SZSZC v Minister for Immigration

[2014] FCCA 1481

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSZC v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1481

Catchwords:
MIGRATION – Application seeking review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – whether complementary protection criteria applied – no applicable criteria – Application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 91X, 36(2)(aa), 424A

Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant: SZSZC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1410 of 2013

Judgment of: Judge Lloyd-Jones

Hearing date: 2 April 2014

Delivered at: Sydney

Delivered on: 14 July 2014

REPRESENTATION

The Applicant: The Applicant appeared in person with the assistance of an Indonesian interpreter.

Solicitor for the First Respondent: Mr R. Ray of Clayton Utz

The Second  Respondent: The Second Respondent filed a submitting notice of appearance.

ORDERS

1. The name of the First Respondent be amended to read “Minister for Immigration and Border Protection”.

2. The Application filed on 24 June 2013 be dismissed.

3. The Applicant pay the first Respondent’s costs and disbursements of and incidental to the Application.

The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZSZC.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1410 of 2013

SZSZC

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application filed in the Federal Circuit Court on 24 June 2013 under the Judiciary Act 1903 (Cth) and the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review of a decision made on 21 May 2013 by the second respondent, the Refugee Review Tribunal (the “Tribunal”) affirming the decision of the delegate of the First Respondent, the Minister for Immigration and Border Protection (formerly the Minister for Immigration and Citizenship) (the “Minister”), to refuse to grant the applicant a Protection (Class XA) visa.

2. In accordance with the Court Orders made on 16 July 2013 the solicitors for the Minister were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This order was complied with and the volume of material provided is identified as the Court Book (“CB”) and has been marked as Exhibit “A”.  

3. By orders made by the Court on 16 July 2013, the applicant was granted leave to file and serve an amended application or any additional affidavit evidence upon which she wished to rely.  The applicant was also granted leave to file and serve an outline of written submissions fourteen (14) days before the hearing.  The applicant elected not to file an amended application, any affidavit evidence or written submissions.

Background

1. In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the Minister. Where this information is extracted from the Court Book, each item contains a reference (“CB”) for that material. I have not made further attribution as this would make the summary unwieldy.

2. The applicant is a citizen of Indonesia and she is of Chinese ethnicity (CB 225 at [22]).  On 14 November 2011, the applicant applied to the Department of Immigration and Citizenship (the “Department”) for a Protection (Class XA) visa.  On 13 January 2012, the delegate refused to grant the visa (CB 30-39). 

3. On 16 February 2012, the applicant applied to the Tribunal for review of the delegate’s decision (CB 40-45).  On 26 March 2012, the Tribunal affirmed the decision of the delegate (CB 49-56).

4. On 30 April 2012, the applicant commenced judicial review proceedings in the Federal Magistrates Court (as it was then).  On 13 July 2012, Federal Magistrate Jarrett (as he was then), by consent, set aside the Tribunal’s decision and remitted this matter to be heard again as the Tribunal had failed to consider the grounds of complementary protection.

5. On 6 March 2013, the applicant attended a hearing before the Tribunal (CB 217-219).  On 21 May 2013, the Tribunal affirmed the decision not to grant the applicant a Protection visa (CB 220-243).

6. On 24 June 2013, the applicant commenced the current proceedings before this Court.

Tribunal’s Decision

1. The applicant claimed to fear persecution in Indonesia on the basis of her race and religion, as well as her membership of a particular social group.  Her claims are as follows:

   a)She fears persecution because she is ethnic Chinese (CB 225 at [22];

   b)She fears persecution because she is of Catholic faith (CB 225 at [22]);

   c)On 27 July 1996 there was a riot between opposing political supporters near her home.  The applicant contends that people tried to enter her house for the purpose of burning it down because of her Chinese ethnicity (CB 227 at [36]);

   d)Ethnic Chinese have been targeted by local Indonesians over a long period and some of her female relatives in Jakarta were raped by local Indonesians during the 1998 riot when buildings were burnt and shops were looted (CB 226 at [27]; CB 227 at [37]);

   e)There is a reliable rumour that before  17 August 2018, Indonesian Independence Day, there will be no more Chinese people in Indonesia (CB 226 at [27]);

   f)She was often sexually harassed by native Indonesians at work and was also subjected to derogatory remarks about her race.  She noted four specific incidents:

   i)In 2002 she was harmed on a bus returning home from school (CB 227 at [39]);

   ii)In 2002 she was sexually abused in public and no-one assisted her.  When she approached a policeman to report the incident, he too did not assist her but made a racist comment (CB 232 at [89]);

   iii)At work an Indonesian woman commented about Chinse people finding it easier to get jobs and receiving higher salaries (CB 227 at [41]); and

   iv)In 2009 she was sexually harassed by a police officer (CB 227 at [42]);

   g)On 24 December 2000 an unexploded bomb was found at her church.  There were five explosions in churches that day (CB 227 at [38]);

   h)She introduced a mafia boss to her uncle who is a gambler.  The mafia boss has terrorised, harassed and threatened to hurt and kidnap her, as well as her nephew, unless she pays her uncle’s gambling debt of $40,000 (CB 230 at [60] and [70]);

   i)She fears that she will be raped and killed by local Indonesians given the unstable climate (CB 227 at [44]);

   j)She fears her uncle will punish her if he finds out that she has revealed to the Australian government that he is indebted to the mafia and/or that he paid for privileges whilst in gaol (CB 237 at [139]); and

   k)She fears that if she goes back to Indonesia, the authorities will not be able to assist and/or protect her.

2. The Tribunal did not accept any of the claims set out in [10] above, as it did not find the applicant to be a credible witness for the following reasons:

   a)The applicant claimed in a statement lodged with the Tribunal that her family business went bankrupt because of the decline in Indonesia’s economy after the May 1998 riots.  However, at the hearing she stated that her family had to sell all their property in 1998 due to her mother’s gambling problem.  The Tribunal found these versions of the applicant’s evidence inconsistent (CB 238 at [151]);

   b)The Tribunal found the applicant’s decision to return to Indonesia in December 2010 for ten months inconsistent with her general claims for protection (CB 239 at [152]);

   c)The Tribunal found that the applicant’s claims were generally not supported by reliable country or other evidence.  The Tribunal noted that the applicant provided no country information to support her claims about the bomb attacks on churches on Christmas Eve 2000 and provided no country information about incidents reflecting anti-Chinese sentiment since 1998 (CB 239 at [153]);

   d)The Tribunal was not satisfied that the applicant or her family or their property was harmed or threatened, or that her relatives or friends were raped during the May 1998 riots.  The Tribunal made this finding in light of apparent inconsistencies in the applicant’s evidence including her assertion that she came to Australia in May 1998 in order to “avoid the riot”.  The applicant had also acknowledged earlier that given her uncle’s wealth he hired policeman to protect their property (CB 239 at [154]);

   e)The Tribunal noted that the applicant’s claims had changed over time and did not accept her explanations about why this had occurred.  Specific reference was made to her claim involving the gambling bosses, which was not included in her previous application.  The Tribunal did not accept that when the applicant was filling out the application she was unaware that she could write of certain experiences and/or that her friend wrote everything.  The Tribunal found such assertions inconsistent with earlier evidence given at the applicant’s first Tribunal hearing on 12 October 2012.  Further, the Tribunal dismissed the applicant’s claims that she did not know what information she provided in her application, given her generally strong command of English, written and spoken.  The Tribunal also did not accept that the applicant’s agent suggested that “maybe” she could alter her application.  The Tribunal found that if her claim involving the gambling bosses was true, it would have been at the forefront of her mind when she completed the visa application.  Accordingly, the fact that she did not raise this matter until the rehearing suggested that the information was not true and only included to strengthen the claims for protection (CB 240 at [156]-[159]).

3. Accordingly, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason.

4. For the same reasons outlined above, the Tribunal was not satisfied that the applicant met the complementary protection criterion of s.36(2)(aa) of the Migration Act (CB 241 at [266]).

Current Proceedings

1. The application filed 24 June 2013 sought the following orders:

   An order that the decision of the tribunal or Minister be quashed.

   A writ of mandamus directed to the tribunal or Minister, requiring them to determine the applicant’s application according to law.

2. The grounds of the application are as follows:

   1. Refugee Review Tribunal constituted a jurisdictional error in making the decision.

   2. Refugee Review Tribunal failed to provide me with an opportunity to comment upon the particulars of the information in my claim for a protection visa.

   3. Refugee Review Tribunal failed to comply with the compulsory requirements of the Migration Act.

Applicant’s Submissions

1. On 16 July 2013 the applicant was granted leave to file and serve an amended application and any affidavit evidence that she wished to rely upon by 4 February 2014, and an outline of written submissions fourteen (14) days before the hearing.  The applicant did not file any amended application, affidavit evidence or written submissions. 

2. At the hearing held on 2 April 2014, the applicant was assisted by an Indonesian interpreter.  Initially there was some confusion in the mind of the applicant as to what documents she had submitted to what organisation.  It was established that the applicant had not filed any additional documents since the filing of her application.  When asked if the applicant wished to make any oral submissions in support of her application the applicant stated that she had explained everything, presumably meaning to the delegate, and that she had then tried to explain everything to the Tribunal.

3. As there was a complete absence of particularised pleadings and no written or oral submissions, I invited the applicant to make some statements about the grounds of the application.  It was explained to the applicant that the Court Book contained the decisions of the delegate of the Minister and the Tribunal, together with a substantial amount of material submitted by her appointed Migration Agent, Mr Lu of the Sydney Migration Education Centre.   

4. I referred the applicant to Ground 1 of her application.  I noted that this ground was not particularised and I asked the applicant where the jurisdictional error occurred.  The applicant claimed that she submitted documents and witness statements to the Tribunal and she tried to convey and explain everything to the Tribunal, but the Tribunal still did not grant her the visa.

5. It was explained to the applicant that it is not the function of the Court to determine whether the applicant is eligible for a visa.  It was explained that the purpose of the Court hearing was to determine whether the Tribunal’s decision contained any jurisdictional errors.  The applicant was asked once again to identify the jurisdictional errors in the Tribunal’s decision. 

6. The applicant submitted that the Tribunal had asked her about the connection between her own case and her uncle’s case.  She stated that she tried to explain to the Tribunal that she was the one who had introduced the gambling boss to her uncle and that is where the connection between the two lies.  She claimed that the Tribunal Member kept emphasising that there is no relationship between her and her uncle’s cases. 

7. The Court drew the applicant’s attention to Ground 2 of the application. I took the applicant to CB 235, where, pursuant to s.424A of the Migration Act, the Tribunal extended an invitation to the applicant to comment on certain information. The applicant claimed that she was not brave enough to state all the things that had occurred. She claimed that the Tribunal stated because in one instance she mentioned that she was persecuted because of her race and then in the second instance she mentioned that she was persecuted because of her connection with her uncle that she was making up stories in order to get a visa. The applicant claimed that when she was before the Federal Magistrates Court initially she did not mention these things because she could not trust the Australian Government.

8. The Court then referred the applicant to the third ground of the application, where it is argued that the Tribunal failed to comply with the Migration Act. The Court asked the applicant to specifically identify with section of the Migration Act had been breached. In response to the request the applicant stated that she had tried to hand up documents and tried to get witnesses before the Tribunal. The applicant claimed that she did not understand why she had been refused a Protection visa. It was explained to the applicant that the Tribunal’s reasons for her not being granted a Protection visa were set out in the Decision Record. The applicant submitted that there was evidence that has been kept by a certain person and that she was unable to access that evidence anymore. She stated that was why she was unable to give that document to the Tribunal at the second Tribunal hearing.

Minister’s Submissions

1. The Minister submits that there were no particulars provided by the applicant and none of the grounds in the application establish jurisdictional error on the part of the Tribunal.  The Minister submits that Ground 1 is a bare assertion of jurisdictional error.  The applicant failed to provide any details or explanations.  It is submitted that this ground cannot form a proper basis for the relief sought by the applicant.

2. The Minister submits that Ground 2 claims that the Tribunal failed to permit the applicant an opportunity to comment. Ground 2 is unsupported by the extant material. The Tribunal wrote to the applicant on 15 January 2013 pursuant to s.424A of the Migration Act, inviting her to respond to information that the Tribunal considered relevant to her claims (CB 189). The Tribunal received a response from the applicant on 6 February 2013 (CB 191), which it took into account (CB 236 at [130]). The applicant was given a comprehensive opportunity to comment on her claims at her second hearing before the Tribunal. It cannot viably be claimed that the Tribunal failed to provide her an opportunity to comment.

3. The Minister submits that Ground 3 is a bare assertion that the Tribunal failed to comply with the Migration Act. As with Ground 1, it does not form a proper basis for the relief sought by the applicant.

Consideration

1. A review of the Court Book indicates that the original visa application, filed on 14 November 2011 was completed by the applicant herself without assistance.  The relevant section of Form 866B and question 14 provides this information.  The applicant was invited to attend an interview at the Department of Immigration on 13 January 2012 and by letter dated 30 January 2012 the Department indicated that the applicant’s application for a Protection (Class XA) visa had been refused (CB 30-33).  The Department’s Decision Record is attached (CB 34-39).  An application for review was filed on 16 February 2012 (CB 40-43).  That application was acknowledge and an invitation was extended to the applicant to attend a hearing before the Tribunal on 24 February 2012 (CB 46-47).  The decision of the first Tribunal was issued on 26 March 2012 (CB 49-56).

2. An application to the Federal Magistrates Court, for a review of the Tribunal’s decision is not reproduced in the Court Book, however, an order was made by Federal Magistrate Jarrett (as he was then) on 13 July 2012, issuing a writ of certiorari quashing the decision of the Tribunal dated 26 March 2012, together with a writ of mandamus issued to compel the Tribunal to reconsider the matter according to law.  The reasons for those orders are set out in Annexure “A” which contains the following statement:

   The first respondent accepts that the second respondent failed to consider paragraphs 36(2)(aa) of the Migration Act 1958 (Cth) (the Act). Accordingly the first respondent accepts that the second respondent did not consider the applicant’s application for Protection (Class XA) visa against the criteria for that visa prescribed by the Act, in contravention of s.65 of the Act.

   (CB 59)

3. On 21 August 2012 the Tribunal forwarded the applicant a letter concerning the reconsideration of the application for review and on 12 September 2012 issued an invitation to the applicant to appear before a differently constituted Tribunal on 12 October 2012 (CB 62-63).  Along with the response of that invitation there was a notification that the applicant had appointed a representative, Mr Songtao Lu of Sydney Migration Education Centre (CB 68).  Attached to that response letter is a large volume of material prepared by Mr Lu addressing a number of specific issues concerning Chinese Nationals living in Indonesia (CB 69-203).

4. The reconstituted Tribunal in its Decision Record indicated that there was a hearing on 12 October 2012. On 15 January 2013 an invitation was forwarded to the applicant pursuant to s.424A of the Migration Act. A response was received on 6 February 2013 and the consequence of the contents of that document required a further hearing which was scheduled for 6 March 2013.

5. The important issue to note is that in the preparation for the hearing before the reconstituted Tribunal the applicant was assisted by a Registered Migration Agent who provided advice and submissions on behalf of the applicant.

6. Turning to the Application filed in these proceedings on 24 June 2013, it is apparent that the Application was prepared by the applicant without assistance. This explains why the grounds of review do nothing more than claim that the Tribunal’s decision as a whole is made in error and fails to comply with the requirements of the Migration Act. The remaining claim is that the Tribunal failed to provide the applicant with an opportunity to comment on particular items within her claim. This appears to be inconsistent with the contents of the Decision Record which indicates that the applicant attended a hearing on 12 October 2012, during which a considerable amount of information was exchanged.

1. Subsequently on 15 January 2013 the invitation was extended to the applicant under the provisions of s.424A of the Migration Act to comment on or respond to a series of questions that arose as a consequence of the Tribunal hearing. When the applicant’s response was received on 6 February 2013, the Tribunal considered that it was appropriate for the applicant to attend a further hearing on 6 March 2013 in order to clarify issues that arose from the contents of the s.424A request. In the absence of particulars it is not apparent to the Court what the applicant is suggesting that she was denied in respect of the opportunity to comment on issues within her claim. Despite asking the applicant this specific question, no response was received to indicate to the Court the basis of this claim.

2. In respect of the applicant‘s claim for protection, the Tribunal made the following findings:

   150.  The Tribunal does not accept the applicant’s claims for protection because it found her not to be a credible witness for the following reasons.

   (CB 238)

3. In the following twelve paragraphs of the Decision Record ([151]-[162]) the Tribunal Member addresses each of the issues raised by the applicant in support of her claim for protection.  At [163]-[165] the Tribunal states:

   163. Because the Tribunal finds that the applicant is not a credible witness, it does not accept any of her claims, as summarised above.  It is not satisfied that she fears any harm for the reasons she claims, singly or cumulatively, if she returns to Indonesia. 

   164.  For those reasons, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm if she returns to Indonesia.

   165.  It is therefore not satisfied that she has a well-founded fear of persecution for a Convention reason if she returns to Indonesia.  It is therefore not satisfied that the applicant meets the refugee criterion (s.36(2)(a)).

   (CB 241)

4. A tribunal’s adverse credibility finding and consequent rejection of an applicant’s claim is a matter for the tribunal par excellence: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J at [67]. His Honour stated

   67. …a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence…

5. The Tribunal’s findings in this respect were open to it on rational grounds on the material before it and disclose no error in its treatment of the applicant’s credibility: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547. The contents of the Court Book and the Tribunal’s Decision Record were the only evidence before the Court in relation to the conduct of the hearing. These indicate the Tribunal’s concerns about aspects of the applicant’s evidence which were raised with the applicant during the hearing, in a subsequent invitation to comment under the provisions of s.424A of the Migration Act and at a further hearing to resolve the contents contained in that invited response.

6. I now turn to the issue of the complementary protection criterion that arises under the provision of s.36(2)(aa). Since the Migration Amendment (Complementary Protection) Act 2011 (Cth) amended the Migration Act in March 2012, the Tribunal has been required to consider whether Australia owes applicants for Protection visas complementary protection. The applicant and those who are assisting her with her application are unlikely to be aware of the existence of this obligation in the Migration Act, but it was known to the Tribunal and the Tribunal has addressed this issue. A convenient summary of these new provisions are contained in the then Bill’s Second Reading Speech on 24 February 2011. The new provisions establish a criteria to grant a Protection visa in circumstances that engage Australia’s non-refoulement obligations under the Human Rights treaties and other refugee conventions and is summarised as follows:

   Australia will not return a person to a place where there is a real risk that a person will suffer particular types of significant harm contained in the relevant human rights treaties, namely:

   ·   the arbitrarily deprivation of life;

   ·   having the death penalty carried out;

   ·   being subjected to torture;

   ·   being subjected to cruel or inhuman treatment or punishment; or

   ·   being subjected to degrading treatment or punishment.

   (Hansard, 24 February 2011)

7. The claims advanced by the applicant to seek protection from persecution as described in the Refugees Convention were rejected by the Tribunal. The claims were rejected primarily on the basis of credibility and on the evidence before it that there is not a real chance the applicant will face Convention-based persecution. No claims in respect of the Tribunal’s addressing of the complementary protection criteria were raised by the applicant.  This is understandable in the case of an unrepresented litigant unfamiliar with the language and the legal administration of this country and having very little opportunity to avail herself of this knowledge or assistance.

8. The Tribunal addresses the complementary protection criteria in the context of this application at [166], [168]-[169] where it states:

   166.  For the same reasons, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s being removed from Australia to Indonesia, there is a real risk that she will suffer significant harm.  It is therefore not satisfied that the applicant meets the complementary protection criterion (s.36(2)(aa)).

   …

   168.  Having concluded that the applicant does not meet the refugee criterion the alternative criterion in s.36(2)(aa).  The Tribunal is not satisfied that the applicant is a person in respect of whim Australia has protection obligations under s.36(2)(aa).

   169. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfied s.36(2)(a) or (aa) and who holds a protection visa.  Accordingly. The applicant does not satisfy the criterion in s.36(2) for a protection visa. 

   (CB 241)  

9. The Court notes that the applicant participated in the NSW RRT Legal Advice Scheme, and, after attending a meeting with the allocated adviser, she received written advice in respect to the further management of her proceedings.  This conference took place without the assistance of an interpreter service as the applicant is fluent in English. 

Conclusion

1. For the reasons stated above, the application cannot succeed.  I accept the Minister’s submissions accurately address the three pleaded grounds in the application.  Further, on a fair reading of the Decision Record, no error of law is apparent.

2. The application filed on 24 June 2013 should be dismissed with costs awarded to the Minister. 

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones

Associate: 

Date: 14 July 2014