SZTXF v Minister for Immigration & Border Protection
[2014] FCCA 1187
•30 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTXF & ANOR v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2014] FCCA 1187 |
| Catchwords: PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed. |
| Legislation: Judiciary Act 1903 (Cth) s.39B Migration Act 1958 (Cth) s.36 Federal Circuit Court Rules 2001 (Cth) r.44.12, 44.13 |
| Cases Cited: Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 |
| First Applicant: | SZTXF |
| Second Applicant: | SZTXG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 405 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 30 May 2014 |
| Date of Last Submission: | 30 May 2014 |
| Delivered at: | Sydney |
| Delivered on: | 30 May 2014 |
REPRESENTATION
| The first applicant appeared in person with the assistance of an interpreter |
| Solicitors for the Respondents: | Mr Mark Wiese (Clayton Utz) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 405 of 2014
| SZTXF |
First Applicant
| SZTXG |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”), the applicants seek judicial review of a decision of the Refugee Review Tribunal dated 22 January 2014 and handed down on 23 January 2014 (“the RRT”).
The second applicant is the daughter of the first applicant and her application for a visa is dependent on the outcome of the first applicant (“the Applicant”). The second applicant has not made any application for a visa in her own right.
The first respondent seeks an order pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), that the proceeding before this Court, commenced by way of application on 21 February 2014, be dismissed on the basis that the Applicant has not raised an arguable case for the relief claimed.
Rule 44.12 of the Rules provides as follows:
“(1) At a hearing of an application for an order to show cause, the Court may:
(a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or
(b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or
(c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.
(2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”
Relevantly, r.44.13 provides:
“(1) At a hearing of an application for an order to show cause, the Applicant is confined to the relief sought and the grounds mentioned in the application.”
The background to this matter and the Applicant’s claims are summarised in the written submissions of the first respondent, as follows:
“Background
5. The Applicant is a citizen of the People's Republic of China. She arrived in Australia on a student visa in 2007. The second Applicant is the Applicant's daughter, who was born in Australia on 2 March 2013.
6. On 18 February 2013, the Applicant applied for a protection visa. That application was refused by a delegate of the Minister (Delegate) on 19 August 2013.
7. On 11 September 2013, the Applicant applied to the Tribunal for review of the Delegate's decision. The Tribunal refused the application and affirmed the Delegate's decision on 22 January 2014.
Applicant's claims
8. The Applicant claims that if she were to return to her home in China, she would be forced to marry the son of the head of the village (village head) and that gangsters associated with him might kidnap her daughter. In particular the Applicant claims that:
(a) her parents agreed to the marriage proposal in 2011 after the village head paid them 100,000RMB. The Applicant however, never agreed to that proposal;
(b) the family of the village head has a "gangster group background" and the police refused to intervene when he beat the Applicant and her family;
(c) she has lived in Australia since August 2007. When she briefly returned to China in January 2011, she was forced to participate in an engagement ceremony with the son of the village head. The Applicant claims that her fiancée attempted to rape her;
(d) she returned to Australia in February 2011 but visited China in January 2012 because she was concerned that her fiancée would "take some bad actions against her family";
(e) she called off the engagement and returned a portion of the money her parents had been given to secure the engagement before returning to Australia in February 2012. She fell pregnant (to a different partner) in May or June of 2012.”
Having perused the RRT’s decision record, I am satisfied that the first respondent’s summary of the RRT’s findings are accurately expressed in their written submissions as follows:
“Tribunal's findings
9. The Tribunal assessed the Applicant's evidence as a whole and did not find her to be a credible witness. Specifically, the Tribunal noted the following:
(a) inconsistencies between the Applicant's written and oral evidence about her relationship with her parents and the continued harassment they suffered from the village head's family;[1]
(b) a lack of detail and credibility in relation to the Applicant's core claims. The Tribunal considered these claims to be improbable;[2] and
(c) the Applicant returned to China twice after arriving in Australia in 2007 and only applied for a protection visa in February 2013. The Tribunal considered that these matters indicated that the Applicant did not have a genuine fear of harm upon returning to China.[3]
10. The Tribunal concluded that the Applicant was not a person in respect of whom Australia has protection obligations under the Refugees Convention under s. 36(2)(a) of the Migration Act 1958 (Cth) (Act). The Tribunal next considered whether the Applicant met the criterion under s. 36(2)(aa) of the Act. Having rejected the Applicant's claims that she was in any way threatened or harmed, it was not satisfied that there was a real risk that the Applicant or her daughter would suffer significant harm as a consequence of the Applicant being removed from Australia to China.[4]
11. The Tribunal affirmed the Delegate's decision to refuse to grant the Applicant a protection visa.[5]
[1] Decision Record at [46]-[48].
[2] Decision Record at [43] and [46].
[3] Decision Record at [45].
[4] Decision Record at [51].
[5] Decision Record at [55].
The Applicant was unrepresented before the Court this morning, although had the assistance of a Mandarin interpreter.
On 19 May 2014, the Applicant attended a directions hearing before me. I explained to the Applicant that this Court has no power to interfere with the decision of the RRT, unless the Court is satisfied that the RRT’s decision is affected by a mistake going to the jurisdiction of the RRT. I also explained to the Applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court.
I also explained to the Applicant that in circumstances where the grounds of the application did not raise an arguable case for the relief claimed, the application may be dismissed pursuant to the rules of this Court.
At the directions hearing, the Applicant was provided with a copy of the applicable costs schedule of the Court and I explained to the Applicant the consequences that would flow to her if a costs order was made against her. Namely, that whilst any costs order remains unpaid, it becomes a debt to the Commonwealth of Australia. As such, the Applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected.
The Applicant confirmed that she wished to continue with her application for judicial review of the RRT’s decision. The Applicant was appointed the litigation guardian of the second applicant. The Applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, by 26 May 2014. The Applicant was also directed to file and serve written submissions in support of the grounds of her application by 26 May 2014.
At the directions hearing, the Applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in her own language.
The matter was listed for today for a hearing pursuant to r.44.12 of the Rules and a copy of that rule was given to the Applicant.
The Applicant confirmed to the Court this morning that she had not filed any further documents, either in accordance with my directions or otherwise.
The Applicant confirmed that she relied on her application for judicial review, filed on 21 February 2014, which stated the grounds of review as follows:
“1. RRT decision is unfair. It doesn’t give me chance to provide further written evidence to address RRT’s concerns before RRT made final decision.
2. RRT didn’t apply the Convention and the complementary protection regulation in my case well. Before the formal hearing started, RRT member even asked me whether I believed my case belongs to the categories listed in the Convention. However, I think member should make her own decision after the hearing. It seemed to me that member had already formed false concept and therefore jumped to an unfavourable conclusion before listening to my answer to her questions.”
Ground 1 asserts that the RRT’s decision is unfair and that she was not given a chance to provide further written evidence to address the RRT’s concerns before the RRT made its final decision. The Applicant confirmed that that was her complaint before the Court and made no further submission in support of that assertion.
Section 422B of the Act states that Part 7 Division 4 is an exhaustive statement of the RRT natural justice obligations. To the extent that ground 1 asserts that the Applicant was not given a chance to provide further written evidence to address the RRT’s concerns, there was no obligation on the RRT to do so. It is well-established that the RRT’s thought processes and inconsistencies and doubts that it has about the Applicant’s evidence is not information that it is required to give the Applicant for comment, pursuant to s424A of Part 7 Division 4 of the Act. (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [14] per Finn and Stone JJ).
To the extent that ground 1 also asserts that the RRT’s decision is unfair, I understand that complaint to be one that the Applicant disagrees with the findings and conclusions made by the RRT. Those complaints invite merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
The RRT made adverse credibility findings in respect of the Applicant’s claims, comprehensively rejecting her claims in their totality. The RRT found the Applicant had fabricated her claims for protection. The RRT’s decision record discloses various exchanges that the RRT had with the Applicant during the course of the hearing, the matters of concern that it put to the Applicant, and the Applicant’s responses. Ultimately, the RRT found her evidence to be internally inconsistent, vague, and contradictory. The RRT considered whether these deficiencies could be explained after the birth of her baby but did not accept that as a satisfactory explanation to explain the concerns that it had had about the Applicant’s evidence.
The RRT also expressed concern that the Applicant’s oral testimony lacked the same detail as her written claims, and that aspects of her written claims were inconsistent with her oral testimony. The RRT found that the variation was significant and such variation cast further doubt upon the veracity of her claims. The RRT found that the Applicant’s evidence did not reveal any other basis for concluding that the Applicant would be entitled to protection, either under the Convention or under the complementary protection criterion, pursuant to s.36(2)(aa) of the Act.
It is well established that the RRT is not required to accept uncritically any and all claims made by an Applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
The RRT’s findings would appear to be open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the RRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
In the circumstances, there is nothing before this Court to support the assertion in ground 1 that the RRT’s decision was unfair.
In relation to ground 2, the Applicant said that the RRT member had not believed her; failed to consider whether she and her child would be at harm if returned to China in the future; and, did not consider what sort of life she and her child would have in China.
As stated above, a fair reading of the RRT’s decision record makes clear that the RRT set out the relevant law against which the Applicant’s claims were to be assessed. The RRT then summarised the Applicant’s claims and quoted in full the Applicant’s written claims. The RRT summarised various exchanges that it had had with the Applicant about her claims. In particular, the RRT noted that the Applicant was advised that the RRT had concerns about the credibility of her claims that she would suffer harm if she was to return to China.
The RRT noted that it put to the Applicant that she had travelled back to China on two occasions and, in her written statement, had sent her family photographs of her pregnancy. The RRT noted that it put to the Applicant that the RRT may have doubt about her claims that she was not in contact with her family for the reasons she claimed and that that may cause the RRT to be concerned about her credibility generally. The RRT noted the Applicant’s explanations but was ultimately not persuaded by them.
As stated above, it would appear to have been open to the RRT to make the findings that it did in respect of the Applicant’s claims and for the reasons it gave. A further reading makes clear that the RRT measured the Applicant’s claims and its findings against the Convention in s.36(2)(a) of the Act, and further considered whether the Applicant met the alternative criteria in s.36(2)(aa) of the Act.
In considering the complementary protection criterion, the RRT noted that the Applicant had made no other claims for protection beyond those that she made in support of her protection visa application. The RRT found that having found those claims were fabricated, the RRT was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia to China, that there was a real risk that she will suffer significant harm.
The RRT also rejected the Applicant’s claims that the child could be at risk of being kidnapped on the basis of the comprehensive adverse credibility findings made in respect of the Applicant’s evidence and claims. Again, the RRT noted that no other claims had been advanced on behalf of the child Applicant.
To the extent that ground 2 complains that the RRT member asked the Applicant if she believed if her case belonged to the categories listed in the Convention, even if accepted as true, there was no evidence before this Court to support such an assertion. In any event even if true, such a complaint, does not establish jurisdictional error on behalf of the RRT.
In the circumstances, the RRT’s conclusions in relation to the Applicant’s claims for protection both under ss.36(2)(a) and 36(2)(aa) of the Act would appear to be open to it on the evidence and material before it and for the reasons it gave.
While I make no final decision as to whether or not the RRT’s decision is affected by jurisdictional error, none is apparent on the face of the decision record. The RRT referred to the relevant law and affirmed the decision under review. There appears to be nothing on the face of the decision record to suggest that those findings were not open to the RRT on the evidence and material before it and for the reasons it gave.
The Applicant has not identified any error on the part of the RRT that is capable of establishing jurisdictional error on the part of the RRT.
In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed.
Accordingly, the proceeding before this Court, commenced by way of application on 21 February 2014, should be dismissed pursuant to r.44.12(1)(a) of the Rules, with costs.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 6 June 2014
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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