SZUYR v Minister for Immigration

[2015] FCCA 1537

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUYR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1537

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Applicant: SZUYR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2376 of 2014

Judgment of: Judge Driver

Hearing date: 4 June 2015

Delivered at: Sydney

Delivered on: 4 June 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr K Eskerie of Sparke Helmore

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2376 of 2014

SZUYR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (Tribunal).  The decision was made on 21 July 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from China and had made claims of a fear of harm at the hands of her former husband.  She applied for a protection visa on 27 June 2013, and the Minister’s delegate refused the application on 12 December 2013.  The applicant sought review before the Tribunal and appeared at a hearing to give evidence and present arguments on 10 July 2014.  She was assisted at the Tribunal hearing with an interpreter in the Mandarin language.

2. As recorded by the Tribunal, in summary, the applicant’s claims were that she left China because her life was in danger from her ex‑husband.  She was threatened after they got divorced.  She cannot continue staying in China because he will kill her.  She called police, but they did not help her.  Her ex‑husband’s family and friends have a special relationship with the police.  The police will not arrest her ex‑husband for hurting her.  Calling the police will only make her ex‑husband angrier.

3. At the hearing, the Tribunal expressed concerns about the plausibility of the applicant’s claims.  The Tribunal accepted that the applicant was married in 1984 and had a son in 1985.  She was divorced in 1998.  She made all decisions in respect of her son.  She supported her son and herself financially from when he was very young.  She and her son lived with her parents from when she was divorced until she purchased a property in 2003.  The applicant lived in that property from 2003 until she left for Australia in May 2013.  She still retains that property, but it is vacant.  Her son lived with her until 2010, when he moved to another city near Beijing.  Her husband has known where the applicant lived after 2003.  From 2004 until about March 2013, the applicant worked casually as a babysitter and cleaner. 

4. In 2012 or 2013, the applicant spoke to someone who told her about getting protection in Australia because of domestic violence in China.  She told that person that she had suffered domestic violence at the hands of her husband.  She travelled to South Korea on a tour for the purpose of establishing a travel history to assist her to obtain a visa to visit Australia.  From March to May 2013, she organised her Australian tourist visa.  The applicant arrived in Australia on 18 May 2013 in a tour group.  She left the tour group on 21 or 22 May 2013.  The group was staying in a hotel.  She caught a taxi to Campsie.  Before leaving China, a friend had organised for her to go to a person in Campsie, and who she rang 24 hours before leaving the tour. 

5. The Tribunal found that the applicant’s claims in her written application were brief and vague.  She stated then that her detailed claims would be provided later.  They were not provided to the Minister’s Department.  One further document was provided to the Tribunal, but in substance, the applicant expanded upon her claims at the Tribunal hearing. 

6. The Tribunal made comprehensive findings against the applicant’s credibility.  Central to the Tribunal’s concern was the fact that it appeared that the applicant was embroidering her claims substantially at the hearing.  She told the Tribunal that the last time her husband harassed her was in 2008.  She said it was also the most serious incident of harassment, leaving her with a physical scar.  She reported the incident to the police and claimed that they did nothing.  There had been no incident since 2008.  The Tribunal pointed out that the 2008 incident was not mentioned in her written statement. 

7. The Tribunal found that the applicant’s evidence about incidents that she then claimed occurred after the 2008 incident were invented after she learned that the Tribunal considered that her husband was no longer a threat to her.  The Tribunal did not accept her evidence about incidents after 2008.  Indeed, the Tribunal did not accept that the applicant’s husband had posed a danger to her since her divorce.  The Tribunal took into account that she continued to reside in the same place from 2003 until she left for Australia.  This was not consistent with her claim that she was in fear of her life.

8. The Tribunal concluded that the applicant’s claim for protection in Australia because of a fear of her ex‑husband was not credible.  While accepting that she and her husband divorced 16 years before the Tribunal decision because of domestic violence, it did not accept that the applicant’s ex‑husband had harmed her in any way or been a threat to her since around the time of her divorce.  It did not accept that her ex‑husband would kill her or otherwise harm her in the future if she returned to China.

The present proceedings

1. These proceedings began with a show cause application filed on 25 August 2014.  The applicant continues to rely upon that application.  There are three grounds in the application:

   1. The Refugee Review Tribunal failed to consider the country information.

   2. The decision made by the Tribunal involved an error of law.

   3. That the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.

2. The application is supported by a short affidavit which I received, in part, as a submission. 

3. I have before me as evidence the court book filed on 28 October 2014. 

4. Both the applicant and the Minister made oral submissions at today’s hearing.

5. The Minister submits, and I accept, that the grounds in the application do not point to any arguable case of jurisdictional error.  The first ground refers to country information, but no country information had a bearing on the outcome before the Tribunal.  The decision turned on the Tribunal’s adverse credibility conclusions.  The remaining grounds are broad statements of principle which go nowhere in the absence of particulars. 

6. I invited oral submissions from the applicant.  Her concern is that she was not believed by the Tribunal.  She asserts that she is always truthful and that everything she told the Tribunal was true.  She proceeded to tell me a further story.  She told me that her husband had assaulted a senior police officer and had been arrested, tried, convicted and imprisoned in China.  She told me that he had escaped from prison and was on the run.  She told me that he was unemployed and desperate for money. 

7. There is no record of any such claim having been made before the Tribunal.  The applicant asserts that she made the claim orally at the Tribunal hearing.  I do not accept that.  There is no evidence before me of what occurred at the Tribunal hearing other than the record of the Tribunal’s decision.  Her claim made to me completely contradicts her claim made to the Tribunal that her husband had a special relationship with the police which meant that there was no point in making any complaint. 

8. In my opinion, the story told to me this afternoon by the applicant has no more veracity than the story told by the applicant to the Tribunal about alleged incidents following her divorce from her husband. 

9. I find that the applicant has failed to establish any arguable case of jurisdictional error by the Tribunal. I will, therefore, order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

10. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale as it currently applies.  The applicant stated that it was useless to say anything as her application had been dismissed.  I note that the show cause application was filed approximately two months before the current scale came into operation.  However, the first court date was on 1 October 2014, shortly before the commencement of the new scale.  For all practical purposes, the work undertaken by the Minister was undertaken at a time when the current scale was in operation.  I verified with the Minister’s solicitor that the Minister’s costs exceed the scale amount. 

11. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

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

Associate: 

Date:  9 June 2015