SZTDS v Minister for Immigration

[2013] FCCA 2007

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTDS v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2007

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)
Migration Act 1958 (Cth), s.424A

Applicant: SZTDS

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1792 of 2013

Judgment of: Judge Driver

Hearing date: 27 November 2013

Delivered at: Sydney

Delivered on: 27 November 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms H Dejean

Australian Government Solicitor

INTERLOCUTORY ORDERS

1. The name of the first respondent be amended to “Minister for Immigration and Border Protection”.

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 in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1792 of 2013

SZTDS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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 28 June 2013.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from China and had made claims of domestic violence.  She had been married three times and claimed to have endured serious domestic violence at the hands of her third husband before leaving China.  She has an adult son and mother who remain in China.

2. The applicant applied for the protection visa on 7 March 2012.  The Minister’s delegate refused that application on 11 July 2012 and the applicant sought review before the Tribunal.  The Tribunal was unable to make a favourable decision on the papers and invited the applicant to attend a hearing on 18 June 2013.  The applicant was represented by an agent, Mr Songtao Lu, before the Tribunal but he declined to attend the hearing.  The applicant attended and gave evidence and presented arguments.

3. The Tribunal was concerned at the hearing about the credibility of the applicant’s claims of past harm.  The Tribunal warned the applicant that it found her evidence changeable and contradictory.  The Tribunal was also concerned that the applicant delayed leaving China after she was granted a passport in August 2011.  It appears that the applicant spent some time in Australia as well before applying for a protection visa, although that time appears to have been relatively short.

4. The Tribunal questioned the applicant about her financial circumstances and she provided evidence of her employment in Sydney and in Queensland.  She also gave evidence about her current domestic relationship in Australia.  The Tribunal questioned the applicant about her failure to divorce her third husband in China.  The Tribunal also discussed with the applicant the availability of support in China for victims of domestic violence. 

5. In its findings and reasons, the Tribunal found that the applicant had provided contradictory, changing and sometimes vague evidence during the Tribunal hearing.  The Tribunal formed the view that the applicant was withholding basic information from it.  The Tribunal was not satisfied that the applicant was a victim of domestic violence at the hands of her third husband or that she had fled China for that reason.  The Tribunal found that the applicant had fabricated evidence in her efforts to further her claims for protection in Australia.  Having rejected the applicant’s factual claims, it was unnecessary for the Tribunal to consider whether the applicant’s claims had any nexus with the Refugees Convention.

6. The Tribunal found that the applicant is not a person in respect of whom Australia has protection obligations under the Refugees Convention.  The Tribunal also considered whether the applicant qualified for complementary protection.  The Tribunal found that, because it disbelieved the applicant’s claims of past harm, there was no factual basis for that claim.  The Tribunal also found that the applicant is a capable and resourceful woman and that there was no impediment to her returning to China.

7. These proceedings began with a show cause application filed on 1 August 2013.  The applicant now relies upon an amended application filed on 25 September 2013.  There are four grounds in that amended application:

   1. The Tribunal member failed to ask appropriate questions.

   2. The Tribunal member applied the wrong test.

   3. The Tribunal member made unreasonable decision.

   4. For example, I told the Tribunal member I had lived with my friend but that my husband had pursued me and harassed my friend, and I had been forced to return home.  I could not remember when this occurred because I was terribly tortured my husband for long, long period.  Things like this happened frequently.  I just want to tell the truth about my painful experience.  I am not convinced that my bad memory leads to an incredible witness.

8. The applicant also relies upon an affidavit filed with her original application which I received as a submission.  I received as evidence the book of relevant documents filed on 21 August 2013. 

9. In the absence of particulars, grounds 1 and 2 in the amended application are meaningless.  I invited the applicant in her oral submissions to provide particulars.  She simply asserted that everything she said to the Tribunal was true.  The fourth ground may be an attempt to provide particulars for the assertion that the Tribunal’s decision was unreasonable.  I take this to be an assertion by the applicant that her claims of past harm should have been accepted.  It is obvious, however, that this is not a case where only one outcome was open on the evidence.  The Tribunal was entitled to test the applicant’s claims of past harm and was entitled on the evidence before it to reject those claims.

10. In her affidavit, the applicant also asserts a breach of s.424A of the Migration Act 1958 (Cth). There is no substance to that assertion. The Tribunal decision turned upon the applicant’s own evidence and country information, neither of which required disclosure pursuant to that section.

11. I conclude that the applicant has failed to demonstrate an arguable case of jurisdictional error by the Tribunal. 

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

13. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant continued to assert error in the Tribunal decision and, by implication, error in my decision.  She did not make submissions bearing specifically on costs.

14. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

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

Associate: 

Date: 3 December 2013