SZVCB v Minister for Immigration
[2015] FCCA 1172
•8 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVCB & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1172 |
| Catchwords: MIGRATION – Application for judicial review of decision by Refugee Review Tribunal (Tribunal) – whether the Tribunal accorded procedural fairness to the applicants – whether the Tribunal failed to consider the applicants’ claims – whether the Tribunal failed to consider disclosure of information – whether the Tribunal had jurisdiction to review the first decision by the delegate in relation to the second applicant – if the Tribunal did not have jurisdiction, is there any utility in quashing the Tribunal’s decision – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(b), 36(2)(c), 36(2)(aa), 411, 412(1), 424A, 425, 425(1) Part 7, Division 4 |
| SZWAJ v Minister for Immigration [2015] FCCA 164 |
| First Applicant: | SZVCB |
| Second Applicant: | SZVCC |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2585 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 30 April 2015 |
| Delivered at: | Sydney |
| Delivered on: | 8 May 2015 |
REPRESENTATION
| Applicants in person assisted by an interpreter. |
| Counsel for the Respondents: | Mr D Hughes |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application is dismissed.
The applicants pay the first respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2585 of 2014
| SZVCB |
First Applicant
SZVCC
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants, who are mother and daughter, seek judicial review of a decision of the second respondent (Tribunal) affirming the decision of the first respondent (Minister) not to grant Protection visas to the applicants.
Before I consider the application for judicial review, it will be necessary to set out in some detail the claims for protection raised by the applicants, and the Tribunal’s reasons for rejecting the applicants’ claims. As the procedural history in this matter gives rise to a question concerning the jurisdiction of the Tribunal in relation to the second applicant’s application for review, it will also be necessary to set out the delegate’s findings for refusing the applicants Protection visas.
Applicants’ claims for protection
The first and second applicants are citizens of the People’s Republic of China. Before they applied for Protection visas on 29 October 2013 they held a Student Guardian visa and a Student visa respectively.[1]
[1] CB8-59
The first applicant lodged a Protection visa application with her de facto partner but submitted separate claims for protection. The de facto partner is not an applicant to the judicial review application that is before me and, consequently, his claims for protection are not relevant to this application. The second applicant submitted an application for a Protection visa as a member of the same family unit of her mother and her mother’s partner.
The first applicant’s claims for protection are as follows:[2]
a)Her husband in China has physically, mentally and sexually abused her since they got married;
b)She was forced to have intercourse with her husband who wanted a son, and they now have four children. The authorities consider sexual offences in a marriage to be a “domestic matter” and will not get involved;
c)She had to “go into hiding to avoid the ligation imposed by authorities”;
d)She was stalked by her husband when she came home late or visited family and friends, and her husband opposed her taking a job as a masseuse and intimidated and threatened the first applicant if she was to take such a job;
e)She fears being harmed physically, mentally and sexually if she returns to China. She fears being unable to continue work in the massage industry and being a financially independent woman. She is also afraid of being pursued by debt collectors “because of a debt the [first applicant’s husband] accrued around 2009 after the failure of a business he started after she arrived in Australia”.[3]
[2] CB45-47
[3] CB90
On 15 April 2014, a delegate of the Minister refused to grant the first applicant and her partner Protection visas. The delegate made adverse credibility findings against the first applicant and was not satisfied that she met the criteria in s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958 (Cth) (Act).[4] In relation to the second applicant, the delegate found that the second applicant had not lodged a valid Protection visa application because the delegate was not satisfied she met the definition of “dependent” in reg.1.05A of the Migration Regulations 1994 (Cth) (Regulations).[5]
[4] CB89-90; CB91
[5] CB82-85
The delegate made a second decision on 29 April 2014 on the applicants’ Protection visa applications, this time determining that the second applicant had lodged a valid Protection visa application. The delegate found, however, that the second applicant is not a member of the family unit of the first applicant and the first applicant’s partner.[6] The delegate, therefore, refused to “include [the second applicant] as a dependent on the application of the primary applicants”.[7]
[6] CB114
[7] CB123
The delegate did not, in her second decision, refer to her earlier decision; and she did not otherwise explain why she made a second decision. Given the matters I consider at the end of these reasons, however, and the fact that the delegate made the second decision on the basis that the second applicant made a valid application, it is reasonable to infer that the delegate made the second decision because she formed the view she had incorrectly decided the second applicant did not make a valid application for a Protection visa.
On 30 April 2014 the applicants lodged an application for review of the delegate’s first decision made on 15 April 2014.[8] The applicants did not apply for review of the delegate’s second decision.
[8] CB124-126
Tribunal’s reasons for decision
The Tribunal found that the first applicant had “fabricated her claims for the purpose of obtaining” a Protection visa.[9] The Tribunal had serious concerns about the first applicant’s credibility and the veracity of her claims[10] and it formed the view that the first applicant “was prepared to say anything to obtain a Protection visa without any regard for the truth”.[11]
[9] CB178, [37]
[10] CB175, [23]
[11] CB178, [37]
In relation to the first applicant’s evidence, the Tribunal found there to be inconsistencies and considered some claims to be implausible.[12] The inconsistencies the Tribunal noted include:
a)The first applicant claimed in her visa application that she has to go into hiding to avoid tubal ligation but gave evidence at the hearing that she is almost 50 years old and no longer able to have children;[13]
b)The first applicant claimed that she feared physical, mental and sexual abuse by her husband but at the Tribunal hearing gave evidence that she and her husband separated in 2007 when she left China for Australia and they have not had any contact since 2009;[14]
c)The first applicant claimed her husband stalked her when she came home late or visited family and friends, yet he agreed to her and the second applicant travelling to Australia;[15]
d)The first applicant claimed her husband opposed her taking a job as a masseuse, yet at the hearing told the Tribunal that the only reason why she did not work in China was because she needed to stay home and take care of their children;[16]
e)The first applicant claimed she will be unable to be financially independent if she returns to China and her husband continues to oppose her occupation as a masseuse, yet she intends to divorce him.[17]
[12] CB175, [23]
[13] CB175, [24]
[14] CB175, [25]
[15] CB176-177, [28]
[16] CB177, [29]
[17] CB177, [30]
The Tribunal also noted inconsistencies between the first applicant’s claims and the evidence she provided in support of her Student Guardian visa. The Tribunal put these inconsistencies to the first applicant for comment pursuant to s.424AA of the Act:
a)The first applicant claimed that her husband made posters and advertising signs and then invested money in fish farming and coal mining. However, in her application for a Student Guardian visa, the first applicant provided a letter from the husband’s employer which stated that he worked as a manager at a decoration store. The first applicant then claimed this was the same job she was referring to;[18]
b)The first applicant claimed her husband borrowed money from “loan sharks” to invest, and they could not borrow money from a bank because they had no security for a loan and people from villages cannot get bank loans. In her Student Guardian visa application however, the applicant had provided a document from CITIC Industrial Bank regarding her husband’s study loan and a further letter from her agent in China stating that her husband had borrowed 650,000RMB from the bank to support her and the second applicant in Australia. The applicant later claimed her husband’s bank loan had to be repaid and her husband borrowed money from a loan shark to repay that loan.[19]
[18] CB177, [31]-[32]
[19] CB177, [32]-[34]
The Tribunal did not accept any of the first applicant’s claims except for the following: the first applicant went into hiding to avoid forced tubal ligation by the Chinese authorities; and she had an unhappy marriage, was not treated well by her husband and wanted to divorce her husband.[20] The Tribunal was not satisfied the first applicant met the criteria in s.36(2)(a) or s.36(2)(aa) of the Act for the grant of a Protection visa.
[20] CB177, [37]-[40]
In relation to the second applicant, the Tribunal found she was a member of the same family unit as the first applicant because it was satisfied that the second applicant was and is “wholly or substantially reliant on the [first applicant] for psychological support at the time of application and time of decision”.[21] However, because the first applicant did not meet the criteria under s.36(2)(a) or s.36(2)(aa) of the Act it held the second applicant was unable to meet the criteria in s.36(2)(b) or s.36(2)(c) of the Act.
[21] CB182-183, [63]
Grounds of application
The application for judicial review contains one ground:
The decision of the Tribunal:
a) is affected by the procedural unfairness.
b) failed to take into account relevant considerations.
At the hearing before me the applicants, who are not legally represented, made a number of submissions. First, they submitted that the procedure the Tribunal adopted was not fair because it failed to consider the seriousness of the material that was before it. The first applicant submitted that the Tribunal did not consider what happened to her daughter or the domestic violence to which she was subjected. Second, the second applicant submitted that the Tribunal failed to consider disclosure of information. I took this to refer to the inadvertent disclosure of information by the Department of Immigration and Border Protection to which I referred in SZWAJ v Minister for Immigration.[22] I will first consider the grounds stated in the application.
[22] [2015] FCCA 164
There is nothing in the Tribunal’s reasons for decision that indicates the Tribunal did not comply with s.425 or any other provision of Division 4 of Part 7 of the Act, or otherwise did not accord procedural fairness to the applicants. The applicants were invited pursuant to s.425(1) of the Act to appear before the Tribunal to give evidence and make submissions, and the first applicant appeared before the Tribunal in response to that invitation. Further, the Tribunal complied with s.424AA of the Act in relation to the two items of information to which I refer earlier in these reasons.[23]
[23] Transcript of hearing before the Tribunal, pages 39-40. The transcript is annexed to the affidavit of K N Hooper, 06.01.2015.
There is also nothing in the Tribunal’s reasons that suggests the Tribunal failed to consider any aspect of the applicants’ claims. The Tribunal identified the first applicant’s claims but rejected them; and the Tribunal rejected her claims because the Tribunal did not accept the first applicant to be a witness of truth. The matters on which the Tribunal relied for so concluding were matters it was rationally open to the Tribunal to consider were relevant to the assessment of the first applicant’s credibility; and the reasons the Tribunal gave for concluding on the basis of those matters that the first applicant was not a witness of truth were reasons on which it was rationally open to the Tribunal to rely for so concluding.
Turning to the oral submissions made by the first applicant, it is true the Tribunal did not consider what would happen to her daughter. If by that submission the first applicant intended to submit the Tribunal did not consider the second applicant, the Tribunal’s failure would not amount to any error because the second applicant did not make a claim for a protection visa in her own right. She applied for a protection visa as a dependent of the first applicant. If, on the other hand, the first applicant intended by her submission to refer to any other daughters she has, the Tribunal made no error by not considering the situation of those daughters. That is so because there was nothing before the Tribunal that indicated the applicants relied on the present or future situation of her other daughters. During the hearing the first applicant was questioned about her daughters, but the first applicant did not say anything that could reasonably be considered as having raised a claim based on the situation of any of her daughters.
As to the second applicant’s submissions in relation to the disclosure of data, no claim based on the disclosure of information was made to the Tribunal. For that reason alone the Tribunal cannot be said to have made any jurisdictional error by not considering a claim based on the disclosure of information concerning the second applicant.
Jurisdiction of Tribunal
The Minister submits the delegate erred because it is not a requirement that an applicant meet the definition of a “dependent” in reg.1.05A of the Regulations in order to lodge a valid Protection visa application. I agree. That raises the question whether the Tribunal had jurisdiction to deal with the application for review which was made in relation to the first of the delegate’s two decisions. That question arises because a decision that an application for a protection visa is not a valid application is not an “RRT-reviewable decision” within the meaning of s.411 of the Act.
It is clear that the Tribunal did not have jurisdiction to review the delegate’s decision that the second applicant did not make a valid application for a visa. Did the Tribunal nevertheless have jurisdiction to determine the delegate’s decision in relation to the first applicant’s claims? Counsel for the Minister submitted it did.
Counsel submitted that the first and second applicants made separate applications for a protection visa and the delegate made two decisions on 15 April 2014, one in response to each of those applications. The application for review the first and second applicants made to the Tribunal related to those two decisions. The Tribunal reviewed each of those decisions which means that it, too, made two decisions, one in relation to each of the applications for review the first and second applicants made. I accept counsel’s submissions.
The consequence is that the Tribunal had no jurisdiction to review the decision the delegate made on 15 April 2014 in relation to the second applicant, but it did have jurisdiction to review the delegate’s decision made on that day in relation to the first applicant. That, in turn, means that the Tribunal’s decision in relation to the second applicant is liable to be quashed. I do not, however, propose to make an order quashing the Tribunal’s decision, because there would be no utility in doing so. The second applicant would be unable to apply for a review of the delegate’s decision made on 29 April 2014 because the time for making an application for review prescribed by s.412(1) of the Act has expired, and there is no provision under the Act for that time to be extended.
Conclusions and disposition
The Tribunal made no jurisdictional error in relation to its review of the first applicant’s application for review of the decision of the delegate of the Minister made on 15 April 2014. The Tribunal made a jurisdictional error in relation to its review of the second applicant’s application for review of the delegate’s decision made on 15 April 2014 because the delegate’s decision was not an RRT-reviewable decision within the meaning of s.411 of the Act. Although the Tribunal’s decision in relation to the second applicant’s application is liable to be quashed, I will not, in the exercise of my discretion, quash that decision because there would be no utility in doing so.
I propose, therefore, to order that the application be dismissed, and that the applicants pay the Minister’s costs.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 8 May 2015
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