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. The Tribunal's Decision 9 The Tribunal considered each of the appellant's express claims. It also considered other matters that were not the subject of any specific claim, but that might be thought to arise on the material before it. In particular the Tribunal considered whether the appellant was at risk of harm due to her being a Chinese Christian. It also considered the matter of financial hardship experienced by her when she was married to her former husband and living in Indonesia and the financial difficulties that may await her if she is required to return there. 10 The Tribunal accepted that, since coming to Australia in 1997, the appellant has worked towards giving her children a better life, and that she has succeeded in financially supporting her youngest daughter to study in Australia and to achieve permanent residency as a skilled independent visa holder. 11 In its reasons the Tribunal said (at [12]) that it had "significant concerns regarding the truth of central aspects of the [appellant's] claims and evidence." In particular, the Tribunal said (at [33]) that it was not satisfied that the appellant was threatened or pursued for sex by an army officer in Indonesia or that she faces any real risk of harm from any "army man" in Indonesia in the reasonably foreseeable future. Nor was the Tribunal satisfied (at [36]) that either the appellant or her former husband had or have any political profile or suspected links with any particular political opinion in Indonesia. The Tribunal was also not satisfied that her former husband's death was the result of foul play of any kind. 12 The Tribunal was also not satisfied (at [43]) that the appellant would suffer financial hardship which rises to the level of "significant harm" in the sense that term is defined in the Migration Act 1958 (Cth) ("the Act"). In this context the Tribunal referred to her skills, employment history and family network in Indonesia. 13 In the result, the Tribunal was not satisfied that the appellant is a person in respect of which Australia has protection obligations. It was not satisfied that the appellant was a person who satisfied any of the criteria set out in s 36(2)(aa) or s 36(2)(b) or (c) of the Act. The Appellant's Grounds of Review 14 The grounds of review relied upon by the appellant before the primary judge asserted that: The Tribunal accepted what happened to me in Indonesia yet failed to accept that I will suffer financial hardship, emotional hardship and other hardship which rise to the level of significant harm. 15 The appellant, in her application, also asserted that the Tribunal failed to acknowledge the real risk of harm that the appellant would suffer if she was required to return to Indonesia. The Primary Judge's Decision 16 The appellant was not legally represented before the primary judge but was assisted by her daughter who his Honour permitted to address the Court on the appellant's behalf. The daughter did not appear at the hearing of the appeal, but the appellant was assisted by an interpreter. 17 The primary judge's reasons refer to the Tribunal's reasons and the grounds of review relied upon by the appellant. 18 The primary judge said in his reasons for judgment: [21] Unfortunately, neither the Applicant herself nor her daughter, whom I permitted to address the Court, could meaningfully advance the Grounds relied upon in this proceeding. [22] Obviously this case is an unfortunate one for the Applicant. She has now resided in Australia for more than nineteen years and is understandably reluctant at her age to return to Indonesia. On the other hand, she has known since the first refusal of a Protection visa by the first Delegate on 7 April 1997 that her continued residence in this country was no sure thing. [23] The jurisdiction of this Court under s.476 of the Act is limited to providing relief in respect of jurisdictional error by the Tribunal and that jurisdiction does not involve reviewing the merits of the Tribunal's decision nor the factual findings made by it. [24] Having regard to the difficulty faced by the Applicant in making meaningful submissions to this Court in support of her Grounds, I have independently considered the Decision Record of the Tribunal, but I cannot discern jurisdictional error. The Tribunal's decision does not appear in any way irrational, capricious, lacking an intelligible justification or otherwise legally unreasonable, and the findings made by the Tribunal appear to have been open to it upon the materials then before it. 19 His Honour ordered that the application be dismissed with costs. The Grounds of Appeal 20 At the commencement of today's hearing, I explained to the appellant the limits on the powers of the primary judge and of this Court to set aside decisions of the Tribunal in the absence of any jurisdictional error. 21 The first two grounds of appeal relied upon by the appellant in this Court assert that the Tribunal's decision was wrong and that the appellant had been truthful in her claims. The notice of appeal asserts in ground 3: The Tribunal had no basis to attack my credibility and the Tribunal failed to understand my terrible circumstances which amount to serious harm. The Tribunal failed to consider my subjective well founded fear of harm and persecution as well as the fear of being subjected to degrading treatment or punishment. The Tribunal erred in law by ignoring the hardship which rise to the level of significant harm. 22 The appellant filed a written submission the day prior to her hearing which, like the grounds of appeal, does not appear to have been prepared with the benefit of professional legal assistance. Her written submission asserts that the Tribunal failed to consider various matters and re-affirms the truth of her evidence before the Tribunal. 23 The appellant asserts that the Tribunal: failed to take her age into consideration; failed to consider what would happen to her if she were to return to Indonesia; had no reason not to believe her account of her dealings with the army officer. 24 I do not think there is any substance to these complaints. It appears to me that the Tribunal has taken into account the appellant's age and her dealings with the army officer, and has also considered what would happen to her if she were to return to Indonesia. In particular, it was not satisfied that the appellant would, were she to return to Indonesia, suffer any significant harm in the relevant sense. 25 In her oral submissions this morning, the appellant, speaking through the interpreter, suggested there was certain evidence that was either not considered by the Tribunal or was not given proper weight by the Tribunal. This evidence consisted of communications occurring via Facebook between the appellant and her daughter in Indonesia regarding the death of her former husband. The Tribunal referred to this evidence specifically in paragraph 38 of its reasons where it said: The applicant also submitted to the Tribunal a print-out of what she described was a Facebook conversation between herself in Australia and her daughter in Indonesia regarding the death of her former husband. The Tribunal asked her to read out the parts of that dialogue which she considered relevant to her claims, which the interpreter then interpreted to the Tribunal. In summary, the section the applicant read out was to the effect that her husband died in an alleged motor cycle accident, however, as there was no known fault with the motor cycle, the applicant and her daughter suspect that perhaps he was murdered, and possibly by the army man. She said that this makes her fear that she will be killed too if she returns to Indonesia. When asked what the basis for her own and her daughter's speculation as to her former husband's cause of death was, she offered only that there was nothing wrong with his motorcycle so it should not have crashed. She also told the Tribunal that her in-laws have accepted that the cause of death was an accident and have not pursued any other line of inquiry. 26 This does not appear to have been a matter that was raised before the primary judge and it certainly was not mentioned in the grounds of review. Nevertheless, I am satisfied that there is no substance to these complaints. I think it is clear that the appellant is doing no more than asking this Court to engage in impermissible merits review. In the circumstances, I agree with the primary judge that the Tribunal's decision is not shown to have been affected by any jurisdictional error. The primary judge's judgment was, in my view, correct. 27 The appeal will be dismissed. The appellant must pay the first respondent's costs of the appeal. 28 There will be orders accordingly. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate: Dated: 31 May 2017