SZSSF v Minister for Immigration

[2013] FCCA 947

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSSF v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 947

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:  

Federal Circuit Court Rules 2001 (Cth)

Applicant: SZSSF

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 625 of 2013

Judgment of: Judge Driver

Hearing date: 26 July 2013

Delivered at: Sydney

Delivered on: 26 July 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr J Pinder
Minter Ellison

INTERLOCUTORY ORDERS

1. The name of the first respondent be amended to “Minister for Immigration, Multicultural Affairs and Citizenship”.

2. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 625 of 2013

SZSSF

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (Tribunal).  The decision was made on 27 February 2013.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is an illiterate farmer from Fuqing City in Fujian Province, China.  She applied to the Minister’s Department for a protection visa on 9 January 2012.

2. The delegate refused that application on 24 July 2012 and the applicant sought review before the Tribunal.  The Tribunal was unable to make a favourable decision on the application on the papers and invited the applicant to a hearing.  The applicant had requested a Fuqing interpreter and that necessitated some delay.  Two hearings were conducted on 4 January and 18 February 2013.

3. The Tribunal records at [5] of its reasons[1] that both hearings were conducted with the assistance of a Fuqing interpreter.  The first hearing was conducted by video link and the second was face-to-face in Sydney.  The applicant was assisted by a registered migration agent.  The agent did not attend either hearing. 

   [1] court book (CB) 136

4. The applicant appears to have claimed persecution both on the basis of her Catholic religion and also her relationship with her husband.  The Tribunal accepted that the applicant had been a practising Catholic both in China and in Australia.  She had regularly attended church in Sydney and the Tribunal found that the applicant had been a practising Catholic since at least August 1997.  However, the Tribunal did not accept that the applicant had a well-founded fear of being persecuted by reason of her faith.

5. The Tribunal took into account the delay of approximately five years in seeking protection since the applicant arrived in Australia on 18 March 2007.  The Tribunal also took into account the applicant’s evidence in which she referred to economic difficulties.  The applicant claimed that her husband had been harmed by the Chinese police.  However, given inconsistencies in the applicant’s evidence and the rejection of photographic evidence which the Tribunal found had been contrived, the Tribunal was not satisfied that the alleged incident involving the applicant’s husband in fact occurred.

6. The Tribunal had regard to country information concerning the treatment of Catholics in China.  Although not accepting that the applicant feared persecution in China, the Tribunal nevertheless considered whether there was a real risk that she might suffer persecution by reason of her religion.  The Tribunal, having regard to the country information, concluded that she would not. 

7. The Tribunal also considered the complementary protection criterion but found that there was no reason to apprehend that the applicant might suffer significant harm in China if she returned there.

8. These proceedings began with a show cause application filed on 27 March 2013.  The applicant continues to rely upon that application.  I had given the applicant the opportunity, in orders I made on 23 April 2013, to file and serve an amended application but she has not taken up that opportunity.  The application asserts that the Tribunal’s decision is contradictory.  It also asserts that the Tribunal was wrong to assess the applicant’s family’s risk against her.  The application is supported by a short affidavit, which I received as evidence. 

9. I also have before me as evidence the court book filed on 1 May 2013.

10. I asked the applicant what she said was wrong with the Tribunal’s decision or the process it followed.  The applicant is concerned that the Tribunal did not believe her claims concerning her husband.  That goes to the merits of the Tribunal decision which are beyond the scope of this proceeding.  The applicant also asserted that one hearing she attended was conducted with a Mandarin interpreter rather than a Fuqing interpreter.  I reject that contention to the extent that it is directed to the process followed by the Tribunal.  I accept from the Tribunal’s reasons that both its hearings were conducted with a Fuqing interpreter. 

11. The applicant has failed to advance any arguable claim of jurisdictional error by the Tribunal.  The applicant said that because of illiteracy she is not able to represent herself properly.  As I told her, I have taken into account the disadvantage that she faces in these proceedings.  I have, myself, considered whether any arguable case of jurisdictional error might be advanced.  I can see none.

12. I will order that the application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

13. In consequence of the dismissal of the application the Minister seeks an order for costs in accordance with the Federal Circuit Court scale.  The applicant claimed impecuniosity but as has been repeatedly stated that is not a reason for the court to refrain from making a costs order.  Having regard to the time when the application was filed and the amount of work undertaken on behalf of the Minister, I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  30 July 2013