according to Law.”

Before the Court

1. When the matter was first before the Court, the applicants appeared in person. They were assisted by an interpreter in the Mandarin language. At that time I explained to the applicants that what the Court was concerned with, and could only be concerned with, was whether the Tribunal had committed jurisdictional error (“a legal mistake”). I noted that the grounds of the application to the Court, as drafted, did not assist their case.

2. At that time, the applicants had indicated their willingness to participate in the Court’s “RRT Legal Advice Scheme”. I urged the applicants to attend and listen very carefully to the lawyer who would be assigned to them. Orders were also made on that occasion to provide the applicants with the opportunity to file an amended application, and any evidence in support of any such application.

3. Despite those orders and the opportunity to obtain legal advice, no amended application has been filed by the applicants. I note that the applicants confirmed today that they had obtained legal advice in this matter. I note from a Certificate placed on the Court’s file that they met with the lawyer on 9 April 2013 and were provided with written advice. 

4. When the matter was called before the Court today, both applicants appeared in person and were again assisted by an interpreter in the Mandarin language. Ms B Rayment appeared for the respondent Minister. 

5. Given the bare unparticularised grounds of the application before the Court, the Minister sought that the Court proceed to an immediate show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). I note in this regard that the applicants were on notice of this possibility, given what was also said to them at the first Court date in this matter.

6. In the circumstances and given that the applicants were on notice, it was appropriate for the Court to proceed in the manner as pressed by the Minister. The question for the Court today, therefore, is whether the application raises an arguable case for the relief sought by the applicants.

Consideration

1. In this regard, I note that, in essence, the applicants seek relief from the Court in the nature of prerogative writs to ultimately return the matter to the Tribunal for reconsideration.

2. To the extent that some of the language used in the application may suggest that the applicants are seeking that the matter be returned to the Tribunal with a direction from the Court as to the outcome, I note the following. In the circumstances of this case, the Court has no power to direct the Tribunal to make a particular decision. I have taken the view, then, that what the applicants really seek is a return to the Tribunal for reconsideration. 

3. The first “ground” of the application to the Court, as I have said, simply states the words “Jurisdictional Error”. These two words, without anything more, do not assist the applicants before the Court because, on its face, I cannot see that the Tribunal’s decision is infected with jurisdictional error. The Tribunal’s findings, including its findings on credibility, were all reasonably open to it on what was before it, and the Tribunal gave cogent reasons for its findings in relation to the applicant’s credibility (Re Minister for Immigration & Multicultural Affairs; Ex parte  Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1). No jurisdictional error is revealed in these circumstances. The Tribunal dealt with all of the claims expressly made and clearly arising, in the circumstances.

4. I should note in this regard that, before the Court today, the applicant had nothing further to say in relation to her application. However, the applicant’s partner said that when he attended at the Tribunal hearing he was not asked any questions. He indicated that he also feared persecution in China because his own family had been persecuted.  However, the applicant’s partner also confirmed that he made no such claim either before the Minister’s delegate or to the Tribunal at any time.

5. At its highest, the applicant’s partner’s claims before the Tribunal can be seen in two parts, both of which, in my view, were dealt with by the Tribunal. First, he applied for a protection visa as a member of the applicant’s family unit. The Tribunal plainly dealt with the applicant’s partner’s application in that regard. 

6. The Tribunal also noted in its decision record that the applicant’s partner, the father of her child, was present during the hearing. However, that he made no claims. That is, he made no claims to a protection visa in his own right. The Tribunal went on to say at [54] (at CB 108):

   “… A claim was made on his behalf insofar as the applicant claimed that she and her boyfriend feared being persecuted for their religious beliefs and due to threats from gangsters…”

7. Further, I note in relation to the applicant’s partner, while he attended the Tribunal hearing, there is nothing before the Court to indicate that he sought to give evidence or pressed that matter before the Tribunal.

8. Therefore, in rejecting the applicant’s claims in total the Tribunal also rejected the claims made by her on behalf of her partner. It was open to the Tribunal to therefore conclude that it was not satisfied that either of the applicants was a person in respect of whom Australia had protection obligations. At [70] (at CB 111), the Tribunal concluded, therefore, that both the applicants did not satisfy the criteria set out in s.36(2)(a) or (aa) of the Act. The Tribunal then went on also to consider the criteria set out in s.36(2)(b) or (c) of the Act dealing with the matter of an application as a member of the family unit.

9. I note also that the applicants have not put before the Court any transcript of the Tribunal hearing. On the only account that is before the Court, that is, the Tribunal’s account, I am satisfied that the issues dispositive of the review were discussed at the hearing (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592; (2006) 81 ALJR 515). In any event, the applicant could have been in no doubt, following the delegate’s decision that her claimed practice of Christianity, the lack of any Christian practice in Australia, the delay in her applying for a protection visa and the fact of the application being made only after she was detained, were all live issues as a result of the delegate’s decision (CB 74 to CB 81).

10. The second “ground” of the application relates to the applicants’ disagreement with the Tribunal decision. Again, that does not assist the applicants before the Court. The Tribunal is not obliged, or required, to make a favourable, agreeable or even a “fair” decision. I say this in the sense of making the “correct”, or what the applicants would say would be the “correct” or “fair”, decision. The Tribunal is required to provide a fair process. However, the invitation to the hearing, both applicants’ attendance at the hearing, the opportunity for the applicant to give evidence, all, in my view, reveal that the Tribunal discharged its procedural fairness obligation in this regard.

11. What are said to be the third and fourth “grounds” of the application are really not assertions of legal error, but a restatement of the relief that the applicants seek.

12. In all, the application to the Court raises no arguable case for the relief sought by the applicants. In the circumstances, therefore, it is appropriate that the application be dismissed pursuant to r.44.12(1)(a) of the Rules.

13. It is appropriate that an order for costs be made in this matter in the usual way. The applicants have not raised any argument against the making of the order. As to the amount, I am satisfied, having regard to the work actually done by the Minister’s solicitors, that the amount sought is a reasonable amount.  I will make the order in that amount.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 27 May 2013