SZVWX v Minister for Immigration & Border Protection

[2015] FCCA 1728

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVWX v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 1728

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), s.424A
Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13

Cases cited: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 Abebe v Commonwealth of Australia (1999) 197 CLR 510 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51

Applicant:

SZVWX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3571 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 applicant appeared in person with the assistance of an interpreter

Solicitor for the Respondents: Mr Rohan White
(Mills Oakley)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3571 of 2014

SZVWX

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 applicant filed an application seeking judicial review of a decision of the Refugee Review Tribunal (“the RRT”), dated 25 November 2014 and handed down on 26 November 2014.

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

3. 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 further directed to file and serve written submissions in support of the grounds of her application by 16 June 2015.

4. The matter was listed for today for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), on the basis that the application did not disclose an arguable case for the relief sought. A copy of that Rule was given to the applicant, together with a copy of the costs schedule of the Court.

5. 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.”

6. 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.”

7. 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.

8. I accept as accurate the written submissions of the first respondent, which summarise the background of the applicant’s claims and the RRT’s decision, as follows:

   “Background and the applicant’s claims

   The applicant is a national of Bangladesh who arrived in Australia on 13 April 2012 on a Subclass 457 dependent visa: CB 32, 34. She lodged an application for a Protection (Class XA) visa with the then Department of Immigration and Citizenship (the Department) on 11 November 2013: CB 1-26. The visa application was accompanied by a written statement in which the applicant outlined her claims to fear harm in Bangladesh: CB 27-29.

   In summary, the applicant claimed that for eight months she conducted a relationship over Skype and the telephone with a Bangladeshi man who lived in Sydney. The couple never physically met until their wedding day in Bangladesh on 21 April 2011. The wedding was kept secret from their families. The applicant claimed that when her father found out about the marriage he was angry and did not speak to her for a week. She said her parents had already “arranged” a marriage for her, which she had known about since 2010.

   The applicant travelled to Australia to be with her husband on 13 April 2012. After her arrival she discovered he had changed. She claimed he drank alcohol and took drugs even though he was a Muslim. He also allegedly bullied and blamed her for not giving him enough money for bringing her to Australia, harassed, beat her and caused her mental anguish.

   On 10 February 2013, the applicant returned to Bangladesh on the instructions of her husband. He later told her that he wanted a divorce. The applicant’s parents-in-law threatened her and her sisters with harm if the applicant did not divorce their son. The applicant claimed her husband told her that if she paid him “a handsome amount” he would include her in his permanent residency application and she gave him cash for this purpose: CB 28. On 1 October 2013, the applicant returned to Australia. She believed her husband had withdrawn all her money from her bank account and lodged a complaint with her bank and the police. Her husband threatened to kill her or to exact revenge on her family if she did not withdraw her allegations. The applicant claimed that she could not return to Bangladesh because her family and her husband do not support her and her parents-in-law intended her harm. The applicant also claimed that her father was shamed by her conduct and disinherited her.

   In support of her claims, the applicant provided the Department with copies of pages from her passport (CB 30-35), a money exchange certificate (CB 36), pages from her husband’s passport (CB 37-40) and a contact card from Campsie police station: CB 41.

   The delegate

   On 28 March 2014, the applicant was invited to attend an interview before a delegate of the first respondent scheduled for 28 April 2014 (CB 49-52), but she failed to attend: CB 60.2.

   On 23 May 2014, a delegate made a decision refusing to grant the applicant a Protection visa: CB 57-69. Given her failure to attend her interview, the delegate was unable to be satisfied of the applicant’s claims on the basis of the limited available information or that she faced a real chance of serious or significant harm in Bangladesh: CB 65-66, 68-69.

   The Tribunal’s proceedings and decision

   On 23 June 2014, the applicant lodged with the Tribunal an application for review of the delegate’s decision: CB 70-75. She included with her application for review, a copy of the delegate’s decision and notification letter (CB 75)[1] and a purported affidavit from her father documenting that he had disinherited her: CB 76-77.

   [1] Item 12 of the court book but reproduced at item 10 (CB 57-69)

   By a letter dated 2 October 2014, the Tribunal invited the applicant to attend a hearing on 31 October 2014: CB 80-81. The applicant accepted the invitation (CB 82-83) and attended the scheduled hearing: CB 84-86. At the hearing, the applicant gave evidence amplifying her written claims: CB 108, pars 7, 8-14.

   The Tribunal questioned the applicant as to why the wedding was kept a secret, which the applicant could not explain. The applicant also made a new claim for the first time at the hearing that her parents had “arranged” a marriage for her, which she had known about since 2010. When asked if this had caused upset, she claimed her father had told her that her prospective father-in-law had said there would be no problems: CB 108, par 9. The Tribunal also questioned the applicant about why she returned to Australia when her husband had beaten her several times, stolen her money, cancelled her visa and wanted a divorce: CB 109, par 13.

   After the hearing on 6 and 12 November 2014, the applicant provided further documents in support of her claims, which the Tribunal considered in making its decision: CB 109-110, pars 16-19.

   Despite accepting aspects of the applicant’s claims relating to her family, education and travel to Australia (CB 111, par 24), the Tribunal found the applicant to be “an unreliable witness” who gave “non-responsive and unpersuasive evidence”. It did not accept that her explanation for returning to her husband in Australia was “rational or believable” or that her arranged marriage could be so easily disregarded and her failure to commit to it overlooked: CB 110-111, par 23.

   The Tribunal did not accept that the applicant was married as she had claimed. It had “deep reservations about her evidence” because of “the curious way” that she conducted her romance namely, “entirely electronically or telephonically”, she did not meet her husband until her actual wedding day, could not explain why they both kept the wedding secret from their families and she failed to produce the marriage certificate that she claimed she had: CB 111, par 25. It also noted that Bangladeshi law required marriages to be registered and that affidavits of marriages were insufficient to have a marriage certificate issued: CB 111, par 26.

   The Tribunal placed no weight on the photographs that the applicant provided to corroborate her claimed civil marriage because they were not of the wedding and appeared to be of the reception held afterwards. In addition, the Tribunal found that the claimed reception “sits oddly” with her claims of disinheritance by her father: CB 111, par 28. Nor did the Tribunal accept that the applicant was beaten by her claimed husband given the “complete absence of any corroborative material”. It gave no weight to the note from the NSW police dated 23 October 2013 (CB 41, 93-94) as corroborating physical abuse but accepted that it might have related to the alleged theft of funds from her account: CB 111, par 29.

   Nor did the Tribunal accept “as reasonable or realistic” the claimed reaction of the parents of the man with whom she was the subject of an arranged marriage: CB 111, par 30. It also did not accept that the applicant’s father had disinherited her given that he participated in the reception and permitted the applicant to live with him and her mother when she returned to Bangladesh: CB 108-109, par 11, CB 112, pars 31.

   The Tribunal placed particular importance on the applicant’s failure to state that she feared persecution on return to Bangladesh. Whilst it noted that she referred “to a generalised fear of her parents-in-law”, the Tribunal found this was not stated in terms of the type of harm in s 91R of the Act and that the applicant “seemed more concerned about the lack of support received from her own family”. The Tribunal was not satisfied that the applicant feared harm in Bangladesh for a Convention reason: CB 112, par 32. This accords with the Tribunal’s summary of the applicant’s oral evidence about her fears in Bangladesh: CB 109, par 14.

   Having not accepted the applicant’s key factual claims, it followed that the Tribunal was also unable to be satisfied that the applicant met the complementary protection criterion for the grant of a Protection visa: CB 112, par 33.

   The Tribunal’s conclusion that the applicant was not credible is a finding of fact par excellence.[2] The Court cannot review the merits of the Tribunal’s decision.[3] The Tribunal plainly considered the applicant’s supporting documents and the factual findings that it made about her claims after assessing those documents were open to it for the reasons that it gave. It is a matter solely for the Tribunal to identify such material as it finds relevant to its reasoning and to give that material appropriate weight.[4]”

   [2] Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67]

   [3] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272

   [4] Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5]

9. The applicant was unrepresented before the Court this morning, although had the assistance of a Bengali interpreter.

10. The applicant confirmed to the Court this morning that she had not filed any further documents, either in accordance with the directions given on 19 March 2015, or otherwise. 

11. At the commencement of today’s hearing, the applicant sought to tender a document, purporting to be a copy of her marriage certificate with a different date to the date provided on the certificate given to the RRT. The tender of that document was opposed by the solicitor for the first respondent on the ground of relevance.

12. I explained to the applicant that the only issue before this Court was whether or not the decision of the RRT was affected by a mistake that went to its jurisdiction and that it could not be a mistake on the part of the RRT for it to fail to consider a document as evidence that the applicant had not provided to it. The document was rejected on the ground of relevance. 

13. The applicant’s application for judicial review, filed on 19 December 2014, stated the grounds of review as follows:

    “1. The Tribunal exceeds its jurisdiction or constructively failed to exercise its jurisdiction for its failure to take into consideration my oral and other documental evidence in relation to my claim to be a refugee.

    2. The Tribunal exceeds its jurisdiction or constructively failed to exercise its jurisdiction on my fear for harass and life threat by my ex-husband and denied procedural fairness by not giving me the opportunity to submit my explanations for any adverse information that the tribunal may have. If I would be given the opportunity to explain that could have led to a different decision by the tribunal.

    3. The tribunal biased by the country information and considered my case on average without giving any weight on my individual claims and didn’t look the matter individually.

    4. The tribunal denied the natural justice in determining my review application that the Tribunal is biased, or in the alternative, there was an apprehension of bias in the making of the purported decision.”

    (Errors in original.)

14. The grounds of the application were interpreted for the applicant and the applicant was invited to make oral submissions in support of the grounds.

15. None of the applicant’s responses addressed the grounds raised in her application in particular. 

16. Ground 1 asserts that the RRT failed to consider the applicant’s oral and other documentary evidence in relation to her claims to be a refugee. That ground was not supported by particulars, either written or oral. 

17. I asked the applicant to provide information on the oral evidence and other documents she claimed the RRT failed to take into account. The applicant responded that she had given all her evidence to the RRT and the RRT should have considered it all. 

18. There is nothing on the face of the RRT’s decision record to suggest that that did not occur.

19. The RRT’s decision record makes clear that the RRT considered carefully the applicant’s claims and explored those claims with her at a hearing, and put to the applicant matters of concern that it had about her evidence, and noted the applicant’s responses.

20. It is well established that the RRT is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

21. There is nothing to suggest that the RRT’s findings were not open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the RRT (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

22. The RRT’s decision record makes clear that it considered all supporting documents provided by the applicant and, as stated above, the findings it made about her claims after assessing those documents would appear to be open to it for the reasons given.

23. In the circumstances, Ground 1 does not appear to establish any jurisdictional error on the part of the RRT. 

24. Ground 2 asserts that the RRT exceeded its jurisdiction, or constructively failed to exercise its jurisdiction, and denied the applicant procedural fairness by not giving her an opportunity to submit explanations for any adverse information that the RRT may have possessed. 

25. As stated above in my consideration of Ground 1, the RRT did carefully consider all the applicant’s claims, and the findings that the RRT made in respect of the applicant’s evidence would appear to be open to it on the evidence and material before it. The RRT considered the documentary material provided by the applicant in making its findings. 

26. To the extent that Ground 2 asserts that the RRT denied the applicant procedural fairness by not providing her an opportunity to explain the adverse information it possessed, the only information that the RRT was required to put to the applicant for comment was information that fell within s.424A of the Migration Act 1958 (Cth) (“the Act”). 

27. General country information that is not specifically about the applicant is an exception to the obligations of s.424A of the Act by virtue of s.424A(3)(a) of the Act.

28. It is well settled that the country information to which the RRT has regard and the weight it gives that information is a matter for the RRT (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

29. Otherwise, the RRT’s reasons, including its adverse findings, were following the RRT’s qualitative assessment and subjective appraisal of the applicant’s evidence.

30. The RRT is not obliged to give to the applicant for comment its thought processes and such information does not constitute information for the purpose of s.424A of the Act. There was no other information before the RRT and to which it had regard that enlivened any obligation under s.424A of the Act. It is well established that the RRT’s disbelief of an applicant’s evidence arising from inconsistencies therein is not “information” for the purposes of s.424A of the Act. Neither does information include the RRT’s subjective appraisals, thought processes and determinations, defects, gaps or lack of detail in an applicant’s evidence (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [14] per Finn and Stone JJ).

1. The RRT raised with the applicant its concerns about her claimed marriage, and the absence of any corroborative material regarding the marriage, and noted the applicant’s responses. 

2. Accordingly, Ground 2 does not appear to identify any jurisdictional error on the part of the RRT. 

3. Ground 3 asserts that the RRT used biased country information against the applicant and did not give any weight to the applicant’s individual claims or give consideration to the matter individually.

4. As stated above, it is a matter for the RRT as to the country information to which it has regard and the weight it gives to that information.  In this case, the only country information cited by the RRT related to Bangladeshi marriage law requirements. There is nothing on the face of the RRT’s decision record to suggest that it used bias country information in making its findings.

5. I also accept the first respondent’s submission that, in any event, the RRT did not simply rely on independent evidence to reject the applicant’s claims. In relation to her alleged marriage, the RRT also relied on the applicant’s failure to produce the marriage certificate that she claimed she had, and it put no weight on the purported affidavit from her alleged husband because it was not a marriage certificate and contained inconsistent dates. As I explained to the applicant, the RRT cannot make a jurisdictional error by not considering evidence that was not before it.

6. In the circumstances, Ground 3 does not appear to identify any jurisdictional error.

7. In Ground 4, the applicant makes a general assertion that she was denied natural justice and asserts, again, that the RRT was biased, or that there was an apprehension of bias, in the making of the purported decision. 

8. A claim of bias is serious and requires evidence, such as a transcript of the RRT hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the RRT makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).

9. The applicant was directed on 19 March 2015 by a Registrar of this Court to file and serve any affidavit containing additional evidence to be relied upon by 16 June 2015. That amounts to some three months that the applicant has had to file any further evidence in support of her allegations. However, no document has been filed by the applicant, either in accordance with those directions, or otherwise.

10. A fair reading of the RRT’s decision does not disclose any prejudgment on the part of the RRT in the sense that the RRT was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (see Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).

11. A fair reading of the RRT’s decision does not suggest that the RRT approached its task other than with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the RRT, might reasonably apprehend that the RRT may not have brought an impartial mind in determining the application for review (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).

12. In the circumstances, Ground 4 does not appear to identify any jurisdictional error on the part of the RRT. 

13. Taken as a whole, the applicant’s complaints do not identify any jurisdictional error on the part of the RRT, and appear more to be a disagreement with the findings and conclusions of the RRT. The applicant’s complaints, such as they are, invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] by North, Lander and Katzmann JJ:

    “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

14. 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.

15. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed.

16. 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 filed on 19 December 2014, should be dismissed with costs.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  21 July 2015