AZAAR v Minister for Immigration
[2009] FMCA 157
•3 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AZAAR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 157 |
| MIGRATION – Judicial review of Refugee Review Tribunal decision affirming decision not to grant the applicant a protection visa – alleged jurisdictional error by the Tribunal – application refused. |
| Migration Act 1958 (Cth), ss.91R, 476 Australian Constitution, para.75(v) |
| Craig v The State of South Australia [1995] HCA 58 Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty Ltd (1953) 88 CLR 100 at 120 |
| Applicant: | AZAAR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | ADG 255 of 2008 |
| Judgment of: | Lindsay FM |
| Hearing date: | 20 February 2009 |
| Date of Last Submission: | 20 February 2009 |
| Delivered at: | Adelaide |
| Delivered on: | 3 March 2009 |
REPRESENTATION
| Counsel for the Applicant: | Dr Churches |
| Solicitors for the Applicant: | Bourne Lawyers |
| Counsel for the Respondents: | Mr D’Assumpcao |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Amended Application for Judicial Review filed on 5 February 2009 be refused.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 255 of 2008
| AZAAR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By way of an Amended Application filed on 5 February 2009 the applicant seeks orders by way of certiorari against the second respondent and orders in the nature of mandamus against the first and second respondents in respect of a decision of the first respondent (hereinafter “the Tribunal”) of 4 October 2008. That decision affirmed the decision of the delegate of the Minister of 17 April 2008 not to grant the applicant a protection visa.
This is an application pursuant to s.476 of the Migration Act 1958 (“the Act”). Pursuant to that section this Court has the same original jurisdiction in relation to migration decisions as the High Court has under para.75(v) of the Constitution.
However, the decision of the Tribunal is a privative clause decision and is to be taken to be final and conclusive unless the decision can be shown to have been vitiated by jurisdictional error as that concept has been explained by the High Court in such cases as Craig v The State of South Australia [1995] HCA 58 and as it has been discussed by that Court with particular relevance to migration decisions in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476.
The applicant is a citizen of Vanuatu. She arrived in Australia on 7 June 2004. However, it was not until 18 January 2008 that she made her application for a protection visa.
The applicant claimed that she is unable to return to Vanuatu on account of her fear of physical abuse and mistreatment by her husband. She says that he has been physically and emotionally abusive towards her from the time she was pregnant with their first child. She says she has suffered a number of beatings at his hands. She has never tried to elicit the support of the police in respect of her abusive treatment by her husband. Attempts by her brothers to obtain the assistance of a village chief were thwarted by the intervention of the husband.
The applicant had travelled to Australia as a visitor in 2000 and 2003 but was obliged to return to Vanuatu because of the age of her children and their need from her care. The husband’s violence towards her was particularly bad after her second trip to Australia. Her teeth were broken and she was required to be hospitalised. It was at that time that she discussed the matter with her older children and they agreed that she should escape from the husband by travelling to Australia.
She says that the husband has continued to contact her following her arrival in Australia and continues to threaten her family. She claimed that if she returned to Vanuatu he would track her down and, at the least, seriously harm her. The chiefs of her village will be unable to help her and she has no confidence in obtaining effective assistance from the police in Vanuatu.
The Tribunal had access to the delegate’s file. It has written submissions from the applicant’s migration agent. It invited the applicant to an oral hearing and she gave evidence. Her agent made oral submissions at the hearing.
Following the hearing the Tribunal sought certain information from the applicant, which pertained to a woman’s organisation in Vanuatu that had assisted her in relation to her divorce from her husband and further details in relation to her divorce. That elicited a further written response from the agent, which made it clear that the applicant and her husband were not yet divorced.
Thereafter, further written submissions and materials were forwarded by the applicant’s agent to the Tribunal.
The Tribunal had recourse to a significant amount of country information which is summarised at paras. 65 and 66 of the Tribunal’s decision (see CB 200 – 201).
That material included a 2008 United States State Department report on human rights practices in Vanuatu and a report of the Australian Department of Foreign Affairs and Trade (“DFAT”) relating to domestic violence against women in Vanuatu.
The Tribunal’s decision was not one that was dependent on any adverse credit findings in relation to the applicant. Not even the uncertainties associated with whether or not the applicant had contended at an earlier stage that she had been divorced was given any weight by the Tribunal.
The Tribunal accepted the ill-treatment at the hands of her husband that the applicant had described. In particular it accepted that the physical acts of domestic violence represented significant physical harassment of her for the purposes of s.91R of the Act. It accepted that she had been assaulted by her husband such that she had been rendered unconscious. It did not go so far as to find that the applicant was at risk of being murdered by the husband but plainly accepted that she faced a real chance of serious chance of harm by her husband in the foreseeable future if she were to return to Vanuatu (see CB 205).
In relation to the claim for persecution for a Convention reason the applicant claimed that she was a member of a particular social group, namely victims of spousal abuse or domestic violence or, alternatively, victims of domestic violence in Vanuatu. Whilst the Tribunal was unable to accept that as an apposite prescription of a social group for Convention purposes (because the only defining characteristic of it was the shared fear of the persecution itself), it did accept the membership of a particular group of Vanuatu women or Vanuatu married women. The appropriateness of the description of women in a society as a social group has been given the specific approval of the High Court in Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 (see in particular the judgment of Gleeson CJ at [32] to [35]).
The next issue addressed by the Tribunal was the question of whether the persecution feared by the applicant was by reason of her membership of that identified social group and it is at this point that Dr Churches, for the applicant, contended that the Tribunal first fell into jurisdictional error.
Unfortunately, the point at which the Tribunal deals with this issue - at para.[75] of its decision - is given an inapposite heading. The heading given is “State Protection”, whereas that is a topic that is addressed at the next numbered paragraph, which is [76].
This is what the Tribunal says at [75]:
Having determined that the applicant is a member of a particular social group, it is therefore necessary next to consider whether she was (or will be) persecuted by reason of her membership of that group. I do not accept that the applicant’s husband inflicts serious harm on her because of her membership of a particular social group. His violence is, on the evidence before me, directed only at her. There is nothing before me to suggest that he persecutes women in Vanuatu outside of his marriage. The harm that the applicant fears is not for the essential and significant reason of her membership of the particular social group “women in Vanuatu” or “married women in Vanuatu” but arises out of the individual circumstances of her relationship with her husband. Accordingly, I do not accept that the applicant faces a real chance of serious harm in the reasonably foreseeable future from her husband as a consequence of her membership of the particular social group.
It is contended that the Tribunal fell into error by asking itself the inappropriate question as to whether the husband’s violence was directed at persons other than her or only at her. The circumstances described in the High Court decisions of Khawar (supra) and Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 were instanced. In Khawar the High Court had not suggested that there was a need for the violence perpetrated by the members of the applicant’s household against her to have been perpetrated on anyone else but her. In Dranichnikov (supra) it was said that the High Court had not indicated any need for the corrupt law enforcement officers to have targeted anyone other than Mr Dranichnikov himself.
However, a fair reading of the paragraph set out above at [18] makes it plain that the issue of the husband’s violence only being directed at his wife and not at any other persons was an incident of the discussion of whether the wife’s fear of harm was for a Convention-related reason. It must be readily accepted that if a person demonstrates fear of harm for a Convention-related reason he or she does not need to demonstrate that persons other than himself or herself have been the targets of such persecution. It will sometimes be the case that the issue of whether the harm is directed at only one individual or at a group of individuals will be of some assistance in determining whether the harm is Convention-related. That is the context of the discussion of that issue in this paragraph. The applicant’s husband’s violence is directed towards his wife qua wife and not as an incident of her membership of a social group. That is the point it seems to me that the Tribunal was making.
The Minister’s appeal in Khawar (supra) failed because the High Court took the view that it was not impermissible to treat absence of state protection as a factor capable of converting private harm, based upon motivation of other than one of the Convention reasons, into persecution within the Convention definition (see [15] of the judgment of Gleeson CJ). Khawar (supra) was a case that proceeded upon the basis of allegations of the toleration or condonation by the State of Pakistan of the kinds of family violence which had been suffered by the applicant at the hands of her family.
Khawar (supra) is a case concerned with the absence of state protection in the context of the risk of harm being that which is perpetrated by non-state agencies for non-Convention reasons.
The High Court agreed with the two appellate levels of the Federal Court that the Tribunal in that case had misapprehended the requirements for the absence of state protection in obtaining refugee status. But as to the anterior question of the characterisation of the harm perpetrated by the non-state agents as being personal and not actuated by Convention requirements, the Tribunal’s findings were not the subject of any criticism by the High Court. They are set out in para.[13] of the judgment of Gleeson CJ.
The Tribunal in the case at hand accepted that the applicant’s husband behaved towards her in a criminal way but was not satisfied that his criminal behaviour was on account of the applicant’s race, religion, nationality or membership of the social group of women or married women in Vanuatu. That his criminal violence was directed at his wife and not at any other person was a matter that assisted the Tribunal in coming to a conclusion which, I think, must be regarded as unexceptional and that is that the applicant’s husband’s conduct was personally motivated.
I fail to see that the Tribunal fell into jurisdictional error in proceeding in this way in respect of that topic.
The Tribunal then moves to the issue of state protection. It, properly, accepts that it is settled law that the failure of a state to afford its citizens protection from non-state actors is capable of amounting to persecution in the Convention sense and the decision of the High Court in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 is cited in support of that proposition.
The Tribunal then turns to consider whether Vanuatu fails to protect members of the social group identified from serious harm and it comes to the conclusion that whilst the state protection is “somewhat imperfect” it is available to victims of domestic violence in Vanuatu. This conclusion is set out at CB 78.
Having come to that conclusion the Tribunal then re-examines it from the perspective of asking the question as to whether the state had shown toleration or condonation of domestic violence in Vanuatu. In proceeding in this way the Tribunal again, it appears to me, to be proceeding in an unexceptional manner. In Khawar (supra) Gleeson CJ discusses the issue of persecution and state protection. He says at [27]:
Article 1A(2) does not refer to any particular kind of persecutor. It refers to persecution, which is conduct of a certain character.
I do not see why persecution may not be a term aptly used to describe the combined effect of conduct of two or more agents; or why conduct may not, in certain circumstances, include inaction.
And at [29] His Honour further says:
If there is a persecutor of a person or a group of people, who is a “non-state agent of persecution”, then the failure of the state to intervene to protect the victim may be relevant to whether the victim’s fear of continuing persecution is well-founded. That would be so whether the failure resulted from a state policy of tolerance or condonation of the persecution, or whether it resulted from inability to do anything about it. But that does not exhaust the possible relevance of state inaction.
Further at [31]:
Where persecution consists of two elements, the criminal conduct of private citizens, and the toleration or condonation of such conduct by the state or agents of the state, resulting in the withholding of protection which the victims are entitled to expect, then the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the state.
The same point was made in a slightly less pithy fashion by Kirby J in the same judgment at [119] when His Honour endorsed the statement by the New Zealand Refugee Status Appeals Authority as set out therein. That Authority said, as quoted at [120]:
Accepting as we do that Persecution = Serious Harm + The Failure of State Protection, the nexus between the Convention reason and the persecution can be provided either by the serious harm limb or by the failure of the state protection limb. This means that if a refugee claimant is at real risk of serious harm at the hands of a non-state agent (eg. husband, partner or other non-state agent) for reasons unrelated to any of the Convention grounds, but the failure of state protection is for reason of a Convention ground, the nexus requirement is satisfied. Conversely, if the risk of harm by the non-state agent is Convention related, but the failure of state protection is not, the nexus requirement is still satisfied. In either case the persecution is for reason of the admitted Convention reason. This is because ‘persecution’ is a construct of two separate but essential elements, namely risk of serious harm and failure of protection. Logically, if either of the two constitutive elements is ‘for reason of’ a Convention ground, the summative construct is itself for reason of a Convention ground.
Having found that the persecution by the non-state actor in the case at hand (the husband) was not for a Convention reason the Tribunal properly considered itself obliged to ask itself whether the Convention-related persecution could be derived from an analysis of all of the material available to it which explained the attitude of the authorities in Vanuatu of victims of domestic violence.
It was not satisfied that there would be a real chance of the applicant being denied protection by the authorities in Vanuatu should she require it upon her return there. Important to its conclusion in this regard was the fact that the applicant did not produce evidence that the authorities in Vanuatu had been asked by her and had refused to provide her with state protection (an individual village chief had been approached by a member of the applicant’s family on her behalf but not a state authority). The Tribunal accepted that some country information suggested reluctance on the part of the police to intervene in domestic matters but gave some significant weight to the fact that the applicant conceded had not once asked the police for assistance in a way which would have tested their resolve.
The Tribunal gave some weight, as it was entitled to do, to the DFAT report referred to above at [12] in finding that there are laws of general application against assault under which perpetrators of domestic violence have been prosecuted in Vanuatu. The Tribunal found at [87] of its decision that:
In the light of this evidence, I find it difficult to see how I could find that Vanuatu tolerates or condones domestic violence, or that there is a real chance that the State would withhold protection from the applicant for reasons of discrimination because of her membership of the particular social group.
The Tribunal went on to find that it did not consider that the lack of specific domestic violence laws was indicative of persecution and noted that the general criminal law, which would impugn assault upon a family member, provided some protection. The Tribunal also noted that there was domestic violence legislation which had been “passed” by the legislature, even if it was yet to pass into law.
The Tribunal found at [90] as follows:
It is common knowledge that, in the last two decades, there have been significant reforms in Australia aimed at improving the protection of women from domestic violence. To the extent that these reforms were necessary, that was so since, like traditional Vanuatu culture, in nineteenth century Australian (or European) society, women were seen as the property of the husband. Children were regarded as chattels of the father. Much has changed since then, but even in Australia work remains to be done and authorities continue to pursue reforms aimed at improving the effectiveness of protection of women from domestic violence. Given these continued efforts to improve protection, it could be argued that this should be taken as an acknowledgement that the level of protection currently afforded in Australia is inadequate. However, I do not accept this argument in the case of Australia; nor do I accept it in the case of Vanuatu.
Dr Churches was highly critical of the way in which the Tribunal evaluated the question of the response and attitude of the Vanuatuan authorities to the issue of domestic violence. He said that certain matters in the DFAT report and the report of the US State Department had been given emphasis while other significant matters contained in those reports had been overlooked, such as that only very serious cases were reported to the police and that a number of cases go unreported because victims fear reprisal.
Dr Churches suggested that a careful consideration of the evaluation of this issue by the Tribunal demonstrated that it fell into jurisdictional error in that the inadequacy of the material upon it relied in coming to its conclusion can be taken to undermine our ability to safely draw an inference that the Tribunal was asking itself appropriate questions and having regard to appropriate material and not having regard to extraneous material. In formulating this submission, Dr Churches was scrupulous in avoiding any specific suggestion that this Court was being invited to take a different view then the Tribunal did of the country information before it and eschewed any suggestion that the Court was being invited to participate in a merits-based review of the Tribunal’s decision. It was in this context that Dr Churches relied upon a decision of Dixon J (as he then was) in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 and of the same Judge when Chief Justice in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty Ltd (1953) 88 CLR 100. Both cases considered attempts to review decisions of administrative boards or tribunals in circumstances where, as here, the grounds for review or challenge were highly circumscribed.
The relevant passage in Avon Downs Pty Ltd (supra) at p.360 is as follows:
But it is for the commissioner, not for me, to be satisfied of the state of the voting power at the end of the year of income. His decision, it is true, is not unexaminable. If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.
The passage in R v Australian Stevedoring Industry Board (supra) at pp.119 – 120 reads:
It is in this respect only that the stage at which the present application is made becomes important. But the chief point of difficulty in the case lies in the distinction between on the one hand a mere insufficiency of evidence or other material to support a conclusion of fact when the function of finding the fact has been committed to the tribunal and on the other hand the absence of any foundation in fact for the fulfilment of the conditions upon which in point of law the existence of the power depends. It is not enough if the board or the delegate of the board, properly interpreting pars.(a) and (b) of s.23(1) and applying the correct test, nevertheless satisfies itself or himself on inadequate material that facts exist which in truth would fulfil the conditions which one or other or both of those paragraphs prescribe. The inadequacy of the material is not in itself a ground for prohibition. But it is a circumstance which may support the inference that the tribunal is applying the wrong test or is not in reality satisfied of the requisite matters. If there are other indications that this is so or that the purpose of the function committed to the tribunal is misconceived it is but a short step to the conclusion that in truth the power has not arisen because the conditions for its exercise do not exist in law and in fact.
I have considered the Tribunal’s evaluation of the country information and the issue of state protection from the perspective as to whether the alleged inadequacy of the material relied upon by the Tribunal is indicative of a constructive failure to exercise jurisdiction but I am unable to find that such is the case. On the contrary, the consideration of the country information, which was recent and from sources of high repute, appears to be balanced. The conclusions drawn appear to be based upon the information made available in these reports. Another finder of fact may have come to a different view in relation to the material or may have given emphasis to different aspects of the material, as Dr Churches suggested, but that does not mean that the Tribunal’s handling of these issues was vitiated by jurisdictional error.
Those two issues being the only two issues which were agitated on the hearing of the application before me, the Amended Application filed on 5 February 2009 will be refused.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Associate: Ms N. Julius
Date: 3 March 2009
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