MZYJT v Minister for Immigration
[2011] FMCA 154
•15 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYJT v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 154 |
| MIGRATION – Review of RRT decision – whether RRT failed to take into account a relevant consideration – whether psychiatric report is corroborative evidence of claims made – weight to be given such evidence – significance of an adverse finding on credibility – no jurisdictional error – application for review dismissed. |
| Migration Act 1958 (Cth), ss.91R, and 425 |
| Minister for Immigration and Citizenship v MZYHS [2011] FCA 53 |
| Applicant: | MZYJT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1348 of 2010 |
| Judgment of: | O'Dwyer FM |
| Hearing date: | 25 January 2011 |
| Date of Last Submission: | 25 January 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 15 March 2011 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the First Respondent: | Mr W. Mosley |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
That the application for review filed on 29 September 2010 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1348 of 2010
| MZYJT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By her application, the Applicant seeks a review of the decision of the Refugee Review Tribunal (the Tribunal) made on 2 September, 2010. In that decision the Tribunal affirmed an earlier decision of the First Respondent’s delegate not to grant the Applicant a Protection (Class XA) visa (the visa).
The Applicant appeared in person and was assisted by an Amaharic interpreter. She informed the Court that her application for review was prepared by a solicitor at Legal Aid, but further assistance to her in the prosecution of her review was denied. Although being present when directions were made by Registrar Caparole, she has failed to comply with them; in particular the direction that she provide contentions of fact and law. Her explanation is that she did not have the assistance of a lawyer. She acknowledged receipt of the First Respondent’s contentions of fact and law, but she did not understand the content and thrust of them.
I went through the stated grounds and invited her to make further comment or expand on them. It’s not unfair to say that her comments were limited to a re-agitation of her complaints about her treatment in Ethiopia and the failure of the Tribunal to accept them.
As is so often the case in these situations, where an Applicant with little command of English, and certainly very little understanding of the nature of the law applying, she struggled with the process and requirements to successfully prosecute a review that demonstrates jurisdictional error on the part of the Tribunal. It fell to the Court and the First Respondent, who is a model litigant, to tease out all possibilities for grounds for review to ensure that justice was done to the Applicant.
Background
The Applicant is an Ethiopian citizen who arrived in Australia on
12 March 2002 on a prospective marriage visa. She was subsequently refused a permanent spouse visa, a decision which was affirmed by the Migration Review Tribunal on 2 November, 2007 on the basis that the couple were not in a continuing genuine spousal relationship. She then applied for the visa on 20 December, 2007.
On 21 February, 2008 a delegate of the First Respondent determined the Applicant was not a person to whom Australia had protection obligations and refused the application. Thereafter followed two reviews before the Tribunal, each of which were unsuccessful, but which were later remitted to the Tribunal by consent. The Tribunal hearing, the subject of this review, was held on 12 July, 2010 and again the delegate’s decision was affirmed.
In her claims in support of the granting of the visa the Applicant maintained she had a well-founded fear of persecution if she was to return to Ethiopia on a number of Convention related grounds. She is, by ethnicity, an Oromo and this formed the bases of a number of claims supportive of a well-founded fear of persecution. She also claimed to be a Jehovah Witness. In summary, she claimed Oromos were bullied and discriminated against and were regarded as political opponents by Ethiopian authorities. She claims she faced persecution on the basis of her political opinion, either actual as a supporter of the Oromo Liberation Front (the OLF), or imputed to her because her father and brothers were OLF members. Additionally, she claimed persecution on the basis that she was a member of various particular social groups being, alternatively, women in Ethiopia, Oromo women, single women, Oromo women who are linked to OLF members, or women who are OLF supporters, and finally as a member of a particular social group constituted by her family.
The Tribunal’s Decision
In a comprehensive decision of the Tribunal dated 2 September, 2010, I am satisfied all her claims were thoroughly examined and, having made adverse findings about the Applicant’s creditability, the Tribunal rejected them.
In relation to the ethnicity claim, the Tribunal accepted that the Applicant was an ethnic Oromo and referred to country information which did not suggest that being of Oromo ethnicity of itself would automatically give rise to persecution. It accepted that the Applicant had experienced discrimination and bullying at school, but found that this did not constitute persecution under the Convention or serious harm under the s.91R of the Migration Act 1958 (the Act). The Tribunal accepted that the authorities did target Oromo people who were thought to be supportive of the OLF, but did not accept that the Applicant was a supporter of the OLF, or that her parents and siblings were members or supporters of the OLF. The Tribunal did not accept that the Applicant had been targeted by the authorities resulting in serious harm in the past, or would be so targeted if she returned to Ethiopia in the foreseeable future for reasons of her Oromo ethnicity. These were findings of fact which, in my view, were open to the Tribunal based upon the evidence presented.
When it came to the claim of persecution based upon her religion the Tribunal found that, for reasons expressed in detail in its decision, her claim of membership of the Jehovah Witnesses was directed at providing a pretext for refusing to undergo a DNA test and concluded that it did not accept the Applicant was or had been a member of the Jehovah Witnesses. In my view, this was a finding open to the Tribunal based on the evidence presented.
In respect of her claim based upon political opinion, either actual or imputed, the Tribunal found on the evidence given by the Applicant that her evidence in support of these claims was implausible and, having regard to the Tribunal’s view of the Applicant’s credibility, rejected them. In particular the Tribunal considered the claim by her of sexual assault, which it rejected. I emphasise this because the Applicant at the hearing recited the sexual assault and contended that the Tribunal did not consider it. This is clearly not so.
Speaking generally, the Tribunal, in my view, considered all of the claims that the Applicant made in support of her claimed persecution and gave cogent reasons for the rejection of her evidence and the claims she made. The Tribunal highlighted the inconsistencies in the evidence given by the Applicant, the implausibility of some of her accounts of what happened and her lack of credibility. Accordingly the Tribunal rejected the claims founded on the actual or imputed political opinion or for reasons of her membership of particular social groups, including that constituted by her family.
Although the Tribunal accepted the various particular social groups as contended by the Applicant of which she was a member, it rejected her claims under these various heads based on country information as to the circumstances of Oromo women in Ethiopia, its assessment of the Applicant as not being a member of the OLF, or a supporter or likely to have an imputed political opinion ascribed to her.
Significantly, for the purposes of this review, the Applicant, when before the Tribunal, relied on medical evidence of the psychiatric affects of her trauma and maltreatment in Ethiopia.
Grounds for Review
The Applicant set out two grounds for review.
Ground one
In summary, the first ground contended that the Tribunal failed to take into account relevant considerations; namely, the corroboration of her evidence about events in Ethiopia because of their psychiatric affect upon her and, further, to give due regard to the impact of her psychiatric condition on her capacity to give evidence. As I understood the contentions in these regards, the Tribunal failed to find the evidence of the psychiatrist collaborative evidence of the claims made, that evidence being predicated on the history given by the Applicant of what happened to her in Ethiopia and an assumption that her diagnosed psychiatric condition was consistent with the history she gave.
In addition, it was contended, as I understood the ground as articulated, that the vagueness and inconsistencies in the Applicant’s evidence could be explained by her psychiatric condition which, had the Tribunal given due regard to, would not have engendered the negative assessment of the Applicant’s credibility.
Ground two
The second ground, in summary, alleged that the Tribunal failed to fulfil its imperative duty under s.425 of the Act to review the decision of the delegate when it allegedly accepted conclusions of an earlier Tribunal differently constituted, and also failed to give an opportunity to argue against the Tribunal adopting such conclusions.
Consideration
In respect of the first ground the Tribunal was cognisant of and gave particular consideration to the psychiatric illness suffered by the Applicant and concluded that it was not corroborative of the facts as told to the treating psychiatrist of what happened in Ethiopia and went to some trouble to draw distinction between a recital of claims to a psychiatrist and the acceptance of the truth of such claims. Clearly a history said to have given cause to psychiatric illness is not validated because it is repeated by a psychiatrist and confirmed as likely to give rise to the symptoms complained of. It is not conclusive of the reality of the events said to give cause to the symptoms. The Tribunal addressed this issue and made findings of fact which was in its domain to do. It was open to the Tribunal to find that the claimed events upon which the Applicant sought to establish her refugee status did not happen.
The Tribunal also gave consideration as to how a psychiatric illness could affect the capacity of someone to give evidence and, having done so, concluded that the apparent inconsistencies and vagueness could be considered as supportive of an adverse assessment of the Applicant’s credit. It was open to the Tribunal on the evidence, in my view, to take into account the apparent inconsistencies and vagueness to make that adverse assessment of the Applicant’s credit, which in and of itself has serious consequences in evaluating and ascribing weight to the evidence presented and relied on by the Applicant.
Many of the issues raised by the Applicant’s first ground were discussed in Minister for Immigration and Citizenship v MZYHS [2011] FCA 53. In that case, her Honour Kenny J examined a similar contention and highlighted the authorities pertinent to the significance of and weight to be given to psychiatric evidence, both as to its corroborative value and by way of explanation for the manner in which evidence is given.
In relation to the second ground, simply put, there is nothing in the Tribunal’s decision which supports the contention that the Tribunal merely adopted the conclusions reached by a previous Tribunal which was differently constituted. A reading of the transcript of the Tribunal hearing clearly shows that the evidence given to and the conclusions reached by the previous differently constituted Tribunals were put to the Applicant for response. It is not correct to assert, as the Applicant does, that the Tribunal merely adopted those conclusions. The conclusions reached by the Tribunal were, indeed, those of the Tribunal as last constituted. There has been no failure on the part of the Tribunal to fulfil its imperative task under s.425 of the Act.
Conclusion
The grounds do not disclose on the part of the Tribunal any jurisdictional error. Accordingly, the application for review filed on 29 September 2010 must be dismissed.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of O'Dwyer FM
Date: 15 March 2011
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