SZUSV v Minister for Immigration

[2016] FCCA 267

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUSV v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 267

Catchwords:
MIGRATION – Application for review of the decision of the Administrative Appeals Tribunal – whether the Tribunal provided an “intelligible justification” – whether the Tribunal failed to afford the applicant “natural justice” – whether the Tribunal improperly exercised its power – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 65, 422B, 425, 476, Part 7

SZQBN v Minister for Immigration and Border Protection [2014] FCA 686
SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407

Applicant: SZUSV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1963 of 2014

Judgment of: Judge Nicholls

Hearing date: 9 February 2016

Date of Last Submission: 9 February 2016

Delivered at: Sydney

Delivered on: 9 February 2016

REPRESENTATION

Solicitors for the Applicant: In Person

Solicitors for the Respondents: Ms H Musgrove of Sparke Helmore

ORDERS

1. The second respondent is amended to read “Administrative Appeals Tribunal”.

2. The application made on 14 July 2014 is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $ 5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1963 of 2014

SZUSV

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 14 July 2014 seeking review of the decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 10 June 2014, which affirmed the decision of the Minister’s delegate to refuse a Protection (Class XA) visa to the applicant.

Background

1. In evidence before the Court is a bundle of relevant documents filed by the Minister (“Court Book” – “CB”). The following background can be ascertained.

2. The applicant is a citizen of the People’s Republic of China (“China”) who arrived in Australia on 1 May 2013 on a visitor visa. The applicant applied for a protection visa on 16 May 2013 and was assisted by a registered migration agent (CB 1 to CB 30).

3. The applicant claims to fear harm on return to China due to her previous situation of domestic violence at the hands of her “ex-de facto husband” in China. The applicant claims that the police cannot protect her due to the fact that she was previously hurt, even when the police were aware of the situation and her ex-de facto husband told her that he would not do it again (CB 19 to CB 22).

The Delegate

1. The applicant was invited to attend an interview with the delegate. The applicant did not attend the interview. The delegate refused the applicant the grant of a protection visa on 20 October 2013 (CB 57 to CB 65). Essentially, the delegate found that “the applicant embellished her story and [was] not a credible witness of truth” (CB 61) and that the applicant had “fabricated her claims” to achieve a migration outcome (CB 62).

The Tribunal

1. The applicant applied to the Tribunal for review of the delegate’s decision on 20 December 2013 (CB 66 to CB 71). The applicant provided a written statement to the Tribunal (CB 72 to CB 76). The applicant confirmed the domestic violence situation with her

   
   

   “ex-de facto” in Beijing. The applicant claimed that she returned to her hometown, her ex-de facto followed her, beat her, and injured her father. The applicant claimed that she had travelled to Singapore and had married there to escape the domestic violence. She had returned to China on a number of occasions. On one occasion, after she had married in Singapore and returned to China to collect her belongings, her ex-de facto beat her, raped her and locked her up.  She claimed to have remained in China, away from her husband, for a period of 6 months, but she eventually escaped her ex-de facto and returned to Singapore.

2. The applicant travelled to Australia in May 2013 with her husband, who eventually returned to Singapore. The applicant claimed that she cannot return to China because her ex-de facto will harm her, and that she cannot “go back” with her “ex-husband” because he will divorce her.

3. The applicant, and her representative, attended a hearing before the Tribunal on 10 April 2014 (CB 86 to CB 88). The Tribunal affirmed the delegate’s decision to refuse the applicant a protection visa on 10 June 2014 (CB 94 to CB 108).

4. The Tribunal accepted that domestic violence can inflict “great trauma” on victims and that this can affect their ability to give evidence. However, the Tribunal found, after considering the evidence before it, that the applicant was not a credible witness and it rejected her claims in their entirety ([56] at CB 108).

5. The Tribunal stated that it had ([46] at CB 105):

   “…significant concerns about the credibility of the applicant's evidence. In this particular case, I was concerned that the applicant's oral testimony sometimes lacked the same detail as her written claims, aspects of her evidence were highly improbable, and there were inconsistencies and omissions between her oral testimony and her written claims. I was also concerned that when the Tribunal put its concerns to her, her evidence changed and I formed the view that she was shifting her evidence in the hope of strengthening her claims to protection. Also I consider the applicant's conduct in travelling in and out of China on multiple occasions undermines her claims to have a well-founded fear of persecution if she returns to China.”

6. The Tribunal found the applicant’s conduct in travelling in and out of China undermined her claim that she feared harm at the hands of her ex-de facto ([47] at CB 105). Of particular concern to the Tribunal was that she had given evidence that she, and her family, were involved in a violent altercation with her ex-de facto in August 2009, but she did not leave China until October 2010. The Tribunal found that the applicant had not “plausibly explained” why she was able to remain in China for that period unharmed. Further, that the applicant’s evidence in regards to this “shifted” and that there were “inconsistencies” and “omissions” between her written claims and her evidence to the Tribunal ([48] at CB 105 to [49] at CB 106).

7. The Tribunal was further concerned that the applicant had failed to mention in her written claims that her ex-de facto was detained by the police for 15 days after an altercation in China. Overall, the Tribunal found the applicant's evidence about when and why she first travelled to Singapore to be confused and unconvincing. It was further concerned that the applicant's written claims did not mention her claims, as made to the Tribunal, that her boyfriend was detained for fifteen days or that her boyfriend travelled to Shenyang on multiple occasions to threaten her ([49] at CB 105 to CB 106).

8. The Tribunal found that the applicant’s evidence about what happened after she returned to China in December 2010 was “vague” and differed from what was stated in her written claims ([51] at CB 106). The Tribunal found other aspects of the applicant’s various evidence, such as when her ex-de factor partner had last threatened her, and how she finally escaped him, to be “unconvincing”, and the Tribunal found that she was “attempting to recall her written statement of claims, rather than events that actually happened to her” ([52] at CB 106).

9. Further, the Tribunal found ([53] at CB 107):

   “…while I have significant doubts about the applicant’s evidence that she was unaware of the delegate’s interview, even it were to be accepted that the representative managed the applicant’s case in the manner she described, for the reasons I have set out above I am concerned that her claims, as articulated in her written statement and in her oral testimony before the Tribunal, have been fabricated.”

10. The applicant’s “evasive and contradictory” evidence about her address in Australia, and her explanation for why her husband accompanied her to Australia and returned to Singapore five days later, “reinforced” the Tribunal’s view that she was an “unreliable witness” ([54] at CB 107).

11. As the Tribunal did not accept that the applicant’s claims of past harm were truthful, it did not accept that there was real chance that the applicant would suffer any harm at the hands of her ex-de facto partner if she returned to China ([55] at CB 107 to CB 108). The Tribunal was not satisfied that the applicant met the criteria in ss.36(2)(a) or (aa) of the Act for the grant of a protection visa ([58] at CB 108).

Application before the Court

1. The grounds of the application are as follows:

   “1. The Refugee Review Tribunal made wrong test in making its decision.

   2. The Refugee Review Tribunal breached the rules of natural justice in making the decision.

   3. The making of the decision of the Refugee Review Tribunal was an improper exercise of the power conferred by the Migration Act.”

2. What is immediately apparent is that the applicant’s grounds are expressed in general of terms and lack particulars.

Before the Court

1. The applicant attended at a first Court date on 3 September 2014 and was assisted by an interpreter in the Mandarin language. A number of orders were made on this day for the conduct of this matter before the Court. The applicant was provided with the opportunity to file any further evidence by way of affidavit and any amended application. Nothing further has been filed by the applicant.

2. The applicant attended at a callover on 11 March 2015 before the NSW Registrar where the matter was set down for final hearing today. The applicant appeared before the Court today in person and was assisted by an interpreter in the Mandarin language. Ms H Musgrove appeared for the Minister. The Minister has filed written submissions in these proceedings.

Consideration

1. It is clear from what the applicant said to the Court today that she has little, if no, understanding of the nature of these proceedings.  She explained that the grounds of the application had been drafted for her by a friend of her current boyfriend in Australia.  In short, the applicant was not able to assist the Court today with explaining any legal error that the Tribunal may be said to have made.

2. In essence, the applicant’s complaints were that she did not lie, that she told the truth to the Tribunal, and that the Tribunal did not believe her.  The answer to that complaint is that there is no obligation on the Tribunal to believe what an applicant puts to it.  The obligation of the Tribunal is to give the applicant a meaningful opportunity to give evidence and arguments at the hearing (SZQBN v Minister for Immigration and Border Protection [2014] FCA 686 at [14] per Flick J, and SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 at [45]). There is no jurisdictional error in the Tribunal making findings disbelieving what an applicant says to it, in circumstances where those findings are reasonably open to the Tribunal, and the Tribunal provides reasons probative of the material before it (Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (“Li”)). That is what the Tribunal has done in the current matter.

3. The applicant further complained that Australian law requires the “protection of women”, that she had applied under the “refugee law” because she suffered domestic violence, and claimed that the Tribunal should have protected her.  This complaint misunderstands that simply making the allegation of domestic violence does not compel the Tribunal to then accept that that violence has occurred, and that the visa should be granted to the applicant. 

4. Ground one of the application simply asserts that the Tribunal applied the wrong test in the making of its decision. As I said earlier, the applicant applied for a protection visa. Relevantly, the criteria for the grant of this visa are set out at s.36(2) of the Act. I note that the Tribunal set out the relevant law in relation to s.36(2) of the Act in its decision record in unexceptional terms. There is nothing in the Tribunal’s decision record to say that the Tribunal subsequently misapplied its correct understanding of the law.

5. As the Minister correctly submits, the Tribunal is entitled to consider the credibility of an applicant’s claims in determining whether an applicant satisfies the criteria for the protection visa.  In this process, the Tribunal is entitled to weigh the evidence before it and consider whether the events that are claimed are probable or improbable.

6. In the current case, the Tribunal found that the applicant was not a credible witness.  The Tribunal gave reasons for this finding which were probative of the material before it (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407). The Tribunal’s antecedent findings which informed that conclusion were all findings of fact within the exercise of its jurisdiction.

7. Section 65 of the Act requires the Tribunal to reach the requisite level of satisfaction that the applicant meets the relevant criteria for the grant of the visa. In the current case, the Tribunal provided a reasonable and intelligible analysis as to why it could not reach this level of satisfaction (Li).  In all, ground one does not reveal jurisdictional error.

8. Ground two asserts a breach of natural justice.  It must be said that without particulars, and without some explanation from the applicant, the ground is meaningless and lacks merit.

9. It is the case, as the Minister submits, that s.422B of the Act, and Division 4 of Part 7 of the Act to which it relates, contains the exhaustive statement of the natural justice hearing rule in relation to the matters that are dealt with in that Division.

10. There is nothing in the evidence before the Court to provide any basis for a claim that the applicant was not afforded natural justice pursuant to Division 4 of the Act. On the evidence before the Court, the applicant was invited to, and attended, a hearing before the Tribunal, pursuant to s.425 of the Act.

11. The evidence reveals that the hearing was a meaningful opportunity for the applicant to present and explain her case.  The evidence also shows that the applicant was given a reasonable opportunity to explain her evidence.  The Tribunal’s subsequent disbelief of much of her evidence is not a basis to say that she has been denied natural justice.  Ground two also lacks merit. 

12. Ground three asserts that the making of the Tribunal’s decision was an improper exercise of the power conferred upon it by the Act. Again, without particulars or explanation, the ground lacks meaning. Further, I agree with the Minister’s submission that ground three appears to assert some unidentified failure by the Tribunal in the exercise of its statutory task. However, in the circumstances, ground three is not made out for the same reasons as I gave in relation to ground one above.

Conclusion

1. In all, the applicant’s grounds do not reveal jurisdictional error on the part of the Tribunal. The application to the Court should be dismissed. I will make an order accordingly.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  29 February 2016