SZVHH v Minister for Immigration & Anor [2015] FCCA 3289 (18 December 2015)

Last Updated: 22 December 2015

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVHH v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 3289

Catchwords: MIGRATION – Application under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) to dismiss an application for judicial review of a decision of the Refugee Review Tribunal – whether applicant has raised an arguable case for relief – no arguable case for relief raised – application dismissed.

Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a)

Applicant:

SZVHH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2884 of 2014

Judgment of:

Judge Manousaridis

Hearing date:

2 December 2015

Delivered at:

Sydney

Delivered on:

18 December 2015

REPRESENTATION

The applicant appeared in person assisted by an interpreter

Solicitors for the Respondents:

Ms N Maddocks of DLA Piper Australia

ORDERS

(1) Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the application is dismissed.
(2) The Administrative Appeals Tribunal be substituted for the Refugee Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY

SYG 2884 of 2014

SZVHH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first respondent (Minister) seeks an order under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) that the application for review be dismissed because the application does not raise an arguable case for the relief it seeks. By that application for review the applicant, seeks judicial review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the Minister not to grant the applicant a Protection (class XA) visa (Protection visa).
2. Before I consider this application, it is necessary to set out the applicant’s claims for protection, and the Tribunal’s reasons for not accepting them.

The applicant’s claims for protection

3. The applicant, a national of Indonesia, applied for a Protection visa on 29 May 2013. In her application the applicant claimed she will be harmed by her former husband if she returns to Indonesia. She also claimed that her former husband had physically and emotionally mistreated her in the past, and he had arranged her children to mistreat her past boyfriend.

The Tribunal’s decision

4. The Tribunal was not satisfied the applicant was a credible witness. The Tribunal relied on a number matters. First, the applicant had made false statements to the immigration authorities of Australia. The Tribunal found, and the applicant admitted, that the applicant entered Australia in 2009 using a fake identity; and the applicant provided false answers to questions asked in her Protection visa application and in a visitor visa application she lodged on 12 February 2013 after she had returned to Indonesia in 2012.
5. In her application for a Protection visa, in answer to the question whether the applicant had travelled outside her home country before her journey to Australia, the applicant disclosed she had travelled to Singapore, but did not disclose she had travelled to Australia from 2009 to 2012. Also in her application for a Protection visa, in answer to a request that she give details of all addresses at which the applicant lived in Australia, the applicant detailed one address from March 2013, but did not disclose any address before March 2013.
6. In her application for a visitor visa the applicant did not respond to the part of the application which requested details of other names by which she is or had previously been known, thus not disclosing the fake name under which the applicant used to enter Australia in 2009; the applicant stated she did not have relatives in Australia, even though she had a partner (her current husband) in Australia; the applicant incorrectly stated she was employed in Indonesia as the head of a financial division of an enterprise; the applicant did not answer the question about whether she had previously applied for entry into Australia; and the person who provided a letter on which the applicant relied inviting the applicant to visit Australia stated he had met the applicant in Indonesia, yet the applicant had met that person in Australia.
7. The second matter on which the applicant relied for not accepting the applicant was a credible witness is the applicant’s not having applied for protection when she was in Australia from 2009 until 2012. The third matter is the applicant’s returning to Indonesia in 2012. The fourth matter is that the applicant travelled to Singapore twice in 2013, and that she did so because she was aware it would be difficult for her to obtain a visitor visa without evidence of travel.
8. The fifth matter on which the Tribunal relied was the explanation the applicant gave for using a fake name. Her explanation was she wanted to come to Australia with a different partner with whom she had a relationship since 2007. The applicant said that at the time she ran away with that person, the applicant’s husband had her passport and her identity document. She did not arrange to have new documents issued in her name because she wanted to come to Australia without her husband knowing. She and her then partner applied for a visa to America, which was refused, and then applied for a visa to Japan, which was granted, but she and her then partner nevertheless decided to come to Australia. The Tribunal found that the applicant’s choosing not to go to Japan was adverse to her evidence that she had a genuine fear of harm of living in Indonesia. The Tribunal also found that this was adverse to her evidence that she assumed a fake identity so she could come to Australia without her former husband knowing.

Grounds of application

9. The application states two grounds of application. The first is:

The Refugee Review Tribunal placed strong weight on my credibility issue which I admitted yet because of the credibility the Tribunal denied all the harm and suffering I endured at the hands of my ex husband.

10. At the hearing before me, I permitted the applicant’s current husband (husband) to make submissions on behalf of the applicant. The husband read from a document which, towards the end of the hearing, he handed up to the Court. (I will refer to this documents as the “Applicant’s Submissions”). The Applicant’s Submissions deal with matters that go beyond the grounds stated in the application. I will deal with those matters separately.
11. As to the first ground stated in the application, the Applicant’s Submissions state that the applicant informed the Tribunal that she had lied before, but was now telling the truth, that she feared being placed in gaol, and she asked for forgiveness. The Applicant’s Submissions further states that the applicant does not understand why the Tribunal did not accept that her former husband harmed her physically and emotionally in the past, or arranged for her children to mistreat her past boyfriend.
12. Ground 1 does not raise an arguable case for relief. It is of course true that the fact a person has lied on particular occasions does not necessarily mean that the person has lied on other occasions. It is beyond argument, however, that the Tribunal was entitled not to accept the applicant was a credible witness because the applicant had lied on previous occasions, and because of the other matters on which the Tribunal relied in not accepting the applicant was a credible witness. As I have already noted, the Tribunal relied not only on the applicant having made false statements on previous occasions, but also on the applicant’s not having applied for a Protection visa when she was in Australia from 2009 until 2012, and the applicant’s having returned to Indonesia in 2012.
13. The second ground stated in the application is as follows:

I will provide evidence to support my health problems as well as other supporting evidence and believe that the Tribunal was influenced by the misleading information and overlooked my claim as a woman at risk which was totally ignored by the Tribunal.

14. This ground raises two matters. The first relates to the applicant’s health. The applicant, through her husband, tendered into evidence a report dated 21 April 2014 by The Psychology Practice which reported the applicant had been referred to that practice for the management of anxiety. The applicant also tendered various other documents relating to the applicant’s medical condition.
15. The applicant accepted she did not provide these documents to the Tribunal. She initially said that she had informed the Tribunal that she had evidence about her health but that she had forgotten to bring the evidence. The applicant, however, withdrew that statement after I asked her to identify this in the transcript of the proceedings before the Tribunal which is in evidence. The applicant was only able to point to the following exchange between the applicant and the Tribunal:^[1]

Member: Was there anything else you wanted to put to me today?
A. Interpreter: After the December interview, I will finish church because I lie in my religion. It doesn’t teach to lie. I feel so stressed that’s why I had to visit the psychologist.
Member: Are you still visiting the psychologist?
Applicant: Yes
Member: How often do you see the psychologist?
Applicant: Four times

16. The applicant’s husband also informed the Tribunal that the applicant went to a doctor, and that the applicant was “bleeding you know she went to hospital. Things like that”.^[2]
17. I admitted the medical evidence subject to relevance, noting that I would rule on its relevance later. I rule that the medical evidence is irrelevant. It was not before the Tribunal, and there is nothing in the transcript of the hearing before the Tribunal that could have indicated to the Tribunal the applicant had any difficulty in effectively participating in the hearing. It is also not arguable, therefore, that the applicant’s medical conditions reflected in the evidence the applicant tendered at the hearing before me impacted on the applicant’s ability to effectively participate in the hearing before the Tribunal.
18. It is not arguable that the applicant’s medical condition gives rise to a jurisdictional error. The Tribunal referred to the applicant’s stating that she had been stressed since her interview before the delegate, that she had been seeing a psychologist fortnightly, and that she suffered other medical conditions. The Tribunal said:^[3]

[The applicant] provided no medical evidence and the tribunal is not satisfied that ill health explains the tribunal’s concerns with the applicant’s evidence.

19. It is beyond argument it was reasonably open to the Tribunal to find that the claimed medical conditions of the applicant did not explain the concerns the Tribunal had with the applicant’s evidence.
20. The second matter raised by the second ground stated in the application is that the Tribunal was “influenced by the misleading information and overlooked my claim as a woman at risk which was totally ignored by the Tribunal”. I read “misleading information” to be a reference to the misleading information the applicant acknowledges she had provided to Australian immigration authorities. So read, this ground only expresses disagreement with the Tribunal’s relying on the applicant’s having provided misleading information to Australian immigration authorities. As I have already concluded, it is beyond argument it was reasonably open to the Tribunal to rely on the applicant’s having provided misleading information to conclude the applicant was not a witness of truth.
21. It is also not arguable that the Tribunal overlooked the applicant’s claims that she was a woman at risk. It is beyond argument that the Tribunal considered the applicant’s claims. Unfortunately for the applicant, the Tribunal did not accept her claims; and it is beyond argument that it was reasonably open to the Tribunal not to accept the applicant’s claims for the reasons the Tribunal gave.
22. As I have already noted, the Applicant’s Submissions also refer to matters not stated in the application.
    1. First, the Applicant’s Submissions state that the applicant believes her life is at risk at the hands of her former husband if she were to return to Indonesia. That does not raise any arguable case for relief because it only repeats the claim the applicant made to the Tribunal which the Tribunal, as it was reasonably open for it to do, did not accept. As I informed the applicant, the Court does not have jurisdiction to determine whether the applicant had valid grounds for the grant of a Protection visa.
    2. Second, the applicant states that she had made an application for a partner visa in Jakarta, and that she had provided medical letters with that application which she had not provided to the Tribunal. That raises no arguable case for review, given that the medical letters were not provided to the Tribunal.
    100. Third, the person (Mr H) who had invited the applicant to visit Australia did so at the request of her husband. That too raises no arguable case. Whether or not the letter was sent by Mr H at the request of the applicant’s husband could not reasonably have been regarded by the Tribunal as bearing on whether the letter was true or not.

Conclusion and disposition

23. The application for review raises no arguable case for the relief it seeks. I propose, therefore, to make an order dismissing the application pursuant to r.44.12(1)(a) of the FCC Rules. I will hear the parties on costs.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate:

Date: 18 December 2015

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^[1] Transcript, page 12. The transcript is annexed to an affidavit made by the applicant’s husband.
^[2] Transcript, pages 16-17
^[3] CB85, [21]