MZAAV v Minister for Immigration

[2014] FCCA 2805

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAAV v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2805

Catchwords:
MIGRATION – Application for judicial review protection visa – whether Tribunal considered local information – whether, given Tribunal’s findings of fact, conclusion not open to it – whether Tribunal failed to consider all evidence before it – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa)

Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
Tefonu Pty Ltd v Insurance & Superannuation Commissioner (1993) 44 FCR 361
Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162
Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24

Applicant: MZAAV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 327 of 2014

Judgment of: Judge Jones

Hearing date: 8 September 2014

Date of Last Submission: 16 October 2014

Delivered at: Melbourne

Delivered on: 19 December 2014

REPRESENTATION

Counsel for the Applicant: Self Represented

Solicitors for the Applicant: Self represented

Counsel for the Respondents: Mr Brown

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed on 25 February 2014 is dismissed.

2. The applicant pay the respondent’s costs fixed in the sum of $6646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 327 of 2014

MZAAV

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and Background

1. This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 28 January 2014 affirming a decision of the Minister’s delegate not to grant the applicant a Protection (Class XA) visa (“the Protection visa”).

2. The applicant is a 27 year old citizen of the Sikh faith who arrived in Australia on 3 March 2012 as the holder of a Student (Class 570) visa to undertake an English language course. She holds a degree in dental surgery and practised as a dentist for 3 years in India before coming to Australia (CB [21]-[22]).

3. On 4 December 2012 the applicant sought a waiver of a “no stay” condition, with a view to lodging a further Student visa, but the application was refused on 13 December 2012. The applicant then lodged an application for a Protection visa on 24 December 2012 (CB [6] – [79]).

4. The applicant was invited to a delegate interview scheduled for 9 May 2013, but failed to appear, submitting a 3 day medical certificate later the same day for the period 8 - 10 May 2013. A second interview was arranged for 13 May 2013. The applicant contacted the delegate on that day to say that she has severe tooth pain and would be unable to attend. A detailed medical certificate was required, but was never provided. The delegate rejected the applicant’s claims as “patently vague and lacking in detail” and refused to grant the visa on 4 July 2013 (CB [79]-[81]).

5. The applicant lodged an application for review with the Refugee Review Tribunal (“the Tribunal”) on 1 August 2013 (CB [82]-[87]), and attended a hearing on 17 October 2013. The applicant provided a post-hearing written statement to the Tribunal on 31 October 2013.

6. The Tribunal handed down its decision on 28 January 2014, affirming the delegate decision (CB 101-126).

Grounds For Judicial Review

1. The applicant’s grounds for judicial review are:

   a)The Tribunal has accepted that there is a chance that the applicant could suffer serious harm through sexual violence in the future in her home area of the Punjab (sic), yet it concludes that there is no real chance of suffering serious harm.

   b)The Tribunal concludes that her fear of serious harm is mere speculation and not well founded and this is based on the available independent information.

   c)The Tribunal further concludes that she is protected because of the availability of police protection from such criminal acts.

   d)This is the same Tribunal at paragraph 61 of its decision notes independent reports which indicate that sexual assault is widespread in India… (sic) official statistics pointed to rape as the fastest growing crime, even when compared to murder, robbery and kidnapping……(sic) the law in India provides for protection from all forms of abuse against women….. (sic) however law enforcement and legal avenues for rape victims are inadequate, overtaxed and unable to address the issue effectively… (sic) law enforcement officers sometimes worked to reconcile rape victims and their attackers… (sic) Human Rights Watch notes that women faced abuse when visiting police stations to inquire after family members in police custody and when seeking to Register FIR’s including incidents if rape….. (sic) NGO’s claimed some rapes may have gone unreported due to the victim’s feelings of shame and fears of retribution and at paragraph 63 goes into the situation in the Punjab, where the applicant hails from and concludes that the women have less rights than men and suffer numerous forms of sexual harassment….. (sic)

   e)On the available independent information the only conclusion the Tribunal could have reached is that there is a real chance of serious harm being suffered by the applicant in the near future if she was to return to India or to the Punjab (sic), because of her membership of a particular social group, namely a young single woman or a young single professional woman.

   f)Likewise the Tribunal has erred by concluding that there are no substantial grounds for believing that there is a real risk she will be subjected to sexual violence that would amount to torture or cruel inhuman treatment or punishment, or to degrading treatment or punishment.

Proceedings

1. At the commencement of the proceedings, the applicant correctly pointed out that there was an error in the procedural orders made by the Registrar of the Court on 21 May 2014. The error was that the application for judicial review was listed for hearing on 25 September 2014, however, the orders required the applicant to file and serve her material by 3 October 2014 and the respondent by 24 October 2014. The applicant said she was confused by this. It transpired that she sought an opportunity to provide written submissions. The Minister conceded that the error in the orders had not been identified in a timely manner. However, once the discontinuity was identified the Australian Government Solicitor (“AGS”) wrote to the applicant on 8 September 2014, providing a copy of the Court Book, pointing out that the hearing was listed for 25 September 2014 and inviting the applicant, if she so wished, to file written submissions with the Court by 17 September 2014, in which case, it committed to providing its written submissions by 19 September 2014 (which the Minister did). The applicant ultimately conceded that she was mistaken in failing to bring the errors to the Court’s attention earlier.

2. To address the issues which had been raised and to accord the applicant an opportunity to make a written submission, I determined that the hearing should proceed by way of oral submissions and that the applicant and respondent be given an opportunity to file written submissions within a reasonable period.

3. As the applicant was self-represented, I explained to her the nature of judicial review, emphasising that the process before the Court was not one of merits review but, rather, one of identifying whether the Tribunal’s decision disclosed a legal mistake; for example, by failing to consider all the applicant’s claims or whether the Tribunal failed to comply with the procedural fairness provisions of the Migration Act 1958 (“the Act”).

4. I used the opportunity during the proceedings to clarify the applicant’s assertion that the Tribunal decision was made without jurisdiction or was affected by jurisdictional error. The applicant confirmed that the Tribunal correctly identified her claim of persecution; that she would be subjected to sexual violence by men if she returned to India because she is a young professional single woman and because she and her family are active supporters of the Congress Party.

5. The applicant stated that the Tribunal failed to consider all the evidence in that it did not consider localised information in addition to the independent country information it did refer to. She claims she provided the localised information to the Tribunal at the hearing. She stated that the localised information dealt with sexual violence of women in the Punjab area, north of India which was where she lived. The localised information, the applicant says the Tribunal failed to consider at all, was referred to in her written submission attached to her application for a protection visa (CB [37] – [41]) and included in her written submission to the Tribunal after the hearing (CB [92] -  [99]).

6. I note here that the applicant did clarify that the general country information was relevant because of her claim that she was unable to relocate to any place outside of the Punjab as sexual violence is widespread throughout India.

7. The applicant filed her Contentions of Fact and Law on 8 October 2014. These contentions repeat the assertions made in the particulars to the applicant’s grounds of review, save to say she has included an additional assertion and/or particular; namely:

   “11. The Tribunal at paragraph 63 at its decision (CB 116) states the available information about the Punjab in the north-western areas of India indicate that it is a patriarchal society where women have less rights than men and suffer numerous forms of sexual harassment… (sic) And sexual harassment is endemic throughout India and that women are subjected to a variety of different forms of sexual violence throughout the country, including violent sexual assaults.”..

8. The AGS advised my chambers on 9 October 2014 that, having read the applicant Contentions of Fact and Law, it would not be filing further submissions.

Applicant’s claims

1. In her written submissions attached to her application for a protection visa, the applicant claimed (CB [32] – [44]) :

   a)she had been assaulted, harassed, threatened and had property damaged by members and supporters of the BJP and Akali Dal parties because she and her family were Congress Party supporters;

   b)she is not able to rely on the government of India for protection because it is a coalition of BJP and Akali Dal ;

   c)the harm and mistreatment suffered by the applicant constituted persecution;

   d)she will be persecuted if returned to India due to her past political opinion; that is, she was a supporter of the Congress Party;

   e)sexual harassment and sexual violence towards females in India is widespread as well as in the Punjab region;

   f)as a professional dentist she is fearful for her safety;

   g)she received threatening calls on her phone and, on one evening shift, as she was going to work in an auto rickshaw, some strangers stopped the rickshaw driver and asked him to follow them. As it was near the market, the driver was able to her drop off near the dental clinic;

   h)she and her parents were active Congress party supporters and she had become fairly well known as a Congress person in the region;

   i)as a single woman she was subject to constant sexual harassment and the perpetrators of this harassment were often BJP/Akali Dal supporters. When she complained no action was taken against men and in fact it got worse;

   j)she was actively involved in the 2012 election;

   k)she will suffer persecution from the current coalition (BJP/Akali Dal supporters) who have persecuted opposition supporters who were Congress supporters.

2. The applicant included in her submission summaries of news items of violence, mainly in the Punjab region (CB [37] – [41] and CB [46] – [52]).

3. Following the Tribunal hearing held on 17 October 2013, the applicant sent written submissions in relation to crime in India and the Punjab region, particularly against Congress supporters and women and attached various media articles on violence and treatment of women in India (CB [91] - [100]).

Tribunal Decision

1. The Tribunal, in its decision record, summarised the claims the applicant made in support of her fear of persecution if returned to India (CB102 [6]) as well as the evidence given by the applicant at the hearing under two headings: “claims of past harm regarding sexual harassment and violence” and “claims relating to the Congress Party”  (CB103 to 114).

2. With respect to the applicant’s claims of past harm regarding sexual harassment and violence, the Tribunal made serious adverse findings regarding the applicant’s credit (CB 113 [51]):

   “51. The Tribunal considers it reasonable to expect that the applicant would be able to give consistent evidence about the occasions on which she was subjected to physical harm in India, whether or not she had contact with the police and complained about the sexual harassment she had experienced, whether she left her family home in late 2011 – early 2012 on return from Ludhiana or stayed inside the house, and the activities she engaged in when campaigning for the Congress Party; the fact she was not able to do so reflects poorly on her credibility and reliability as a witness. Considered cumulatively, the concerns the Tribunal holds about her credibility on these matters leads it to find she is not a witness of truth or a reliable witness and that at least part of the account of events on which her protection claims are based is false. In making these findings, the Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness and the manner in which responses can differ depending on the nature and manner of which a question is asked. It is also sensitive to the various cultural differences that can impact on an applicant’s responses to questioning, as discussed in the “Tribunal’s Guidance on the Assessment of Credibility”, and to the various issues that arise in relation to gender-related claims, as noted in its “Gender Guidelines”, which it is (sic) has carefully considered. However, the Tribunal does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led it to find that the applicant is not a witness of truth or a reliable witness”.

3. The Tribunal’s core finding was that the applicant was an unreliable witness, who provided inconsistent, contradictory and confused evidence about (CB 113 [52]):

   a)Her contact with the police;

   b)Remaining inside the family home upon her return to India in 2011;

   c)Her engagement in political activities in support of the Congress Party in late 2011 and early 2012; and

   d)A claimed sexual assault at her home in June 2009.

4. With respect to the applicant’s claim of sexual assault at her home in 2009, the Tribunal said that, “it considers she fabricated that claim in an attempt to strengthen her application at a point in the hearing when she felt a chance of receiving a successful outcome was in jeopardy” (CB116 [52]). This was a reference to the fact that, after the Tribunal had indicated doubts about her claims, and following a short recess in the Tribunal’s proceedings, the applicant introduced a new claim, that being a sexual assault in her home (CB107 to 108 [32]).

5. Notwithstanding the Tribunal’s credibility findings, in light of independent country information, the Tribunal stated that (CB 113 [53]):

   a)it was prepared to accept that the applicant had suffered some form of sexual harassment and abuse, including being groped on a public bus by a male passenger; by being subjected to lewd comments of a sexual nature by men in public and by male clients during her work as a dentist in Ludhiana; by a  male patient attempting to touch her while she worked in a clinic; and when men on a motorbike followed her whilst she was on a rickshaw, making lewd and suggestive comments to her of a sexual nature;

   b)it did not accept, given her otherwise inconsistent and unreliable evidence, that the applicant was ever physically harmed, touched or assaulted in any way, by any person in India, apart from the one occasion on the public bus when she was touched by a male passenger.

6. With respect to her claims relating to the Congress party, the Tribunal was prepared to give her the benefit of the doubt and accept that she and her family are supporters of the Congress party. However, given the unreliability of her evidence, it did not accept that she and her family were actively engaged in campaigning for the Congress party or that she or any member of her family experienced any form of harm or mistreatment because of their support for the Congress party.

7. The Tribunal then turned to consider whether there was a real chance the applicant would suffer serious harm on return to India. As the Minister has correctly submitted, this approach by the Tribunal reflected well established tests wherein, the Tribunal is required to identify the subjective fears of an applicant of persecution and then turn to consider whether objectively those fears are well founded.

8. The Tribunal identified the applicant’s claim, “that if she returned to the area to work as a dentist, she would be subjected to sexual violence, including by being raped, because she is a young single woman. She also claims on a more general level, that, as a young single woman, she would be vulnerable to sexual violence in the home area of Punjab.” (CB 115 [60])

9. The Tribunal referred to the information provided by the applicant, this being “several online reports concerning the sexual assault of women throughout India including various incidents of acid being thrown on women and young girls in Punjab, the high profile gang – rapes in Delhi and Mumbai, the increasing incidences of violence against women throughout India, and the incredible statistic that a woman is raped every 20 minutes in India” (CB 115 [60]). It also noted independent reports regarding widespread sexual assault in India, relevant legislation and the realities of  law enforcement for victims of rape (CB 116 [61] - [62]).

10. The Tribunal stated that (116 [63]):

    “63. The available independent information about the Punjab and north-western areas of India indicates that it is a patriarchal society, where women have less rights than men, and suffer numerous forms of sexual harassment and; indeed, the information indicates that sexual harassment is endemic throughout India, and that women are subjected to a variety of different forms of sexual violence throughout the country, including violent sexual assaults. Having carefully considered that information, the Tribunal accepts that there is a chance that the applicant would suffer serious harm through sexual violence in the reasonably foreseeable future in her home area of Punjab, however, it does not accept that the chance she would suffer serious harm in that way is a real chance. As noted above, she does not claim to fear harm in this regard arising from a specific set of circumstances, or relating to specific persons, but rather she fears harm from all men simply because she is a young single, woman. In this sense, the Tribunal considers her fears, while genuinely held, to be mere speculation, based on assumption and general fear of sexual violence which, in terms of “real chance” test pronounced by the High Court, are not well – founded because, in the Tribunal’s view, the available independent information does not support a finding that there is a real as opposed to a remote chance that, because of her membership of the particular social group of women, young single women, professional women or young single professional women, the applicant will be subjected to sexual violence that would constitute serious harm.”

1. The Tribunal went on to state that although:

   “ the chances of her being subjected to serious, gender – related harm are higher because of her relatively young age and marital status as a single woman, it did not accept that the available independent information indicates that the chance of her suffering serious harm, in the form of sexual violence, for these reasons is a real chance” (CB 117 [64]).

2. The Tribunal stated, with respect to this finding, that (CB117 [64]):

   a)available independent information does not indicate that women professionals or young single women in occupations, including dentists and doctors, are at a higher risk of being subjected to physical or sexual harm;

   b)available independent information did not indicate that there is a real chance the applicant would suffer serious harm if she returned and continued to work as a dentist, which it accepts she would do;

   c)there is the availability of police protection from such criminal acts;

   d)it considered it would be reasonable to assume that a professional workplace in which female dentists and doctors are employed would engage some form of security or take relevant precautions if its employees or staff members were at risk of harm including sexual harassment  from male patients.

3. The Tribunal then turned to consider the applicant’s claim that the ruling Akali Dal/BJP had subject Congress supporters to harm or threats of harm, including sexual violence on women. The Tribunal found that the independent information before it did not indicate any reports of such incidents in the recent past. Nor did it accept her claims that the government controls the media and these matters are not reported.

4. The Tribunal found that there was not a real chance the applicant would suffer serious harm from Akali Dali or BJP supporters for reasons of her, or her family’s support, of the Congress party in the reasonably foreseeable future (CB 118 [66]).

5. Accordingly, the Tribunal found that the applicant did not have a well- founded fear of persecution in India (CB 118 [68]).

6. Having found the applicant did not satisfy the criteria specified in s.36(2)(a) of the Act, the Tribunal then considered whether the applicant met the criteria specified in s.36(2)(aa) of the Act.

7. With respect to her claims to fear harm in the form of sexual violence, including sexual harassment, sexual abuse and sexual assault, the Tribunal found that, in light of its earlier reasons, there were no substantial grounds for believing that there is a real risk the applicant will suffer significant harm (CB 119[70]).

8. With respect to her claims to fear harm from Akali Dal/ BJP supporters, again in light of its earlier reasons, the Tribunal found that there were no substantial grounds for believing that there is a real risk the applicant will suffer significant harm in that way.

Consideration

1. I have earlier referred to the applicant’s submissions in relation to jurisdictional error. It seems to me that the gist of the applicant’s complaint lies with what she firmly believes are fundamental internal inconsistencies between:

   a)on the one hand, the Tribunal’s finding that there was a chance, that if the applicant were returned to India, she would suffer serious harm on account of sexual violence and the material before being localised and country information that sexual assault of women was widespread in India, that Punjabi women have less rights than men, that sexual harassment is endemic throughout India and the much-publicised gang rapes and murders of women;

   compared with

   b)on the other hand, the Tribunal’s ultimate finding that there was not a real chance the applicant would suffer harm in that way if returned to India. She took umbrage with the Tribunal’s description of her claims as mere speculation and not well-founded.

2. Aside from asserting that the Tribunal failed to consider localised information the applicant’s ground of judicial review is directed to the Tribunal’s reasoning, in light of its findings of facts. The applicant does appear to quibble with the weight given by the Tribunal regarding the material before it but she also asserted that given the findings of fact, the decision was so unreasonable that no reasonable Tribunal would have come to that conclusion. In other words, a Wednesday unreasonableness claim.

3. The Minster submits (at [20]  of its Contentions of Fact and Law) that:

   “20. In reaching its decision the Tribunal considered, and placed its own weight on, country information (CB pp 116/117 at [61]-[64]), and made findings of fact that were open to it, in particular that there was not a real chance of the applicant being subjected to sexual violence amounting to serious harm should she return to Punjab in the foreseeable future (CB p 117 at [63]), and that there were no substantial grounds for believing that there is a real risk that the applicant will suffer significant harm because she would be subjected to sexual violence on return (CB p 119 at [70])”.

4. I am satisfied that the Tribunal correctly understood the bases upon which the applicant claimed persecution. The question in this case is whether the Tribunal correctly understood how, in respect of each of the bases articulated, it should determine whether that fear is objectively well founded: Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (MZYTS) at [34].

5. The statutory task of the Tribunal in relation to s.36(2) is a predictive one. In MZYTS the Full Court stated at [33]:

   33.“The occasion on which the application of this criterion is to be considered is the prospect that a person currently in Australia will be returned to her or his country of nationality, the risks if any she or he might then face, and the reasons she or he may face those risks. It is, as the authorities have consistently emphasised, a predictive exercise involving speculation as to circumstances in the future on the basis of material in the present, and what has happened to the person in the past: Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 (Chan) at 391, 432; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 571-573”.

6. There is no doubt that the Tribunal did not accept that the applicant had been subjected to sexual violence, by which it meant serious sexual assault, when she was in India. It clearly accepted that she had been the victim of lewd comments and an incidence of groping on the bus. But the Tribunal did not accept the applicant’s claims that she was the victim of serious sexual assault, including rape. This finding arose from its view that the applicant gave unreliable evidence and fabricated the claim of rape.

7. The Tribunal did not, based on its adverse credibility findings, accept that the applicant or her family were active members of the Congress party.

8. Whilst the Tribunal did not accept that the applicant herself was subject to sexual violence, it did accept that sexual assault of women was pervasive in India It made this finding having regard to the material before it (largely independent country information) regarding aspects of Indian society and the impact of this on Indian women generally and women in the Punjab region.

9. It is against the country information regarding the widespread or generalised exposure of women in India to sexual assault and sexual violence, that the Tribunal made its findings as to whether the applicant objectively had a well-founded fear of persecution. It found that there was a chance that the applicant would be subject to sexual violence on return to India but it formed the view that this was not a real chance such as to constitute a well-founded fear of persecution because of sexual violence/assault. The Tribunal found that there was not a real chance that the applicant would be persecuted because the risk of harm arose from generalised (not specific) fear of harm from all men because the applicant is a young, single and professional woman.

10. The Tribunal did not accept that professional women were more likely to be the victim of sexual violence. Indeed, it is clear that its opinion was that there was likely to be more protection afforded to women such as the applicant in her workplace.

11. I do not find that, in relation to the applicant’s claimed fear of sexual violence, the Tribunal failed to correctly determine whether or not the fear was objectively open to her.

12. I am satisfied that the Tribunal reasons disclosed a consciousness of the localised information and actively considered this material. This is apparent from paragraphs [7], [37] and [60]. The weight the Tribunal gave this information was a matter for the Tribunal and not this Court, unless the decision was manifestly unreasonable: Tefonu Pty Ltd v Insurance & Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at p.374; Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 at [95].

13. The decision must be “so unreasonable that no reasonable person could have come to it”: see Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24 at p.41.

14. The applicant believes the decision was so unreasonable that no reasonable person could have come to it. I disagree. It was, in my opinion, open to the Tribunal to find that the generalised fear of sexual violence was not objectively well-founded (that is, that there is a real chance), given the Tribunal found the applicant had not suffered sexual violence in the past and its findings about the susceptibility of single professional women working in medical occupations to sexual violence.

15. The fact that a Tribunal, differently constituted may have reached a different decision is not decisive. The question is whether no reasonable person could have come to the decision. I am not prepared to  make this finding.

16. I am not satisfied the Tribunal’s decision is affected by jurisdictional error nor that its decision was made without jurisdiction.

Conclusion

1. For the reasons set out in my judgement, I will order that the application for review be dismissed and that the applicant pay the first respondent’s costs.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate: 

Date:  19 December 2014