SZUXL v Minister for Immigration

[2015] FCCA 2469

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUXL & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2469

Catchwords:
MIGRATION – Application under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) to dismiss an application for judicial review of a decision of the Refugee Review Tribunal – whether applicant has raised an arguable case for relief – no arguable case for relief raised – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)a, 36(2)(aa)

Federal Circuit Court Rules 2001 (Cth), rr.11.11(1), 11.11(2), 44.12(1)(a)

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429

First Applicant: SZUXL

Second Applicant: BTG15

Third Applicant: BTH15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2249 of 2014

Judgment of: Judge Manousaridis

Hearing date: 1 September 2015

Delivered at: Sydney

Delivered on: 1 September 2015

REPRESENTATION

The first, second and third applicants appeared in person assisted by an interpreter

Solicitors for the Respondents: Mr A Keevers of Sparke Helmore

ORDERS

1. The second named applicant before the Refugee Review Tribunal is added as the second applicant in these proceedings.

2. The third named applicant before the Refugee Review Tribunal is added as the third applicant in these proceedings.

3. The second applicant is appointed the litigation guardian of the third named applicant before the Refugee Review Tribunal.

4. Compliance with r.11.11(2) of the Federal Circuit Court Rules 2011 (Cth) be dispensed with.

5. Pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2011 (Cth) the application is dismissed.

6. The first and second applicants pay the first respondent’s costs set in the amount of $3,326.

7. The name of the second respondent be amended to read Administrative Appeals Tribunal.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2249 of 2014

SZUXL

First Applicant

BTG15

Second Applicant

BTH15

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction

1. Before the Court is an application by the first respondent (Minister) for an order under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) that the application for review be dismissed because the application does not raise an arguable case for the relief it seeks. The application relates to a decision of the second respondent (Tribunal) affirming a decision of a delegate of the Minister not to grant a Protection visa to the applicant and to the applicant’s husband and child.  The applicant, her husband, and their child are citizens of India.

2. At the beginning of the hearing I inquired of the applicant whether she and her husband intended that only the applicant be an applicant in these proceedings.  After I was informed that it was the applicant’s and her husband’s intention that she, her husband and their child be applicants in the proceedings, I made orders joining the husband and the child as second and third applicants respectively.  I also made an order that the husband (second applicant) be appointed a litigation guardian for their daughter.

Claims for protection

1. The applicant (first applicant) stated her claims for protection in a statement accompanying the first applicant’s application for a Protection visa titled “A Miserable Life:  How Marriage Shattered The Life. A Woman”.  In her statement the first applicant claims she led a normal life in a middle-class Hindu family in India until her marriage in August 2005.  At the age of 25 the first applicant’s parents found her a man whom she later married.  The first husband was abusive.  The first applicant became miserable and began to take anti-depressants.  After discussions with her family the first applicant decided to go to a home for the depressed and stay there for three months which “brought back [her] normal life”.

2. On 27 May 2007, the first applicant and her former husband divorced by way of a mutual divorce settlement agreement.  In April 2009, the first applicant married the second applicant and they had a daughter, the third applicant. In July 2011, however, the second applicant informed the first applicant that her former husband had landed and had started “moves” against her in her neighbourhood where the second applicant worked.  The first applicant’s former husband threatened to kill her and also started to make threatening phone calls to her.  The second applicant could not go to work as he feared the first applicant’s former husband might attack her or their child if they were home alone.  The first applicant, the second applicant and their child changed residence many times, but to no avail.  Their child was suffering, they lost sleep and peace and decided they could not stay in Kerala.  They then moved to Australia.

Tribunal hearing

1. The first applicant and the second applicant appeared before the Tribunal on 27 June 2014. The second applicant, who had not previously given evidence or provided a statement, gave evidence before the Tribunal that he felt threatened about two months after his marriage to the first applicant because he was hit by a truck which did not stop when he was in a two-wheeler vehicle. The second applicant said the accident was caused by the first applicant’s former husband because his friends found out that the truck belonged to the mafia and the first applicant’s former husband belonged to a mafia gang. The second applicant showed the Tribunal a scar on his head and the second applicant said he did not report the incident because the police are linked to the mafia. If they complained he and the first applicant would be arrested.

Tribunal’s decision

1. The Tribunal accepted a number of things.  It accepted the first applicant had been married to her former husband and that they divorced by mutual consent on 27 March 2007; the first applicant and the second applicant were married on 22 April 2009 and that their first child was born in India in 2011; the first applicant’s former husband was an alcoholic; during the first applicant’s marriage to her former husband she spent three months in a home for the depressed; the first applicant’s former husband had been mentally and physically abusive during their marriage; and it was for this reason that the first applicant’s parents instigated a divorce on behalf of the first applicant.  The Tribunal, however, was not satisfied the first applicant and the second applicant were witnesses of truth in relation to the claims made regarding past harm by the first applicant’s former husband which was claimed to have occurred after their current marriage.  The Tribunal found that both the first applicant and second applicant fabricated these claims in support of their Protection visa applications.

2. The Tribunal relied on a number of matters for these findings. First, the Tribunal found that the first applicant and second applicant gave significantly inconsistent evidence about the claimed number of attempted attacks on them by the first applicant’s former husband between the time of their marriage in April 2009 and their arrival in Australia in 2013.  The first applicant gave evidence that there had been about 100 encounters between the first applicant, the second applicant and the first applicant’s former husband and his gang while the second applicant gave evidence that there were only three encounters during this period.  When these inconsistencies were put to the first applicant and the second applicant the first applicant said that sometimes the attacks happened to her alone and at other times when she was with the second applicant, while the second applicant said that the attacks happened to him a lot of the time, but he didn’t tell the first applicant as she and their daughter would get upset.

3. Second, despite the claims made by the first applicant and the second applicant of continuous serious threats and attempted attacks to kill them, they remained living in the same area as the first applicant’s former husband for a significant period of time and both had stable jobs.  When the Tribunal put this to the first applicant and second applicant, noting that the first applicant’s former husband could have found them and harmed them and if they genuinely feared harm they could have moved to another location and found work, the second applicant said that he could not go elsewhere and do his work duties and the first applicant said that they could not go anywhere else and find jobs.  They needed protection in Australia.

4. Third, the Tribunal expressed concerns about the first applicant’s and the second applicant’s delay in leaving India some two months after their Australian visas were granted. When the Tribunal put this to the first applicant and the second applicant, the second applicant said they needed to accumulate money to come to Australia.

5. Fourth, the Tribunal had a number of concerns about the first applicant’s credibility in relation to her claims about past harm after she married the second applicant.  The Tribunal found that the first applicant gave evasive and inconsistent evidence about her employment.  The first applicant gave evasive evidence about when, after the divorce, her former husband threatened to kill her. The first applicant gave unpersuasive evidence about why she did not report to the police any of the 100 attacks she claimed her former husband made and the first applicant gave unpersuasive evidence about why she could not relocate to avoid the harm from her former husband.

6. The Tribunal, therefore, was not satisfied the former husband had any interest in the first applicant since their divorce or that the first applicant’s former husband threatened to harm the first applicant or her family.  The Tribunal was also not satisfied that the first applicant or her family have suffered from fear of or from actual harm at the hands of the first applicant’s former husband in the period from the divorce in March 2007 until they left for Australia in May 2013.  The Tribunal found the first applicant and the second applicant did not move houses because of fear of the first applicant’s former husband or any gang or that the first applicant and the second applicant came to Australia to seek protection.

7. The Tribunal was not satisfied the applicants would face a real chance of serious harm for a Convention reason in India now or in the reasonably foreseeable future or that there is a real risk of significant harm to the applicants from the first applicant’s former husband, noting the first applicant’s former husband has shown no interest in the applicants in the six year period between the divorce and the applicants travelling to Australia. 

Grounds of review

1. The application filed by the applicants in this Court contains the following grounds:

   For taking the mentioned evidence in the statement.

   Statement from the Kerala Police department thriponithura.

   Affidavit of my friends regarding the incidents happened in my life or in my case mentioned.

2. At the hearing before me, the second applicant explained the intended meaning of this text.  The first two lines are intended to state that the second applicant submitted a statement to a police station in Kerala, but he was unable to obtain it for the purposes of the Tribunal. The second applicant said he informed the Tribunal that he was unable to obtain such statement. The second applicant also said that the reference in the third line of the grounds stated in the application to “affidavit” is intended to be a reference to the applicant’s inability to put before the Tribunal affidavits that supported their claims before the Tribunal.     

3. The grounds stated in the application, as explained by the second applicant, raise no arguable case for the relief the application seeks.  It was for the applicants to present evidence to the Tribunal in support of their case. In any event, in the absence of any transcript of the hearing before the Tribunal, I am not prepared to accept that the applicants informed the Tribunal that the second applicant had provided a statement to police in India.  The Tribunal noted, in its reasons for decision, that the first applicant said that although her former husband had attempted to harm her 100 times, she did not go to the police. 

4. The second applicant made a number of submissions. He said that the Tribunal did not consider the evidence the applicants submitted to the Tribunal or their case. That submission is not arguable. It is beyond argument the Tribunal considered the evidence of the first applicant and the second applicant. Unfortunately for the applicants, the Tribunal did not accept that evidence. It is also beyond argument that it was reasonably open to the Tribunal not to accept the evidence of the first applicant and second applicant for the reasons the Tribunal gave.

5. The second applicant also submitted that the Tribunal did not investigate the applicant’s claims.  That submission, too, is not arguable.  The Tribunal has no general duty to investigate matters that are raised by an applicant for a review.  At most, the Tribunal has a duty to inquire about a critical fact, the existence of which may be easily ascertained (see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429). There is nothing in the material before me that arguably indicates there was an alleged fact before the Tribunal whose existence could have been easily ascertained, but about which the Tribunal failed to make any inquiry.

6. The first applicant submitted that the applicants are afraid for their lives back in India, that their daughter is safe here and that their daughter is very happy here.  These matters do not raise any arguable case for the relief the applicants seek in their application for review.  Whether or not the applicants face any harm, if they were to return to India, was a matter within the Tribunal’s jurisdiction to determine.  It is not within this Court’s jurisdiction to determine such matters. 

7. For these reasons, I am of the opinion that the application filed in these proceedings raises no arguable case for the relief it seeks.  I propose, therefore, to dismiss the application and order that the first and second applicants pay the Minister’s costs.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  9 September 2015