SZTVF v Minister for Immigration

[2016] FCCA 2386

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTVF v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2386

Catchwords:
MIGRATION – Application under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) to dismiss an application for judicial review of a decision of the Refugee Review Tribunal (Tribunal) – whether applicant raised an arguable case for the relief she seeks – no arguable case for relief raised – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a)

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 424AA, 424A

Cases cited:

SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235

Applicant: SZTVF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1723 of 2015

Judgment of: Judge Manousaridis

Hearing date: 2 September 2016

Delivered at: Sydney

Delivered on: 2 September 2016

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents:

Ms G Doyle of

Sparke Helmore Lawyers

ORDERS

1. Pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $3,416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1723 of 2015

SZTVF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The first respondent (Minister) seeks an order under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) that the application be dismissed because that application does not raise an arguable case for the relief it seeks. The application in question seeks judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the Minister not to grant the applicant a protection (class XA) visa (protection visa).

2. In her application for a protection visa, the applicant claimed she experienced harm from government authorities when her parents’ properties were demolished by the government in 1993.  The applicant claimed her sister was arrested and detained for one week because they protested against the demolition of their parents’ properties.  After the applicant’s sister was detained, the applicant went into hiding until her sister was released. That release was conditional on the applicant’s parents signing a deed permitting the development to proceed. 

3. The applicant further claimed that “in order to get the compensation for the land expropriation” the applicant’s family arranged for the applicant to be married to the son of a businessman with “strong connection” to thugs, the police, and government officials. The applicant’s husband sexually abused her, bankrupted her business, incited thugs to threaten and intimidate her, forced her to have “more child”, and tortured her physically and mentally.  The applicant claimed her husband also rendered her uncle’s hardware business “closely to collapse” and attempted to change the applicant’s religious beliefs, but the applicant did not do so. 

4. The applicant further claimed she borrowed RMB450,000 in 1999 to operate her business and obtain a passport to come to Australia, and that, if she is returned to China, those creditors will be “after” her because she has not repaid a substantial amount of the money she borrowed which, together with interest, is beyond her capacity to pay.  The applicant claimed she fears for her safety because she has nowhere in China to hide from the creditors, and that they can force her parents to tell them the applicant’s location. 

5. The Tribunal first noted that the applicant arrived in Australia in July 1999 using a false passport in a false name and applied for a protection visa on 13 August 1999. In that protection visa application, the applicant claimed she belonged to an underground church in China known as “shouters”, set up her own gathering of the church, and an underground printing factory to print a Christian magazine. The applicant claimed this was discovered and she was imprisoned for one year, and put on a “black list” in China because of her religious activities, and that was the reason for her leaving China. Litigation surrounding that protection visa application ultimately concluded in the Full Federal Court when it dismissed the applicant’s appeal from a decision of this Court dismissing an application for judicial review of the Tribunal’s decision not to grant the applicant a protection visa.  That appeal was dismissed by the Full Federal Court on 13 August 2008. 

6. The Tribunal next referred to the applicant’s applying for another protection visa on 14 September 2013, which was refused by a delegate of the Minister on 13 June 2014. The Tribunal referred to the applicant’s claims and the evidence given by the applicant before the delegate and before it.  I do not propose to set out the evidence the applicant gave before the delegate or the Tribunal. 

7. The Tribunal, before it considered the applicant’s claims and evidence, referred to the current protection visa application and to the decision of the Full Federal Court in SZGIZ v Minister for Immigration and Citizenship.[1] Applying the Full Court’s reasoning in that decision, the Tribunal found it did not have the power to consider the criterion set out in s.36(2)(a) of the Migration Act 1958 (Act). The Tribunal therefore only considered the application for review against the complementary protection criterion specified in s.36(2)(aa) of the Act.

   [1] (2013) 212 FCR 235

8. The Tribunal did not find the applicant to be a credible witness, and it so found because the applicant’s evidence at the hearing was often evasive when addressing omissions, inconsistent and the “implausibility” in her story. 

   a)First, the Tribunal found the applicant’s evidence that her family’s properties were demolished in 1993 in China to be confused.  It so found because the applicant spoke of bulldozers destroying the family home while the applicant and her family remained in it.  The applicant stated in her protection visa application that her family wanted compensation, but at the hearing the applicant stated her family wanted to recover their properties as their neighbours had. When asked why she did not mention that her family’s properties had been demolished in her previous protection visa application, the applicant said she did not think of them because she was told it would not help her get a protection visa.  The Tribunal did not accept the applicant received such advice and did not accept the applicant’s family home or properties were demolished by the authorities in China.

   b)Second, the Tribunal found the applicant’s evidence regarding her husband lacking in detail. The Tribunal so found because the applicant gave a hesitant account of how the families knew each other.  She gave no explanation why her husband wanted to marry her when he did not know her before their marriage. And she gave inconsistent evidence at the Tribunal hearing about her changing her place of residence in China because of her husband.  The Tribunal found the changing nature of the applicant’s evidence regarding the possibility of the applicant divorcing her husband undermined her claims to have feared him.  The Tribunal also found the applicant’s evidence about her husband bankrupting businesses lacking in credibility, and, in particular, because of the applicant’s vague and implausible evidence about how her husband bankrupted the businesses.  And the Tribunal also found that the applicant’s failing to mention the claims regarding her husband in her previous protection visa application difficult to reconcile with the applicant’s claims he abused her.  The Tribunal therefore did not accept the applicant was physically or emotionally abused by her husband in China, or that he tried to bankrupt the applicant or the applicant’s relatives’ businesses.

   c)Third, the Tribunal found the applicant’s evidence regarding her claim that a loan shark lent her money to come to Australia and her claim that she will be harmed on return to China lacking in detail, plausibility and coherence. The Tribunal referred to the applicant’s evidence that the money was only given on condition her uncle was guarantor for the loan.  The applicant, however, was unable to explain why her uncle was not harmed by the loan shark.  The Tribunal found it implausible that the loan shark would insist the uncle be guarantor for the loan before lending the money to the applicant, but then not take any action to enforce the repayment from the uncle simply because the uncle denied responsibility.  Even if this were the situation, the lack of action against the uncle is inconsistent, so the Tribunal found, with the applicant’s claimed fear of the loan shark and the applicant’s evidence the loan shark had threatened and harassed the applicant’s aged parents.  The Tribunal also found that the applicant’s evidence that the loan shark has been seriously harassing the applicant’s parents for repayment of the loan for more than 10 years to be vague and implausible.  Further, the applicant was unable, so the Tribunal found, to provide any details about the loan shark; and she did not mention her claimed fear of harm of any loan shark in her previous protection visa application. The Tribunal, therefore, did not accept the applicant borrowed money from a loan shark in China, who may, on the applicant’s return to China, harm her for not repaying the money; and that even if the claim were accepted, the Tribunal was not satisfied there is a real chance the loan shark would harm the applicant on her return to China, because the money was borrowed 16 years ago, and the loan shark has never threatened or contacted the applicant or harmed her uncle in all that time. 

9. Finally, the Tribunal referred to the applicant’s acknowledging that none of the information about the claims she made in her previous protection visa application was true, with the exception of her being a Christian and to the applicant’s not claiming to fear harm by reason of her being a Christian in her kind of protection visa application.  In any event, the Tribunal referred to country information and to the applicant’s stating her church in China is now registered, and concluded, based on the evidence, that it was not satisfied the applicant has a subjective fear of harm in China as a Christian, or that there is a real chance or risk the applicant will face harm in China as a Christian. 

10. For these reasons, the Tribunal was not satisfied there is a real risk the applicant will be subjected to significant harm if returned to China, or that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.

11. I then turn to the grounds of review stated in the application, of which there are two. When I invited the applicant, who is not legally represented, to make submissions, the applicant, perhaps understandably, did not refer to the grounds stated in the application.  She said to me that her mind was in chaos, that she has been in Australia for 17 years, and she had left her child behind when her child was four years old, and she did that because she had no other way.  She said other matters as well, but the central theme of what she said to me was that she was scared of going back to China, or that she just simply could not go back to China because she feared doing so. 

12. As I explained to the applicant, the jurisdiction of this Court is limited to determining, on the grounds that are raised, whether the Tribunal has undertaken its review of the applicant’s case according to law. I informed the applicant that it is not for this Court to determine whether the applicant has a valid claim for a protection visa, or whether the applicant’s claims as advanced before the Tribunal were true.  For those reasons, the matters the applicant submitted to me do not disclose an arguable case of any jurisdictional error. What the applicant submitted merely repeated grounds she advanced before the Tribunal on which she claimed to fear harm if she were returned to China. 

13. I then turn to the two grounds contained in the application.  The first ground is:

    The Tribunal erred in arrive [sic] at a conclusion without supported evidence.

14. In response to my invitation to the applicant as to whether she wished to say anything about that ground, the applicant said she does not know the law, and that she just cannot go back to China. 

15. The ground does not state any arguable case for relief.  It does not identify the conclusions or findings the applicant claims the Tribunal arrived at without reference to supporting evidence.  In any event, it is beyond argument that the Tribunal did, in fact, refer to all of the applicant’s claims, and the evidence that appears to have been before it, and the evidence that the applicant gave at the hearing before it, and that it made findings that were reasonably open to it to make, for the reasons it gave. 

16. The second ground of review is:

    The Tribunal failed in compliance with mandatory procedures which are set out in s.424AA.

17. When this ground was interpreted to the applicant, understandably, the applicant said she really did not understand it. 

18. The ground does not state any arguable case for the relief it seeks. It does not identify the information, particulars of which it is claimed the Tribunal was obliged, but failed, to give to the applicant. There is nothing apparent on the material before me that indicates the Tribunal failed to comply with s.424A of the Act, including section s.424AA.

19. For these reasons, I am of the opinion that the application discloses no arguable case for the relief it seeks, and I propose, therefore, to dismiss the application. 

20. The Minister also seeks costs set in the amount of $3,606. The applicant opposes the making of the order on the ground that she has no money to pay it.  As I explained to the applicant, that is not a reason for the Court to not make an order for costs.  I cannot imagine, however, that the Minister would be utilising resources to enforce a costs order if the applicant does not have the means to pay it.  As I said to the applicant, however, an outstanding costs order may have consequences if she leaves Australia and seeks to re-enter Australia. 

21. The amount of costs the Minister seeks is costs under the current scale.  At the time the application for judicial review was filed, the scale amount was $3,416.  In the exercise of my discretion, I propose that the appropriate amount that should be set for the Minister’s costs is the scale costs as at the time of application to this Court. I therefore propose to order that the costs be set in the amount of $3,416.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 12 September 2016