SZDCV v Minister for Immigration and Border Protection [2017] FCA 462

FEDERAL COURT OF AUSTRALIA

SZDCV v Minister for Immigration and Border Protection [2017] FCA 462 Appeal from: SZDCV v Minister for Immigration & Anor [2016] FCCA 3264

File number: NSD 9 of 2017

Judge: NICHOLAS J

Date of judgment: 5 May 2017

Legislation: Migration Act 1958 (Cth) ss 36(2)(aa), 36(2)(b), (c)

Cases cited: SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235

Date of hearing: 5 May 2017

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No catchwords

Number of paragraphs: 28

Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter

Solicitor for the First Respondent: Ms E Warner Knight of Australian Government Solicitor

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

ORDERS NSD 9 of 2017

BETWEEN: SZDCV Appellant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: NICHOLAS J DATE OF ORDER: 5 May 2017

THE COURT ORDERS THAT:

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

REASONS FOR JUDGMENT

(Revised from Transcript)

NICHOLAS J:

Background 1 This is an appeal from a judgment of a judge of the Federal Circuit Court dismissing an application for judicial review of a decision by the second respondent, the Administrative Appeals Tribunal ("the Tribunal"), dated 19 January 2016 which affirmed a decision of a delegate of the first respondent ("the Minister") not to grant the appellant a protection visa. 2 The appellant entered Australia on 3 January 1997 as the holder of a Tourist (Subclass 676) visa and has lived in Australia ever since. She first applied for a protection visa on 27 March 1997. Her application was refused by a decision of 7 April 1997. The appellant sought review of that decision by the Refugee Review Tribunal ("RRT"). On 11 August 1998 the RRT affirmed the decision of 7 April 1997. 3 The appellant then brought a proceeding for judicial review of the RRT's decision. By consent the matter was remitted to the RRT for reconsideration. However, the RRT (which was differently constituted) also affirmed the decision of 7 April 1997. The appellant then applied for judicial review of the second RRT decision. The application for judicial review was unsuccessful. 4 Following the decision of the Full Court in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235, the appellant made another application for a protection visa. It is this second application for a protection visa that is the subject of the Tribunal's decision which the appellant challenged before the primary judge. This application was refused by the Minister's delegate on 25 September 2014. On 19 January 2016 the Tribunal affirmed the delegate's decision. 5 The appellant is a national of Indonesia and was born in Medan in 1961. She is of Chinese ethnicity and the Christian religion. The appellant and her former husband were married in around 1984 in Medan. He and a business partner opened a store in Jakarta which operated for about a year. The business failed and the appellant and her former husband, who had moved to Jakarta when the store was operating, moved back to Medan. The former husband later left the appellant and she has not had any contact with him since around 1990. 6 The appellant has a daughter born in 1985 who lives in Australia and an older adult daughter who is married with children and lives with her family in Indonesia in Medan. She is in frequent contact with her eldest daughter. The appellant has three brothers living in Indonesia. Two live in Jakarta and one lives in Medan. 7 Various claims were made by the appellant in support of her application for a protection visa. She claimed that when she left Indonesia in 1997 she was a single mother with two children who had been abandoned by her former husband and had been pursued by an army officer of high rank who sought a sexual relationship with her. She claims the army officer was the former business partner of her former husband. She claims to fear that, should she return to Indonesia, the army officer would again pursue her, harm her or kill her. 8 The appellant also claimed that she would be at risk of harm based upon her former husband's political activities, or political opinions that may be imputed to her based on her association with him. She claimed that her former husband was a member of the Indonesian Democratic Party. She believes that her former husband is now dead and that she and the eldest daughter suspect that he may have been murdered.