SZVWO v Minister for Immigration & Border Protection

[2015] FCCA 1729

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVWO & ANOR v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 1729

Catchwords:
MIGRATION – Refugee Review Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Migration Act 1958 (Cth)
Federal Circuit Court Rules 2001 (Cth) rr.44.12, 44.13

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

First Applicant: SZVWO

Second Applicant: SZVWP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3561 of 2014

Judgment of: Judge Emmett

Hearing date: 23 June 2015

Date of Last Submission: 23 June 2015

Delivered at: Sydney

Delivered on: 23 June 2015

REPRESENTATION

The Applicants appeared in person with the assistance of an Indonesian interpreter.

Solicitors for the Respondents: Ms Sophie Lloyd
(Minter Ellison)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3561 of 2014

SZVWO

First Applicant

SZVWP

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 19 December 2014, the first applicant filed an application seeking judicial review of a decision of the Refugee Review Tribunal dated 27 November 2014 and handed down on 28 November 2014 (“the RRT”).

2. The first and second named applicants are a married couple. The second applicant was included as a member of the first applicant’s family unit. As such, the second applicant’s claims are wholly dependent on those of the first applicant (“the Applicant”)

3. On 19 March 2015, the Applicant attended a directions hearing before a Registrar of the Court. The Applicant confirmed she wished to continue with her application for judicial review of the RRT’s decision.

4. The Applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit by 16 June 2015. The Applicant was also directed to file and serve written submissions in support of the grounds of her application by 16 June 2015.

5. At the directions hearing, the Applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in her own language.

6. The matter was listed for today for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), a copy of which was also given to the Applicant, together with a copy of the costs schedule.

7. Rule 44.12 of the Rules provides as follows:

   “(1)  At a hearing of an application for an order to show cause, the Court may:

   (a)  if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b)  if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c)  without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2)  To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

8. Relevantly, r.44.13 provides:

   “(1)  At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

9. The Applicant was unrepresented before the Court this morning, although had the assistance of an Indonesian interpreter.

10. The Applicant confirmed to the Court this morning that she had not filed any further documents, either in accordance with my directions or otherwise. 

11. The Applicant confirmed that she relied on the grounds contained in her initiating application for judicial review, filed on 19 December 2014. Those grounds are as follows:

    “1. The Refugee Review Tribunal committed jurisdictional error by failing to deal with an integer of the applicant’s claims.

    2. In making the decision, the Tribunal applied the wrong test.

    3. The Tribunal failed to consider my claim.”

12. In support of the grounds of her application, the Applicant said essentially that her case was true and that she did not want to return to Indonesia because her parents do not approve of her marriage. None of the grounds were supported by oral or written particulars or any relevant submission.

13. The first respondent, in written submissions, summarised the background of the Applicants’ claims and the RRT’s decision, as follows:

    “B     FACTUAL BACKGROUND

    The applicants are citizens of Indonesia who arrived in Australia on 18 April 2010 as holders of student visas. They were married in Australia on 5 June 2011. The first applicant returned to Indonesia briefly on two occasions. On 2 August 2013 the first applicant lodged an application for a protection visa.[1] The second applicant was included on the application as a member of the first applicant's family unit.[2]

    The first applicant claimed to fear harm in Indonesia from her father, who did not approve of her relationship with the second applicant because the second applicant's grandfather was a Muslim Indonesian (the first applicant being an ethnic Chinese of the Catholic faith).[3] She claimed that her father had threatened to kill her if she returned to Indonesia and did not divorce her husband.

    The first applicant attended a Departmental interview on 21 January 2013. On 5 February 2014 a delegate of the Minister for Immigration and Border Protection refused to grant the applicants protection visas.[4] The delegate was not satisfied that the first applicant genuinely feared harm in Indonesia.

    The applicants sought review of the delegate's decision before the Tribunal by application dated 12 March 2014.[5] The applicants attended a hearing before the Tribunal on 18 September 2014.[6] On 27 November 2014 the Tribunal affirmed the decision not to grant the applicants protection visas.[7]

    [1] Court Book (CB) 1

    [2] CB 16

    [3] CB 37-38

    [4] CB 90-102

    [5] CB 104-109

    [6] CB 130-132

    [7] CB 149-162

    The Tribunal's decision

    The Tribunal accepted that the first applicant is an ethnic Chinese Christian, that the applicants had married in Australia, and that the marriage was not entered into for the sole purpose of strengthening their refugee claims.[8] The Tribunal also accepted that the first applicant's father disapproved of her relationship with the second applicant, and now disapproves of their marriage.

    However, because their home region has a high mixed Chinese/Indonesian population, and the second applicant's Identification Certificate states his religion to be Buddhist, the Tribunal had reservations that the first applicant's father's disapproval was because the second applicant's grandfather was Muslim. The Tribunal also did not accept that the first applicant's father continues to suffer from trauma from the 1998 riots in Jakarta (which might explain his anti-Muslim opinions).[9]

    Even accepting that the father did not approve of the marriage because the second applicant had a Muslim grandfather, the Tribunal was not satisfied that the first applicant suffered serious harm in the past on this basis (as the past instances of claimed harm did not rise to the level of 'serious harm').[10] The Tribunal did not accept that there is a real chance that the first applicant would suffer harm at the hands of her father were she to return to Indonesia.

    The Tribunal considered the availability of state protection in Indonesia and found that the Indonesian government was willing and able to provide adequate protection to women in the first applicant's situation who feared harm from their fathers.[11]

    Further, the Tribunal was satisfied that the first applicant's fear of harm was localised, and there was no real chance that the first applicant's father would pursue her all over Indonesia. The Tribunal found that the applicants could practically and reasonably relocate to another part of Indonesia, such as Jakarta.[12]

    The Tribunal found that the first applicant did not satisfy either the refugee criterion or the complementary protection criterion, and noted that the second applicant did not advance his own claims for protection.”

    [8] CB 152-153 at [24]-[25]

    [9] CB 153 at [26]

    [10] CB 153 at [27]

    [11] CB 153 at [30]

    [12] CB 154 at [34]

14. The RRT’s decision record makes clear that the RRT explored the Applicant’s claims with her at a hearing and put to her various concerns that it had about her evidence and noted the Applicant’s responses.

15. Ultimately, the RRT concluded that the Applicant did not have a genuine fear of being seriously harmed for a Convention related reason at the time she left Indonesia and found that the Applicant left Indonesia in order to study in Australia.

16. The RRT was not satisfied that any past harm that the Applicant may have suffered in Indonesia at the hands of her father amounts to serious harm, and for that reason was not satisfied that the Applicant met the refugee criteria under s.36(2)(a) or s.(2)(aa) of the Migration Act 1958 (Cth) (“the Act”). The RRT was further satisfied that state protection was available to the Applicant in Indonesia and that the applicants could practically and reasonably relocate to another part of Indonesia.

17. There is nothing to suggest that the RRT’s findings and conclusions were not open to it on the material and evidence before it and for the reasons it gave. The Applicant has not identified, nor is there anything in the RRT’s decision record, to suggest that the RRT did not consider any integer of the Applicant’s claims. The Applicant has not identified either the test that the RRT applied that she says was wrong or what the correct test should have been.

18. The RRT’s decision record makes clear that the RRT understood the nature of the Applicant’s claims and evidence. The RRT then made findings based on the evidence and material before it. Those findings of fact were open to the RRT on the evidence and material before it and for the reasons it gave. A fair reading of the RRT’s decision record makes clear that the RRT reached conclusions based on the findings made by it and to which it applied the correct law. The RRT identified with specificity the country information to which it had regard.

19. To the extent that the affidavit filed by the Applicant on 19 December 2014 in support of her application for judicial review refers to an allegation that the tribunal failed to consider her application according to s.424A of the Act, no such complaint is made out on the face of the RRT’s decision record. There was no information that formed part of the RRT’s reasons for affirming the decision under review that enlivened any obligation on the RRT to give that information to the Applicant for comment pursuant to s.424A of the Act.

20. While I make no final decision as to whether or not the RRT’s decision is affected by jurisdictional error, the Applicant has not identified any error on the part of the RRT that is capable of establishing jurisdictional error and none is apparent on the face of the decision record. The RRT referred to the relevant law in affirming the decision under review.

21. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court, commenced by way of application on 19 December 2014, should be dismissed pursuant to r.44.12(1)(a) of the Rules with costs.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date: 7 July 2015