SZSLV v Minister for Immigration, Multicultural Affairs and Citizenship
[2013] FCA 850
•16 August 2013
FEDERAL COURT OF AUSTRALIA
SZSLV v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 850
Citation: SZSLV v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 850 Appeal from: SZSLV & Anor v Minister for Immigration & Anor [2013] FCCA 367 Parties: SZSLV and SZSLW v MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 915 of 2013 Judge: JACOBSON J Date of judgment: 16 August 2013 Catchwords: MIGRATION – application for leave to appeal from Federal Circuit Court – Refugee Review Tribunal – no reviewable error in reasons of Court below – application dismissed with costs Legislation: Federal Circuit Court Rules 2001 (Cth)
Federal Court of Australia Act 1976 (Cth)
Migration Act 1958 (Cth)Date of hearing: 16 August 2013 Date of last submissions: 16 August 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 18 Counsel for the First Applicant: The First Applicant appeared in person Counsel for the Second Applicant: The Second Applicant did not appear Solicitor for the First Respondent: Mr White of Sparke Helmore Lawyers Counsel for the Second Respondent: Filed a Submitting Notice on 29 May 2013
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 915 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZSLV
First ApplicantSZSLW
Second Applicant
AND: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
JACOBSON J
DATE OF ORDER:
16 AUGUST 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The name of the first respondent in the application for leave to appeal filed 24 May 2013 be amended from “Minister for Immigration and Citizenship” to “Minister for Immigration, Multicultural Affairs and Citizenship”.
2.The application be dismissed.
3.The applicants pay the first respondent’s costs of the application.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 915 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZSLV
First ApplicantSZSLW
Second Applicant
AND: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
JACOBSON J
DATE:
16 AUGUST 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
This is an application for leave to appeal from orders made by Federal Circuit Court Judge Nicholls on 13 May 2013. His Honour dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) dated 7 December 2012. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicants’ Protection (Class XA) visas.
Judge Nicholls’ order was made pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). That rule makes it clear that his Honour’s order was interlocutory. Accordingly, leave to appeal is required under s 24(1A) of the Federal Court of Australia Act1976 (Cth).
THE APPLICANTS’ CLAIMS
The application is filed on behalf of the female applicant and her partner. Her partner made no separate claim for protection but relied on membership of the same family unit as the applicant. The applicants’ claims are recorded at [38]ff of the decision of the Tribunal.
The claims were accurately summarised by the judge at [5] of his reasons for judgment. In summary, the applicant claimed to have a well-founded fear of persecution on the ground of religion as well as certain other grounds. In particular, she claimed to be a member of a family of religious believers who had participated in China in a local branch of the Christian church.
She also claimed that the government targeted the church. In addition, she claimed that her family’s creditors, who were described as “gangsters”, were said to have kidnapped her brother to enforce repayment of certain loans. In addition, the applicant, who was eight weeks pregnant at the time of the hearing before the Tribunal, claimed that her unborn child would face persecution in China if she were to return there, because the child would be seen as having been born out of wedlock.
The Tribunal did not find the applicant to be a reliable or credible witness. It did not find that she had been truthful about her family’s experience in China or her actions in Australia and her fears about returning to China.
It gave a number of reasons for this, commencing at [58] of its reasons. The Tribunal’s reasons are accurately summarised by his Honour at [8]ff of his reasons for judgment. The Tribunal did not accept that the applicant was a Christian who belonged to a local church. The Tribunal dealt with this claim at [62] to [64] of its reasons.
It relied on country information in making that finding. It went on to say that because it did not accept that the applicant was Christian, it also did not accept that there was a real chance that she or her partner would suffer persecution by reason of religion, either now or in the reasonably foreseeable future.
The Tribunal also dealt with the claim in relation to the unborn child. It relied on country information in rejecting the claim that the child would not be subject to serious harm amounting to persecution if the child were to live in China.
The Tribunal also dealt with the question of complementary protection under s 36(2)(aa) of the Migration Act 1958 (Cth). The Tribunal found that since it did not accept the applicant’s primary claims, she did not meet the complementary protection criterion set out in that section.
THE DECISION OF THE FEDERAL CIRCUIT COURT
The Federal Circuit Court judge was of the view that the Tribunal’s findings, including its findings on credibility, were all reasonably open to it and that the Tribunal had given cogent reasons for its findings.
His Honour considered that the Tribunal had dealt with all of the applicant’s claims as well as those made by the applicant’s partner as a member of the family unit. His Honour also found that the claims in relation to the unborn child had been addressed. His Honour therefore concluded in summary at [34] that the application raised no arguable case for relief and he dismissed the application summarily pursuant to the rule mentioned above.
LEAVE TO APPEAL
The application for leave to appeal states no arguable ground. The applicant merely states:
I have been mistakenly, file wrong application form.
The draft notice of appeal also states no arguable ground. The draft notice states the ground of appeal as:
The court made a wrong judgment on my credibility.
The applicant appears this morning without legal representation. She was assisted by a Mandarin interpreter. She did not file any written submissions but I asked her whether she wished to say anything in support of the application. She did not do so.
It is well-established that for leave to appeal to be granted, an applicant must demonstrate that the decision below is attended by sufficient doubt to warrant a grant of leave and that substantial injustice would result if leave were refused, supposing the decision to be wrong.
For the reasons set out above, I can see no doubt in the correctness of the decision of the Federal Circuit Court judge. The substantial injustice ground does not arise.
I must therefore refuse leave to appeal, and the order I will make is that the application for leave to appeal filed on 24 May 2013 be dismissed. I will also order that the applicants pay the first respondent’s costs of the application.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate:
Dated: 16 August 2013
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