SZUJY v Minister for Immigration & Border Protection

[2014] FCCA 2448

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUJY & ORS v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 2448

Catchwords:
MIGRATION – Refugee Review Tribunal.

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: 

Federal Circuit Court Rules 2001 (Cth) rr.44.12, 44.13
Migration Act 1958 (Cth) s.424AA

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155

First Applicant: SZUJY

Second Applicant: SZUJZ

Third Applicant: SZULA

Fourth Applicant: SZULB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1433 of 2014

Judgment of: Judge Emmett

Hearing date: 17 October 2014

Date of Last Submission: 17 October 2014

Delivered at: Sydney

Delivered on: 17 October 2014

REPRESENTATION

The first and second applicants appeared in person with the assistance of an interpreter.

Solicitors for the Respondents: Ms Michelle Stone (DLA Piper)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1433 of 2014

SZUJY

First Applicant

SZUJZ

Second Applicant

SZULA

Third Applicant

SZULB

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application by the applicants pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), for an order requiring the respondent to show cause why the Court should not grant the relief sought in the application filed on 28 May 2014.

2. 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.”

3. 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 proceeding before this Court

1. The first applicant was unrepresented before the Court this morning, although had the assistance of an Arabic interpreter. The first applicant confirmed that the claims of the second, third and fourth applicants are dependent upon hers.

2. On 8 August 2014, the first applicant attended a directions hearing before me. I explained to the first applicant that this Court has no power to interfere with the decision of the Refugee Review Tribunal (“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 first 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.

3. I also explained to the first 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.

4. At the directions hearing, the first applicant was provided with a copy of the applicable costs schedule of the Court and I explained to the first applicant the consequences that may flow to him if a costs order was made against the applicants.

5. The first applicant confirmed that she wished to continue with the application for judicial review of the RRT’s decision. The applicants were 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 3 October 2014. The applicants were also directed to file and serve written submissions in support of the grounds of her application by 3 October 2014.

6. On 7 October 2014, by consent the Court extended time to the applicants to file and serve any evidence by way of affidavit, together with any written submissions, to 7 October 2014. The first applicant subsequently filed an affidavit annexing a copy of the transcript of the RRT hearing.

7. At the directions hearing, the first applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in her own language.

8. The matter was listed for today for a hearing pursuant to r.44.12 of the Rules, a copy of which was given to the first applicant.

9. The first applicant confirmed that the applicants relied on the grounds of review as disclosed in the application filed on 28 May 2014, as follows:

   “1. The Tribunal engaged in jurisdictional error by misconstruing or failing to consider a claim or component integer thereof made or squarely raised by the material before it

   Particulars

   A. The Tribunal failed in consider my main claim that I feared harm and killing by reason of engaging in out of marriage relationship, but rather she only addressed a broader claim concerning different aspects far from my main claim disregarding the real risk of being killed and seriously harmed by my family if I return back to Jordan.

   2. The Tribunal committed a jurisdictional error by denying the procedural Fairness

   Particulars

   The Tribunal did not accept that I ever fled to (Wadi Musa) and list my current address as being in Amman, as I explained in the hearing, I was staying at my husband’s friend’s apartment on temporary basis and would leave the place at any time.”

10. Each of the grounds was interpreted for the first and second applicants who appeared today, and the first applicant was invited to make submissions in support of each of the grounds. 

11. The solicitor for the first respondent, Ms Stone tendered a bundle of relevant documents identified as “Court Book” and marked exhibit 1R.  In exhibit 1R is a copy of the Tribunal’s decision record. The applicant’s claims and the Tribunal’s decision record are accurately summarised in the first respondent’s written submissions as follows:

    “2. The first named applicant (hereafter referred to as the applicant) is a female citizen of Jordan.  The second named applicant is her husband, and the third and fourth named applicants are their sons (who are under 18).  The applicants arrived in Australia on 22 December 2012 on Tourist visas, and applied for Protection visas on 12 February 2013.[1]

    2.1 The applicant claimed to be from a conservative Muslim family.  She claimed to have started an affair in April 2012 with a man who worked at her local florist.  The applicant claimed that her husband discovered the affair after about 6 months in October 2012 and confronted her about it, and that she admitted to the affair.  The applicant claimed that her husband and his brothers called the applicant's family and told them about the affair, which caused the applicant's brother and father to come to the house and beat her.  Following this the applicant's husband and his family kept the applicant's father and brothers away from her, and the applicant's father and brothers were threatening to kill the applicant.

    2.2 The applicant claimed that she and her husband and their children went into hiding in Wadi Musa, away from Amman where they lived. The applicant and her husband eventually decided to leave the country and this was why they travelled to Australia.  They applied for Tourist visas in November 2012. 

    2.3 The applicant claimed that if returned to Jordan she would be the victim of an honour killing at the hands of her family.

    [1] CB 1-60

    …

    6. The RRT made its decision on 30 April 2014, affirming the decision not to grant the applicants Protection visas.[2]

    7. The RRT found that the applicant was not a credible witness and had fabricated her claims.[3]

    8. The RRT found that the applicant's account of her husband's sister's circumstances was inconsistent with that of her husband to such an extent that it caused the RRT to form an adverse opinion of the applicant's credibility, which was reinforced by other aspects of her claims.[4]  The RRT did not accept the explanation for the inconsistency provided in the post-hearing submissions.[5]

    9. The RRT considered the applicant's account of the person with whom she had an affair to be unconvincing.[6]   The RRT found that the applicant's account of events following the discovery of the affair lacked credibility.[7]  In particular, the RRT had concerns that despite the applicant and the husband's account of a severe and violent beating, the only injuries sustained were minor and they did not seek out a doctor.

    10. The RRT did not accept that the applicant had a close personal relationship with the employee of a florist shop,[8] and did not accept that the claimed assault by the applicant's family ever took place.[9]  The RRT did not accept that the applicants ever fled to Wadi Musa, because it did not accept the assault occurred and because of the address given on their Tourist visa applications.

    11. The RRT had regard to the delay of one month between the claimed incident and applying for visas to come to Australia, and the fact that Jordanians can travel without a visa to a number of countries in the region.  The RRT did not accept the applicants' explanation for the delay.[10]

    12. The RRT gave the statutory declarations of the applicants no weight based on its view of the applicant's credibility.  The RRT gave the witness's evidence no weight as she is a friend and sister in law of the applicant and had no first-hand knowledge of the claimed events.[11]

    13. The RRT concluded that the applicants did not meet the Refugee Convention criteria,[12] and that they did not meet the complementary protection criteria.[13]”.

    [2] CB 202-213

    [3] At CB 209 [52]

    [4] CB 209 [53]

    [5] CB 209 [56]

    [6] CB 210 [57]-[58]

    [7] CB 210 [59]-[62]

    [8] CB 210 [57]

    [9] CB 211 [63]

    [10] CB 211 [64]

    [11] CB 211 [65]

    [12] CB 211 [66]

    [13] CB 211 [67]-[68]

12. As stated above, the RRT found that the first applicant had fabricated her claims and did not accept that the first applicant had the affair, as claimed, or that she suffered the consequences, as claimed.

13. In relation to Ground 1, the first applicant said that the RRT had failed to consider that on appealing in Jordan is performed pursuant to a tribal law.  The applicant submitted that the RRT failed to consider that the tribal culture in her country enabled honour killings in circumstances, such as an affair outside marriage. However, having found that such an affair did not take place, there was no obligation on the RRT to further consider the consequences of the tribal culture in Jordan. 

14. A fair reading of the RRT’s decision record suggests that the RRT’s findings, including its adverse credibility findings, were open to it on the evidence and material before it and for the reasons it gave.  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).

15. 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).

16. In Ground 2, the applicant appears to complain about the RRT’s finding that it did not accept that she had fled to Wadi Musa. The RRT made that finding based on evidence and information before it that it put to the applicant and explored with her at the hearing and noted her responses. In particular, the RRT noted that in her visitor’s visa, the applicant had provided her current address in Jordan as in Amman. The RRT put its concerns about that information to the applicant, given that it was inconsistent with the applicant’s claim to have been living in Wadi Musa at that time. The RRT noted the applicant’s explanation but was not persuaded by it. Again, the RRT was not obliged to accept the applicant’s explanation. There is nothing on the face of the RRT’s decision record to suggest that its rejection of that explanation was not open to it on the evidence and material before it and for the reasons it gave.

17. There is also nothing on the face of the RRT’s decision record to suggest that the information contained in the applicant’s tourist visa of her address in Amman was not put to the applicant in accordance with s.424AA of the Migration Act 1958 (Cth). In the circumstances, the RRT’s finding rejecting the applicant’s claim to have ever fled to Wadi Musa would appear to be open to it on the evidence and material before it and for the reasons it gave.

18. Whilst I make no final finding as to whether or not the RRT’s decision is affected by jurisdictional error, as stated above, none is apparent on the face of the decision record and none has been identified by the applicants.

19. 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 28 May 2014, should be dismissed pursuant to r.44.12(1)(a) of the Rules, with costs.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:              27 October 2014