SZUQA v Minister for Immigration & Border Protection
[2014] FCCA 2690
•13 November 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUQA v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2014] FCCA 2690 |
| 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. |
| Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZUQA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1826 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 13 November 2014 |
| Date of Last Submission: | 13 November 2014 |
| Delivered at: | Sydney |
| Delivered on: | 13 November 2014 |
REPRESENTATION
| The applicant appeared in person with the assistance of an interpreter. |
| Solicitors for the 1st Respondent: | Mr Stephen Spiers (Clayton Utz) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1826 of 2014
| SZUQA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application pursuant to r.44.12 of the Federal Circuit 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 2 July 2014.
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.”
On 22 October 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 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 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 may 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 the application for judicial review of the RRT’s decision. 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 31 October 2014. The applicant was also directed to file and serve written submissions in support of the grounds of his application by 31 October 2014.
On 29 October 2014, the applicant filed an Amended Application identifying the following grounds:
“1. The applicant was not given opportunity to comment on the information forming the basis of the decision made by Refugee Review Tribunal.
2. There was a breach of the rules of natural justice occurred in connection with the making of the decision.
3. The Refugee Review Tribunal failed to consider whither a law of general application had a discriminatory impact on the applicant.”
The applicant was unrepresented before the Court this morning, although had the assistance of an interpreter.
The applicant confirmed that she relied on the grounds in her Amended Application. Those grounds were interpreted for the applicant and she was invited to say whatever she wished in support of those grounds.
The background of this matter, together with the applicant’s claims and a summary of the RRT’s decision are accurately set out in the first respondent’s written submissions as follows:
“Background
3. The applicant is a national of the People's Republic of China (China). On 21 May 2013, the applicant applied for a Protection (Class XA) visa (protection visa).[1]
[1] Tribunal decision record dated 29 May 2014 (DR) [1]-[3].
4. On 20 November 2013, a delegate of the Minister refused the application. The applicant applied to the Tribunal for review of the Delegate's decision. On 29 May 2014, the Tribunal affirmed the Delegate's decision.[2]
5. The applicant commenced the current proceedings on 2 July 2014. An amended application was filed on 29 October 2014.
Applicant's claims
6. The applicant's claims may be summarised as follows:[3]
i. the applicant fled China because she was stalked, harassed, and threatened with extortion and harm by her ex-boyfriend (Mr XC);
ii. when she ended her relationship with Mr XC, he took revenge by raping her younger sister. Her sister subsequently killed herself;
iii. shortly after this, Mr XC was sentenced to jail for robbery. Upon his release, he sought out the applicant demanding money and threatened to show photographs of her sister from when she was raped to her parents;
iv. while the applicant sought the assistance of the police, Mr XC was only detained for a couple of months and continued to threaten and harass her and her family upon his release. She had been forced to go into hiding; and
v. the police are reluctant to intervene in domestic matters and will not protect her.
[2] Ibid.
[3] DR [9]-[55].
Tribunal's decision
7. The Tribunal found that the applicant was not a credible witness due to the inconsistency and vagueness of her evidence. The Tribunal identified the following issues with respect to the applicant's credibility:
a. the applicant had travelled in and out of China a number of times without seeking protection. The Tribunal considered this behaviour to be inconsistent with someone who genuinely feared harm;[4]
b. the applicant claimed to have been forced to go into hiding, but had provided evidence that she had not changed her residential address;[5]
c. there were inconsistencies in the applicant's evidence about her family's interactions with the police;[6] and
d. the applicant named her current husband as her harasser in her visa application, but her former partner as her harasser in her written statement and evidence before the Tribunal.[7]
8. For the above reasons, the Tribunal was not satisfied that the applicant was a person to whom protection obligations were owed.”
[4] DR [59], [61].
[5] DR [63].
[6] DR [45]-[47], [64]-[68].
[7] DR [47], [66]-[71].
In relation to the applicant’s claims, the applicant said that it was hard for her to support her claims because the events happened many years ago. The applicant seemed to be asserting that the RRT should have investigated her claims further itself. The applicant also stated that her migration agent had mixed up the names during the hearing. I understand that statement to be a complaint about the RRT’s adverse credibility finding in relation to the applicant’s inconsistent evidence given in her written claims that she would be killed by her husband, Jiang Lian, and her oral testimony to the RRT that she feared harm from her ex-boyfriend, Mr XC.
The RRT’s decision record makes clear that the applicant attended a hearing before it, at which the RRT explored in detail the applicant’s claims with her. The RRT put to the applicant, matters of concern that it had about her evidence and noted the applicant’s responses. In particular, the RRT put to the applicant that it had difficulty reconciling her claims that she would suffer serious or significant harm from her boyfriend with the fact that she had returned to China on a number of occasions.
The RRT also noted that it raised with the applicant concerns that it held about the apparent discrepancy between her protection visa application and the statement submitted to the RRT. The RRT noted its concerns that the applicant had not attended the interview with the delegate of the first respondent, as that would have been an opportunity for her to put forward her case. The applicant responded that her migration agent was responsible for those matters. However, the RRT did not accept that as a satisfactory explanation for the concerns that it had.
Ultimately, the RRT made adverse credibility findings in respect of the applicant. The RRT comprehensively rejected all her claims to fear persecution in China for the reasons claimed. The RRT found that the applicant had fabricated her claims in order to obtain a protection visa and to secure permanent residency in Australia.
There is nothing on the face of the RRT’s decision record to suggest that its findings and conclusions were not open to it on the evidence and material before it or 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).
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 complaints made by the applicant in her Amended Application are more in the nature of a disagreement with the findings of the RRT. Such complaints invite merit review which this court cannot undertake (see 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).
To the extent that the applicant appeared to be complaining that the RRT should have made its own enquiries to obtain further evidence from the applicant’s parents, there is no general obligation on a RRT to investigate an applicant’s claims (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in joint judgment). The duty imposed on the RRT by the Act is a duty to review and not a duty to enquire (see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
In relation to the applicant’s complaint that the discrepancy in her testimony was due to her migration agent’s mistake, there is no other evidence to support such an allegation. By itself such an allegation does not demonstrate error on the part of the RRT that goes to its jurisdiction.
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 2 July 2014, should be dismissed pursuant to r.44.12(1)(a) of the Rules, with costs.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 19 November 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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