SZVHH v Minister for Immigration and Border Protection [2016] FCA 549

FEDERAL COURT OF AUSTRALIA

SZVHH v Minister for Immigration and Border Protection [2016] FCA 549 Appeal from: Application for leave to appeal: SZVHH v Minister for Immigration & Anor [2015] FCCA 3289

File number: NSD 5 of 2016

Judge: NICHOLAS J

Date of judgment: 20 May 2016

Legislation: Migration Act 1958 (Cth), ss36(2)(a) and 36(2)(aa)

Date of hearing: 17 May 2016

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No catchwords

Number of paragraphs: 19

Counsel for the Applicant: The applicant appeared in person with the assistance of an interpreter

Solicitor for the First Respondent: Ms C Saunders of DLA Piper Australia

Counsel for the Second Respondent: The second respondent submitted save as to costs

ORDERS NSD 5 of 2016

BETWEEN: SZVHH Applicant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: NICHOLAS J DATE OF ORDER: 20 May 2016

THE COURT ORDERS THAT:

1. The application for leave to appeal be dismissed. 2. The applicant pay the first respondent's costs of the application as taxed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

NICHOLAS J: 1 This is an application for leave to appeal from a judgment of a Judge of the Federal Circuit Court of Australia (Judge Manousaridis) given on 18 December 2015. By that judgment, the primary judge dismissed the applicant's application for judicial review of a decision of the Refugee Review Tribunal (as it then was) ("the Tribunal") dated 22 September 2014 affirming a decision of a delegate of the first respondent ("the Minister") not to grant the applicant a protection (Class XA) visa. 2 The applicant is a female citizen of Indonesia. She applied for a protection visa on 29 May 2013. In her application form, the applicant claimed to fear harm by her ex-husband and her ex-husband's wife if she returned to Indonesia. The applicant claimed that her ex-husband was a member of a particularly violent group, and that she feared he would possibly pay someone to kill her. The applicant also claimed that the government was unable to protect her and would not arrest her ex-husband due to corruption. 3 A delegate of the first respondent refused to grant the visa on 17 December 2013. The applicant applied to the Tribunal for review of the delegate's decision on 6 January 2014. The applicant gave oral evidence before the Tribunal on 16 September 2014. 4 The Tribunal affirmed the decision under review not to grant the applicant a protection visa on 22 September 2014. The Tribunal was not satisfied that the applicant was a credible witness and rejected the applicant's claims in their entirety. In particular, the Tribunal found that the applicant did not satisfy the criteria for grant of the visa in either s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth). 5 The applicant sought judicial review of the Tribunal's decision by application filed on 17 October 2014. The applicant relied on the grounds pleaded in that application, which were as follows: (1) 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 hand of my ex-husband. (2) 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. 6 The Federal Circuit Court convened a show cause hearing, pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) ("the FCC Rules") which took place on 2 December 2015. The primary judge permitted the applicant's husband to make submissions on her behalf. The applicant, through her husband, sought to tender various medical documents, which were admitted into evidence, subject to relevance, but ultimately rejected by the primary judge as irrelevant. The primary judge ordered that the application be dismissed pursuant to Rule 44.12(1)(a) of the FCC Rules. 7 The applicant now seeks to appeal from the primary judge's judgment. The proposed grounds of the draft notice of appeal are as follows: (1) His Honour accepted that I was depressed as well as the Tribunal did yet the Tribunal and his Honour failed to accept that I was not requested to provide medical evidence and the Tribunal failed to make enquiries and request in writing the supporting evidence concerning my health problem. (2) The Honourable Judge failed to take the medical evidence as relevant information as I mentioned attending psychologist. (3) The Tribunal erred in law as it failed to take into account my medical evidence and was influenced by misleading information. (4) The Tribunal failed to put to me copies of the adverse information as I still believe that a third person who invited me is involved in the misleading information and not me. 8 The application for leave to appeal additionally raises the following matters under "grounds of application": (1) The Tribunal placed strong weight on credibility issue and failed to understand why I did not apply for refugee during my stay in Australia from 2009 until 2012 and the reason was because I entered Australia in different name and wanted to fix my name as I was not responsible for the false passport and false marriage certificate provided for my visit to Australia. (2) His Honour and the Tribunal failed to take into consideration my medicals. (3) The Tribunal as well as His Honour failed to consider the involvement of a third person who provided the misleading information. 9 It is apparent from the Tribunal's Statement of Decision and Reasons ("Tribunal Reasons") that the Tribunal formed an unfavourable view of the applicant's credibility. It referred in particular to the applicant's use of false identity and related documents and to false information that she provided to the Department. The Tribunal did not accept the explanations provided by the applicant in relation to such matters: see Tribunal's Reasons at [10]-[25]. 10 The Tribunal's Reasons noted at [21] that the applicant had indicated that she was stressed, that she was seeing a psychologist, and that she suffered from other medical conditions. It also noted that the applicant did not provide any medical evidence. The Tribunal indicated that it was not satisfied that the matters giving rise to its concerns with the applicant's evidence could be explained by ill-health. 11 In the Tribunal Reasons the Tribunal Member states: [24] The tribunal does not accept that the applicant's ex-husband has harmed her physically and emotionally or arranged for her children to mistreat her past boyfriend. The tribunal does not accept that her ex-husband or his wife have threatened her. The tribunal does not accept that the applicant fears that if she goes back to Indonesia her ex-husband will force her to have sexual relations with him or that he will pay someone to kill or harm her. The tribunal does not accept that the applicant fears harm from her ex-husband or his wife if she were to return to Indonesia now or in the reasonably foreseeable future. [25] Accordingly, the tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention reason. The tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a). [26] For the reasons set out above, the tribunal has found the applicant is not a credible witness and has rejected her claims in their entirety. The tribunal does not accept that the applicant's ex-husband has banned her physically and emotionally in the past or arranged for her children to mistreat her past boyfriend. The tribunal does not accept that her ex-husband or his wife have threatened her. The tribunal does not accept that the applicant fears that if she goes back to Indonesia her ex-husband will force her to have sexual relations with him or that he will pay someone to kill or harm her. The tribunal does not accept that the applicant fears harm from her ex-husband or his wife if she were to return to Indonesia. 12 In respect of the application for review before the primary judge, his Honour said at [17] – [21] of his reasons: [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: [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. 13 At hearing of the present application, I permitted the applicant's husband to appear on her behalf. He made submissions mostly directed to the merits of the applicant's claim to refugee status which did not engage with the Tribunal's reasons for rejecting her claims of fear and harm. Various criticisms were made of the primary judge's decision, including that his Honour ignored medical evidence which was tendered by the applicant at the hearing before the primary judge. 14 It is clear that the Tribunal had regard to the applicant's evidence concerning her medical conditions. The Tribunal was not required to make any further inquiries of any health professionals who may have been treating the applicant. 15 I have looked at the medical evidence which the primary judge held to be irrelevant. As his Honour found, none of that material was before the Tribunal. The material includes a report prepared by a consultant psychologist dated 21 April 2014. It indicates that the applicant was referred to the psychologist in December 2013 for management of anxiety. The report does not include any diagnosis of depression. I respectfully agree with the primary judge that the medical evidence first tendered before his Honour was irrelevant and that the various problems disclosed in that material were incapable of providing any explanation for the matters dealt with in paragraphs [10]-[15] of the Tribunal's reasons and could not have impacted on the applicant's ability to effectively participate in her hearing before the Tribunal. 16 In my opinion, the primary judge was correct to reject the medical evidence as it was not relevant to the application before him. 17 There is no substance to any of the other complaints made in the proposed grounds of appeal. The "adverse information" which is referred to in some of those grounds is not identified and was not identified in the course of the applicant's husband's submissions unless the applicant is taken to be referring to the various statements that she made to the immigration authorities all which were in any event put to her. 18 I agree with his Honour that it was reasonably open to the Tribunal to find that the applicant was not a witness of truth. I also agree with this Honour that no arguable case of jurisdictional error was raised by the applicant. 19 In the circumstances, I am satisfied there is no arguable ground of appeal, that the primary judge's decision was correct and that the applicant's proposed appeal has no reasonable prospects of success. The application for leave to appeal will be dismissed. The applicant must pay the first respondent's costs of the application for leave to appeal. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.