SZVSQ v Minister for Immigration

[2017] FCCA 1286

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVSQ v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1286

Catchwords:
MIGRATION – Application for review of former Refugee Review Tribunal decision – show cause hearing – factors considered – no arguable case raised by the grounds of the application – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 65, 424A, 425, 476

Federal Circuit Court Rules 2001 (Cth), rr.1.06, 44.12, 44.13

Cases cited:

WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598
Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708
Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62
Agar v Hyde [2000] HCA 41; (2001) 201 CLR 552; (2001) 173 ALR 665; (2001) 74 ALJR 1219
Xie v The Immigration Department [1999] FCA 365
Nguyen v Minister for Immigration and Citizenship [2000] FCA 1265; (2000) 101 FCR 20
Bodenstein v Minister for Immigration and Citizenship [2009] FCA 50
SZQRU v Minister for Immigration v Minister for Immigration and Citizenship [2012] FCA 1234
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592

Applicant: SZVSQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3290 of 2014

Judgment of: Judge Nicholls

Hearing date: 3 May 2017

Date of Last Submission: 3 May 2017

Delivered at: Sydney

Delivered on: 3 May 2017

REPRESENTATION

Applicant: In person

Solicitors for the Respondent: Mr Flick of DLA Piper Australia

ORDERS

1. The application made on 24 November 2014 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs set in the amount of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3290 of 2014

SZVSQ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. I have before me today an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 24 November 2014, seeking review of the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 27 October 2014, which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection (Class XA) visa to the applicant.

2. In evidence before the Court today is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”). Also in evidence is the affidavit of Joshua Chandra, Pastor, affirmed 23 March 2015, which annexes what is said to be a transcript (“T”) of the applicant’s hearing before the Tribunal. 

3. The parties appeared before a Registrar of the Court on two occasions prior to this hearing today. The Registrar made orders for the filing by the applicant of any amended application, and written submissions by both parties. The applicant has not filed any amended application or written submissions.  The Minister has filed written submissions on 26 April 2017. 

4. I note that relevant background to this case is set out at [3] – [8] of the Minister’s written submissions.  Having regard to the evidence before the Court, I am satisfied that what the Minister has set out as background is a fair summary of relevant events.  For the sake of convenience, I adopt those paragraphs of the Minister’s written submissions for the purposes of this judgment as follows:

   “[3] The applicant is a male citizen of Indonesia born on 20 June 1958. He arrived in Australia on 15 March 2010 as the holder of a Tourist visa.

   [4] The applicant applied for a Protection (Class XA) visa on 14 August 2013. His claims were set out in an attachment to the application form.

   [4.1] The applicant claimed to fear harm in Indonesia by local Muslim Indonesians for reason that he was of Chinese ethnicity, a Catholic, he was unable to get a job, and that he had a sick Australian wife who would be unable to get the treatment she required in Indonesia.

   [5] The application was refused by a delegate of the first respondent on 6 February 2014.

   [5.1] The delegate accepted that the applicant was an ethnic Chinese Indonesian citizen, was a practising Roman Catholic, had suffered no instances of serious harm in Indonesia, was not denied employment prior to coming to Australia, and was verbally abused on a few occasions due to his race. However, the delegate found that the applicant did not face a real chance of persecution because of his religion or race should he be returned to Indonesia such that the applicant’s fear of persecution was well-founded. The delegate further found that there was not a real chance that the applicant would suffer significant harm.

   [6] The applicant applied to the AAT for review of the delegate’s decision on 26 February 2014.

   [7] The applicant gave oral evidence before the AAT on 15 October 2014. At hearing, the applicant told the AAT that he was not relying on his claim that he could not afford to pay for his wife’s medical needs if they returned to Indonesia or that she relied on his care.

   [8] The AAT made its decision on 27 October 2014.”

   [Footnotes omitted.][Errors in the original.]

5. In its decision record, the Tribunal summarised the issue before it as follows ([8] at CB 94):

   “The issue in this case is whether the applicant’s claims to fear harm if he returns to Indonesia because he is Chinese, Christian, will be unable to get a job, and has a sick Australian wife who will be unable to get the treatment she needs in Indonesia singly or cumulatively meet the protection criteria.  For the following reasons, the tribunal has concluded that the decision under review should be affirmed.” 

6. There is nothing in the evidence before the Court to indicate that the Tribunal overlooked any claim either expressly made by the applicant, or clearly arising by the circumstances presented (WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593, Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1).

7. The Tribunal accepted that the applicant was an Indonesian national of Chinese ethnicity and Christian religion.  It also accepted that there had been violence in Indonesia against persons of Chinese ethnicity in 1965 and 1998, as the applicant had claimed.  The Tribunal accepted that the applicant’s father’s business had been taken by the military in 1965.  However, the Tribunal did not accept that the applicant had suffered serious or significant harm since that time for reason of his Chinese ethnicity, Christian religion or a combination of both. The Tribunal found, in all the circumstances, that the applicant would not suffer serious or significant harm if he were to return to Indonesia. 

8. It is clear from both the transcript of the Tribunal hearing, and from the Tribunal’s references to the hearing in its decision record, that the applicant gave evidence to the Tribunal about his life in Australia since he arrived on 15 March 2010.  The applicant remained in Australia without authority for three years since his visitor [Tourist] visa had expired.  His claim was that he had come to Australia with a woman known as, or described as, “Maria” whose daughter was studying in Indonesia.  He married another woman, who was an Australian citizen, but appears to have remained in some contact with, or in a relationship with, “Maria” up until the time of the Tribunal’s decision. Importantly for current purposes, it is clear that none of these claims gave rise to any claim to fear either serious or significant harm if the applicant were to return to Indonesia. 

9. The applicant also claimed before the Tribunal that he would be unable to obtain employment if he returned to Indonesia and this was said to be because of his age, lack of education and ethnicity.  The Tribunal found these claims to be exaggerated. 

10. The Tribunal found that, on the evidence before it, the applicant wanted to stay in Australia where he and “Maria” have been able to work and earn money to fund her daughter’s education.  The Tribunal also found that the applicant, and for that matter, “Maria”, wished to continue to stay in Australia, and that “Maria” wanted her daughter to come to Australia to work.  The Tribunal noted that the claim was that prospects in Australia were better than in Indonesia. 

11. The Tribunal made various findings as against each of the applicant’s claims. It did not accept that the applicant would not be able to get a job in Indonesia because of his age, lack of education or ethnicity or any combination of those reasons.  The Tribunal found that there was no claim that any of the circumstances involving “Maria” were relevant to the applicant’s claims to fear harm on return to Indonesia. 

12. The Tribunal took note of the evidence that the applicant’s employment history was as a salesman, usually employed by someone else, including “Maria”.  The Tribunal did not accept the applicant’s claims that he could not get a job after “Maria’s” business collapsed.  The Tribunal found that he had worked for many years as a salesman and that his Chinese ethnicity had not prevented him getting a job.  In essence, the Tribunal’s reasoning, and its conclusion, was that the applicant believed that his financial and life prospects were better in Australia, and that was not a basis on which to grant protection to the applicant. 

13. I should note for the applicant’s benefit that the Tribunal is required in assessing his claims to protection, to apply the relevant law. Under the relevant law, a protection visa cannot be granted unless the Tribunal, or any other relevant decision-maker, can be satisfied that the applicant’s circumstances satisfy either the definition of “refugee” as set out in the Refugee Convention and further defined by the Act, or in circumstances where the applicant would suffer significant harm as that is defined in the Act, and as derived from a number of international treaties to which Australia is a signatory (see ss.36(2)(a), 36(2)(aa) and 65 of the Act).

14. It was not open to the Tribunal to let him remain in Australia simply because he believed that life may be financially, and in other ways, better for him in Australia than in Indonesia. The only way that a protection visa could be granted to the applicant under the relevant law, was in circumstances where the Tribunal could be satisfied that the applicant met either the definition of “serious harm” or “significant harm” (see ss.36(2)(a), 36(2)(aa) and 65 of the Act). It is clear for the reasons the Tribunal gave, that it was unable to reach the requisite level of satisfaction that the applicant’s circumstances met either of those two requirements.

15. The grounds of the application before the Court are as follows: 

    “1. The Refugee Review Tribunal wrongly affirmed the decision. 

    2.  The Tribunal is aware that if I go back to Indonesia I will not be able to work.  I will suffer serious harm, as not able to support myself.  The Tribunal made a serious mistake by denying me protection visa.” 

16. As mentioned earlier, the applicant first appeared in person before a Registrar of the Court in December of 2014.  He was given the opportunity to file any amended application giving particulars of any legal grounds on which he wished to rely.

17. When the applicant again appeared before a Registrar of the Court in November of 2015, he had not filed any amended application. In light of the stated grounds, and in the absence of any amendment, the Registrar set the matter down for a show cause hearing before me today pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”).

18. Therefore, the issue before the Court today is whether the grounds of the application raise a legally arguable case for the relief that the applicant seeks. 

19. The application itself seeks an order that the decision of the Tribunal be quashed, and further, that his case be returned to the Tribunal to determine the applicant’s application according to law.  In those circumstances, if the Court cannot be satisfied that an arguable case is raised against the Minister, the application will be dismissed. 

20. It is the case that the Court’s power to dismiss such an application should be exercised with great caution.  Given the summary nature of any such dismissal, the application should only be struck out where there is no real question to be tried, where the claims are clearly untenable and cannot succeed (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 especially at [8] – [9], Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 at [3]– [6] and Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 at [1]), the claims are groundless (Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62), where there is a high degree of certainty about the outcome (Agar v Hyde [2000] HCA 41; (2001) 201 CLR 552; (2001) 173 ALR 665; (2001) 74 ALJR 1219) or it is a hopeless case that would fail if it were to go to a final hearing (Xie v The Immigration Department [1999] FCA 365).

21. Before the Court today, the applicant appeared in person.  He was assisted by an interpreter in the relevant language. The Minister was represented by a solicitor.

1. At the beginning of the hearing, I sought to explain to the applicant the relevant process and the nature of the hearing before the Court today.  I sought to explain to the applicant that the issue for the Court was whether there was any legally arguable case raised by the grounds of his application.  The applicant, understandably, submitted that he was not in a position to make any legal argument because he was not a lawyer.

2. In that light, I note two things.  First, the applicant has had a more than reasonable opportunity to seek to obtain some legal advice, and in any event, it is well established that, in matters of this type, there is no right to any legal representation (Nguyen v Minister for Immigration and Citizenship [2000] FCA 1265; (2000) 101 FCR 20, Bodenstein v Minister for Immigration and Citizenship [2009] FCA 50 and SZQRU v Minister for Immigration v Minister for Immigration and Citizenship [2012] FCA 1234).

3. Second, in spite of the Court seeking to explain to the applicant the difference in the role and the powers of the Court and the Tribunal, the applicant proceeded to make submissions which, in effect, were a plea to the Court to intervene and grant him a protection visa. With respect to the applicant, that is not a proper basis on which to support an application which would lead the Court to granting the relief that he seeks.

4. The applicant’s oral expression of the relief that he seeks, that is, a protection visa, merely seeks to emphasise the lack of legal merit in the grounds of the application that he has put before the Court.  The grounds of that application simply take issue with the Tribunal’s finding in respect of his claim that he would not be able to work in Indonesia.  This finding made by the Tribunal, and the antecedent findings that informed it were, on the evidence, all reasonably open to the Tribunal to make on what was before it.

5. The Tribunal gave cogent reasons, which arose from the applicant’s own evidence, as to why the requisite level of satisfaction could not be reached, such that the visa should not be granted to the applicant.  The applicant’s disagreement with the Tribunal’s finding in this regard does not, of itself, provide a basis to indicate jurisdictional error on the part of the Tribunal.  In the circumstances, I can only agree with the Minister’s submission that the grounds seek impermissible merits review. Therefore no arguable case is raised by the grounds of the application.

6. It is the case that relevant to a show cause hearing, r.44.13 of the FCC Rules provides that the applicant is confined to the relief sought, and the grounds stated in the application. Nonetheless, I did consider whether there was anything in the evidence before the Court that would argue for, or support, the waiving of that rule pursuant to r.1.06 of the FCC Rules. In this regard, I cannot see anything in the evidence before the Court such as to warrant the waiving of r.44.13 of the FCC Rules.

7. I note in particular the Minister’s submissions, that the applicant was invited to a hearing pursuant to s.425 of the Act. On the evidence before the Court, that invitation complied with all of the relevant statutory and regulatory requirements. On the relevant evidence before the Court of what occurred at the hearing, that is, the Tribunal’s references to the hearing as contained in its decision record, and the evidence that the applicant himself has provided to the Court by way of a transcript of the Tribunal hearing, I am satisfied that the hearing was a meaningful opportunity for the applicant to give his evidence and arguments in relation to the issues in the review (SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592).

8. The Minister also submits that the obligations in s.424A of the Act were not enlivened in the circumstances of this case. The evidence given by the applicant to the Tribunal, for the purposes of the review, is not caught by s.424A(1) of the Act because of the various exemptions set out in s.424A(3) of the Act.

9. On the evidence before the Court, the Tribunal dealt with all of the applicant’s claims. The applicant was given the opportunity to explain his claims and to give his evidence. Any complaint about the Tribunal’s inability to reach the requisite level of satisfaction as mandated by s.65 of the Act cannot be said to raise any legally arguable case. For this reason, it is appropriate that the application to the Court be dismissed today pursuant to r.44.12(1)(a) of the FCC Rules. I will make that order.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 15 June 2017