SZUHB v Minister for Immigration

[2016] FCCA 2258

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUHB v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2258

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

PRACTICE & PROCEDURE – Application to reinstate proceedings summarily dismissed for non-attendance – relevant considerations.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Federal Circuit Court Rules 2001, rr.13.03C, 16.05

Migration Act 1958, ss.36, 474

Cases cited:

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant: SZUHB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1168 of 2014

Judgment of: Judge Cameron

Hearing date: 16 August 2016

Date of Last Submission: 16 August 2016

Delivered at: Sydney

Delivered on: 16 August 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr M. Wiese of Clayton Utz

ORDERS

1. The applicant’s application in a case filed on 19 July 2016 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to that application in a case fixed in the amount of $2,000.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1168 of 2014

SZUHB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant is a citizen of Nepal who arrived in Australia on 28 February 2009 as the holder of a student dependant visa. On 21 February 2013 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in Nepal because of his marriage to his cousin. On 30 July 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. He was unsuccessful before the Tribunal and on 30 April 2014 he applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

2. The applicant’s application was listed for its first court date on 26 May 2014. The applicant appeared at the first court date, at which time the matter was listed for callover on 15 December 2014. The applicant also appeared at the callover when the matter was listed for a show cause hearing on 17 June 2016. On 12 May 2016 the Court wrote to the applicant and advised him that his hearing date had been changed to 20 June 2016. There was no appearance by the applicant on that occasion and on the application of the Minister the proceedings were dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (“Rules”).

3. These reasons concern an application in a case filed by the applicant pursuant to r.16.05 of the Rules seeking to set aside the orders made by this Court on 20 June 2016 on the basis that those orders were made in his absence.

4. In deciding whether to grant the present application, consideration must be given to whether the applicant’s explanation for his non-attendance on 20 June 2016 is a satisfactory one and whether, nevertheless, he has reasonable prospects of success.  The Minister did not suggest that he would suffer any prejudice by reinstatement of the matter other than costs.

SATISFACTORY EXPLANATION

1. Turning first to whether the applicant has provided a satisfactory explanation for his non-attendance, in his affidavit filed on 19 July 2016 in support of his application to set aside the orders made on 20 June 2016, the applicant deposed that he had forgotten the date because of depression.  He was not cross-examined on this evidence and he repeated it from the bar table at the hearing of the present interlocutory application.

2. While it may be accepted that the applicant forgot, and even that he is depressed, although by that expression I do not mean to imply that I accept that the applicant suffers from a medically diagnosed depressive illness, those facts alone do not satisfactorily explain his absence from Court on 20 June 2016.  The applicant has not shown that his mental processes were disturbed such that he was prevented or distracted in some way from remembering the listed hearing date.  He has not proved anything more than forgetfulness and a low mood.  These things do not amount to a satisfactory explanation for not attending the previously listed hearing.  I therefore find that the applicant has not made out the first aspect of the matter which I must take into account.

REASONABLE PROSPECTS OF SUCCESS

1. An application to reinstate a proceeding in the present circumstance would not be granted unless the applicant had demonstrated reasonable prospects of success on the principal application.  In the absence of such prospects, the substantive application would be liable to be dismissed.  This calculus is not altered by the fact that on 20 June 2016 the matter had been listed for a show cause hearing, at which the Court would have considered, as a preliminary issue, whether the applicant had an arguable case for the relief sought.

2. It should be noted that in proceedings for judicial review of a Tribunal decision, the Court cannot reconsider the visa application underlying that decision. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error, as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Consequently, an applicant in the present circumstances must demonstrate reasonable prospects of proving that the Tribunal’s decision is affected by jurisdictional error.

Background facts

1. The applicant claimed to fear harm in Nepal because of his marriage to his cousin, his paternal aunt’s daughter.  The applicant’s claims as set out in a statement attached to his protection visa application were summarised by the Minister in his written submissions as follows:

   (a)The applicant and his wife began their romantic relationship in secret but it was discovered by his wife’s friend.  This friend told the applicant’s parents-in-law of the relationship.  Following this, the applicant was beaten, “given physical and mental torture”, expelled from the community and threatened with death by his wife’s parents and relatives.

   (b)The applicant and his wife ... came to Australia after his parents-in-law agreed to support her study overseas.  The applicant’s wife secretly included his name in the student visa application and in this way the applicant obtained a dependant student visa and entered Australia.  When he arrived, the applicant intended to remain permanently in Australia.

   (c)The applicant’s married life in Australia did not go as planned.  His parents-in-law asked his wife to return to marry a man of their choice, and declined to finance her education.

   (d)The applicant told his brother about his relationship with his cousin.

   (e)The applicant claimed to be suffering “depression and substantial psychological distress”.  He feared persecution if he were to return to Nepal because his incestuous relationship was not accepted or tolerated in Nepalese culture. He feared that he would be discriminated against, expelled, jailed or killed in Nepal.  He feared this harm from his wife’s parents and relatives and from religious and conservative people.

2. The Minister also summarised in his written submissions the applicant’s evidence at a Tribunal hearing held on 24 March 2014 as follows:

   (a)The applicant was married to his cousin in April 2008.

   (b)There were problems in the marriage from early 2012.  Five or six months later the applicant’s wife moved to a different address.  In mid-2013, the couple divorced after signing the necessary papers in November 2012

   (c)In November 2012, the applicant’s wife returned to Nepal.

3. I adopt the Minister’s summary of the applicant’s claims.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act. In his written submissions the Minister set out the Tribunal’s findings and reasons for its decision in the following terms which I adopt:

   21.Before addressing the applicant’s substantive claims, the Tribunal observed that the applicant claimed to be suffering depression and psychological distress.  The Tribunal was nonetheless satisfied that the applicant was able to give evidence and present arguments at the hearing.  This was because the Tribunal observed nothing to indicate that the applicant had any difficulty in this regard and he did not bring to the Tribunal’s attention any medical issues.

   22.The Tribunal found that the applicant was an untruthful witness and that none of his claims or evidence could be relied upon as truthful.  It found that the applicant had entered into a sham marriage for the purpose of securing entry into Australia.  It expressly rejected each of the key elements of the applicant’s claims, save for the fact that he had formally entered into a marriage.

   23.The Tribunal detailed its concerns in relation to the genuineness of the applicant’s claimed relationship and marriage to his cousin at paragraph 18 of its reasons for decision.  In summary, the Tribunal’s concerns included the following:

   (a)The applicant claimed that he had known his cousin since they were young.  Asked about the history of this relationship, and the development of their romantic interest, the applicant’s evidence was vague and unconvincing.  He did not appear to be recounting actual experiences.

   (b)The applicant’s evidence at the hearing in relation to violence or threats of violence from his parents-in-law was inconsistent in significant respects with his written claims.

   (c)The Tribunal invited the applicant to give details about his wife but he did not appear to be able to do so beyond basic information such as the fact that she had a sibling.

   (d)The applicant claimed that he was able to keep the relationship secret from his own parents.  The Tribunal doubted, given his claims and evidence relating to his parents-in-law, that his parents-in-law would not have spoken to his own parents about the relationship.

   (e)The Tribunal invited the applicant to provide evidence that the couple lived together in Australia as husband and wife from February 2009.  The applicant’s response was that he did not have any such evidence to give.

   (f)The applicant’s evidence about the development of the couple’s romantic relationship, especially as to its timing, was “extremely vague”.  For example, the applicant’s evidence in relation to the trouble that the couple experienced and the timing of their separation and divorce was vague and confused and internally inconsistent.

   (g)The applicant claimed that his cousin was forced to return to Nepal after her parents ceased to support her financially.  The Tribunal observed that this raised the question as to why his cousin would continue to rely on her parents financially if she lived with the applicant as her husband in Australia and the applicant had permission to work.

2. The Tribunal also found that the applicant’s delay in lodging a protection visa was inconsistent with his claimed fear of persecution.  It noted that he had arrived in Australia in February 2009 but did not apply for a protection visa until four years later, in February 2013.  The Tribunal did not accept the applicant’s explanation for the delay.  It also noted that after his wife returned to Nepal in November 2012, the applicant still waited a further three months before he sought protection.  The Tribunal concluded that the delay indicated that the applicant had no fear of persecution in Nepal and was, rather, seeking another basis on which he could obtain permanent residency in Australia.

Proceedings in this Court

1. In the application commencing these proceedings the applicant alleged:

   1.I am unhappy with the Refugee Review Tribunal Member’s decision in my case because I have been given no fairness and good faith in my claims.

   2.My delay in lodging a protection visa application shouldn’t be an issue given the fact that I told the truth.

   3.I argue that my credibility is not an issue but the Tribunal Member’s purported view in my claims is an issue in my case.

Grounds 1 and 2

1. Although I hesitate to quote a further portion of the Minister’s written submissions, I find that his submissions in relation to the first two grounds of the application are pithy and well expressed and I agree with them.  They were:

   28.Ground 1 alleges unfairness and a lack of good faith but does not identify how this is said to arise.  No unfairness is apparent from a review of the documents in the Court Book.  The applicant’s claims were evidently considered by the Tribunal, and the applicant was given the opportunity to give evidence and present arguments in relation to those claims at a hearing.  The applicant did not take up the opportunity given to him to file particulars of this ground or to serve evidence of unfairness of a lack of good faith.  The ground does not of itself give rise to an arguable case for the relief claimed.

   29.Ground 2 misconstrues the manner of the Tribunal’s reasoning because it assumes the credibility of the applicant’s claims in order to impugn the Tribunal’s reasoning in relation to the delay in applying for a protection visa. In fact, the delay in applying reinforced the Tribunal’s adverse findings as to credibility.  It was open to the Tribunal to reason in this way.  This ground does not give rise to an arguable case for the relief claimed.

Ground 3

1. In his written submissions, the Minister correctly submitted that the third ground of the application did not contain an allegation of jurisdictional error and thus did not give rise to an arguable case for the relief claimed.  However, it should also be stated that the applicant appeared, from that allegation, to believe error to be disclosed by the fact that the Tribunal based its decision on a credibility finding.  That is not correct.  Questions of credit are, as McHugh J said in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407, matters for the Tribunal “par excellence”.

Submissions at hearing

1. At the hearing of this application, the applicant submitted that the Tribunal did not consider his case properly.  The applicant did not identify any aspect of his case which was not considered and so this must be seen to be no more than a complaint about the Tribunal not making a finding in his favour.  That is to say, he invited the Court to consider whether, on the evidence, the Tribunal’s decision was the preferable one.  For reasons already explained, the Court cannot do that.

Finding

1. For these reasons, I find that the substantive application for judicial review would not have reasonable prospects of success were the orders made on 20 June 2016 to be set aside. 

CONCLUSION

1. The applicant has demonstrated neither a satisfactory explanation for his failure to attend on the last occasion nor reasonable prospects of success on the substantive application for judicial review. 

2. Consequently, the application to set aside the orders of 20 June 2016 will be dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 1 September 2016