MZZFU v Minister for Immigration

[2014] FCCA 212

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZFU & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 212

Catchwords:
MIGRATION – Application for review of Refugee Review Tribunal decision – primary grounds of application arising from gender of Tribunal member (male) in circumstances where primary applicant (female) raising sensitive personal matters – applicants legally represented at all times – no application for female to preside – Court listening to audio tape of hearing at applicant’s request – criticisms not made out – other grounds lacking in merit – application dismissed. 

Legislation:  
Migration Act 1958 (Cth), s.424A

FirstApplicant:

SecondApplicant:

MZZFU

MZZFV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 153 of 2013

Judgment of: Judge Burchardt

Hearing date: 6 December 2013

Date of Last Submission: 6 December 2013

Delivered at: Melbourne

Delivered on: 20 February 2014

REPRESENTATION

The Applicant: In person

Counsel for the First Respondent: Mr Wood

Solicitors for the Respondents: Clayton Utz Lawyers

ORDERS

1. The application be dismissed. 

2. The Applicant pay the First Respondent’s costs. 

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 153 of 2013

MZZFU

First Applicant

MZZFV

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introductory

1. The applicants, who are mother and daughter, seek judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 11 January 2013.  The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicants Protection (Class XA) visas. 

2. The application filed by the applicants’ lawyer on 7 February 2013 lists five grounds of review, with which I shall deal in turn in due course.  As matters developed at the hearing before the Court, however, perhaps the primary matter of emphasis pressed by the applicants was an assertion that the hearing had been flawed as a result of the fact that the presiding member was a man, given the sensitive nature of some of the materials raised by the first applicant including, most particularly, an alleged attempted rape of her. 

3. At the specific request of the applicants, I have listened to the entirety of the audio tape of the Tribunal hearing as well as reading the transcript in the Supplementary Court Book (“SCB”).  I will deal with the audio recordings later. 

4. For the reasons that follow, I do not think that the applicants’ case is made out.  The Tribunal did not fall into jurisdictional error, and it follows that the application must be dismissed. 

A Brief Recitation of the Application and its Various Hearings

1. The primary applicant is a Sri Lankan Tamil born 29 September 1961 who is married to a Sinhalese Sri Lankan.  They have two children, a son and daughter.  The second applicant, whose application was made as a family member, is their daughter.  I will refer to the primary applicant as the applicant. 

2. Both the applicants visited the primary applicant’s sister in Australia in 2010 on visitor visas.  They returned again in 2011, following which they lodged their application for protection visas. 

3. The applications were lodged with the assistance of a lawyer (the applicants have at all material times been legally represented), and at CB38-45, the applicant set out in some considerable detail the nature of her claims.  These claims essentially arose out of discrimination suffered by her as a result of her Tamil ethnicity.  The applicant also gave details at CB43 (albeit in fairly short form) of an attempted rape of her by “one of my neighbours with two unknown stranger” in October 2010.  The applicant also detailed generalised threats from unidentified parties and a concern that her children were in danger also.  She referred to a lack of proper assistance from the police upon her complaints. 

4. The applicant also filed in due course country information about disappearances of persons in Sri Lanka and correspondence from her husband, supportive of her claim (CB 95-110). 

5. The delegate made adverse credit findings in respect of the applicants, and in particular the primary applicant (CB128-129).  The delegate accepted that the applicant might face discrimination due to her Tamil ethnicity but did not think that the applicant’s profile was such that would render her vulnerable to mistreatment (CB132).  The delegate noted country information suggesting that Tamils in Colombo did not face “systematic problems”.

6. The delegate dealt with the second applicant’s application on the footing that “Applicant two has not made any specific protection claims” (CB126), and because her mother’s claim was dismissed, it followed that the second applicant’s was also. 

7. The applicant forwarded a further statement on 28 September 2012 via her lawyers (CB183-185).  This statement added further material.  The applicant asserted that she had recently found out that her mother‑in‑law and her husband’s brothers had come and asked her husband where her daughter and she were.  They were alleged to have threatened to kill the applicants if they returned to Sri Lanka, as had some neighbours. 

8. The statement also referred to having “major clashing problems with my mother‑in‑law and my brothers‑in‑law” and that “I have recently come to find out that the neighbours have been in partnership with my brother‑in‑law who is in the armed forces.”

9. The statement went on to say that these persons had gone to the applicant’s mother’s home and assaulted her mother there.  Further assaults of Tamil nephews were alleged, and it was asserted that the applicant’s son had been placed in hiding. 

10. The applicant also gave details as to why she had not spoken to more people about her attempted rape.  She asserted that if she returned to Sri Lanka, she would be likely to be murdered. 

11. Following the hearing before the Tribunal on 2 October 2012, the Tribunal wrote a s.424A letter to the applicants (CB196-198). It detailed two matters in respect of which the Tribunal referred to alleged possible inconsistencies in evidence.

12. The first inconsistency related to the fact that the applicant had not mentioned either in her original application, her interview with the delegate or her statement of 28 September 2012 the fact that her mother‑in‑law had allegedly doused her with kerosene two or three years ago and tried to set her on fire. This matter was raised only at the hearing before the Tribunal itself. The s.424A letter said that this inconsistency “may lead the Tribunal to decide that other information provided by Miss Fernando in support of the application is not credible”. 

13. The second inconsistency referred to related to inconsistencies between what the applicant had said at the Tribunal about the attempted rape.  The applicant stated that she was abducted by three men, including the lawyer who lived next door.  She also said that her own mother was beaten by the lawyer and the husband of one of her husband’s sisters, who is a lieutenant colonel in the Sri Lankan army, a couple of months before the hearing. 

14. The second applicant stated that she had been told about the attempted rape, that she thought the attempted rape occurred in late 2010 or early 2011 but was not sure who had attempted to rape the applicant but thought it was neighbours.  The second applicant also said that the applicant’s mother was beaten by neighbours when she, the second applicant, was 15 or 16 years old, then that the applicant’s mother was beaten shortly before the applicants came to Australia and, finally, that she, the second applicant, was mistaken because the applicant’s mother was beaten a couple of months before the hearing.  Once again, the Tribunal set out the possible credibility consequences of such inconsistencies.

15. The reply received to this request for information and comment is at CB206-207.  It is from Mr T A Fernandez, the second representative engaged by the applicants.  The letter, relevantly, first asserted:

    “Anyone acquainted with the cultural aspects of the mother‑in‑law and daughter‑in‑law relationship it will come as no surprise as to what (first applicant) suffered at the hands of her mother‑in‑law.”

16. The letter went on to say:

    “However, this pales into insignificance when the next point is discussed.  That is about the attempted rape on (applicant).

    It is confusing as to the manner in which the “apparent inconsistencies” have been mentioned by the tribunal.  For this reason the first bullet point of paragraph 2 says quite clearly “including the lawyer who lived next door who attempted to rape her” but the tribunal does say (second applicant) was not sure who had attempted to rape (applicant).  Again this has got to be looked at in a very sensitive cultural aspect and it was left to (applicant) to inform her daughter at the appropriate time what actually did occur.

    In this context the mother of (applicant) being beaten by the husband of one of her husband’s sisters to find out the whereabouts of (applicant) may fit into the evidence in this case.

    Be that as it may, and considering the trauma that (applicant) experienced, it may not be out of place to mention that the questions may have been better framed by a member of the opposite sex.”

A Brief Overview of the Tribunal’s Decision

1. The Tribunal set out the Application for Review, the Relevant Law and the Claims and Evidence.  The Tribunal’s summary of the applicant’s application in her application form at CB218-220 seems to me to be a fair one.  The Tribunal traversed the materials filed on the applicant’s behalf, the delegate’s decision and the applicant’s statement dated 28 September 2012.  The Tribunal then summarised the matters that had passed at the Tribunal hearing at CB222-231.  It is sufficient to say for these purposes that having read the transcript and listened to the audio tape, the recitation seems to me to be accurate.

2. The Tribunal then traversed the s.424A letter and the applicant’s response to it at CB232-234, and thereafter set out comprehensive Country Information at CB234-242.

3. It is fair to say that in its Findings and Reasons at CB242-248, the Tribunal come to comprehensive credibility findings against the applicants, and in particular, the applicant.  The Tribunal gave significant weight to the late disclosure of the claim by the applicant that her mother-in-law attempted to burn her with kerosene (paragraph 143, CB243). 

4. The Tribunal also found “highly implausible” the applicant’s claim that the applicant’s husband would not tell them where the applicant’s son was (paragraph 144, CB244). 

5. The Tribunal also noted discrepancies between the two applicants as to when the applicant’s mother was beaten (paragraph 143, CB244).  The Tribunal was sensitive to the youth of the second applicant, but found her an articulate and capable witness. 

6. In the light of all these credit concerns, the Tribunal had further significant doubts about the credibility of the account of an attempted rape.  The Tribunal gave “significant weight to the generalised understanding of the claimed attempted rape exhibited by the second applicant at the hearing and the witness’ lack of knowledge of the details of the attempted rape.  Even taking into account an understandable degree of reluctance by Sri Lankan Tamil women, such as the applicants, to disclose details of sexual assaults either to each other or to male authority figures, the tribunal finds, in light of its serious concerns about the applicants’ willingness to fabricate other claims, that the inconsistencies in the evidence provided by the applicants, as put to them in writing and at the hearing, significantly undermine the credibility of their claims that the applicant was the victim of an attempted rape and the credibility of their claims generally.  Accordingly, the tribunal does not accept that the applicant was the victim of an attempted rape by neighbours, the lawyer or any other individuals.” (paragraph 145, CB244). 

7. The Tribunal did accept that there had been disputes between the applicant, her husband and neighbours, including the lawyer but found that these had been grossly exaggerated.  The Tribunal further accepted that as a result of such difficulties, threats may have been made by neighbours to the applicants that may have included threats of harm.  The Tribunal, however, did not accept that those threats had ever been acted upon, and found that there was nothing other than a remote chance that they would be acted upon in the future (paragraph 15, CB245).  

8. In the light of these findings, the Tribunal went on to find that the applicant and second applicant were not at risk of Convention-related harm.  This finding extended to the claims of both of the applicants to run the risk of violence as Tamil women (paragraphs 151-152, CB245-206).  The Tribunal went on to consider the complementary protection criterion, and rejected the prospect that the applicants would face a significant risk of harm in that regard. 

The course of the proceedings in the Court

1. When the case was first listed for hearing on 18 November 2013, the applicant, who appeared assisted by a member of the Tamil community, sought an adjournment.  The adjournment was sought on the basis that Mr Fernandez, who was acting pro bono for the applicant, would know by January 2014 whether his health would have improved enough to enable him to conduct the case, or whether he would have to obtain someone else to do so.  The second reason was that the applicant was so stressed by the proceedings that she would not be capable on any view of representing herself in Court on that day. 

2. I gave an extempore judgment, which is on the Court file.  I accepted that the applicant was simply unable to proceed to present her case on that day.  I adjourned the matter until 6 December 2013 at 2.15 pm, which gave Mr Fernandez and/or the applicant about three to four weeks to find an alternative representative. 

3. The applicant did not in fact obtain an alternative representative, but written submissions prepared by Mr Fernandez were filed with the Court. 

4. At this juncture it is appropriate to turn to the grounds of application seriatim.  

Ground 1 The Tribunal erred by relying on country information that was not relevant to the Applicant’s case and further committed jurisdictional error by not providing the Applicants with a copy of the information that the Tribunal apparently relied upon.

1. The written submissions in respect of this ground repeat the terms of the ground itself.  They then refer to the transcript of the proceeding at p-9, where the Tribunal referred to having considered a range of country information about the circumstances in Sri Lanka. 

2. The written submissions refer to p-65 of the transcript, where the Tribunal said:

   “All right, well I will take into account what you are telling me and if you want to provide any country information in relation to that, I will consider it, all right?  I also note that there is no country information for me indicating that because a person is in a mixed marriage they are at particular risk of harm.  If you would like to provide that country information supporting that claim, I will take it into account.  But at the moment I do not have it.”

3. The applicant’s written submissions continue:

   “It is crystal clear from the above that the country information relied on by the RRT was not relevant to the applicant’s claim.  Had the RRT advised the applicant that this was information as seen on the decision record that the RRT was relying upon, the applicant would have notified the RRT that the said information was not relevant to the applicant’s claim.”

4. The written submissions of the first respondent assert that “it is not clear what country information the applicant says the Tribunal relied upon but was irrelevant (paragraph 15, written submissions)”.”

5. I accept the force of this submission, and I further accept that the country information set out CB234-242 and at CB245-246 was relevant to the question of the status and risks associated with being a Tamil and a woman in Sri Lanka.  Given that the second applicant, as well as the applicant, had made claims based on these considerations, the country information was plainly not irrelevant. 

6. What the written submissions of the applicant seem to do is to seize upon the fact that there was no country information relating to the circumstances of women in mixed marriages.  The submission then jumps to the conclusion that any other country information could not have been relevant.  This is not a logical progression. 

7. All the Tribunal was saying was that it had no country information on that particular issue, and that if the applicants forwarded it, it would be taken into consideration.  It did not in any way follow that the country information relating to Tamils generally and Tamil women in particular was irrelevant.  Furthermore, it is correct, as the first respondent says, that the gist of the country information was put to the applicant (T-61-65) and the second applicant (T-69-70) at the hearing.  This was in the circumstances, in my view, sufficient discharge by the Tribunal of its obligations.  It follows that the first ground is not made out. 

Ground 2 - In dismissing the Applicants case on the ground of credibility the Tribunal has failed to consider the integers of Applicants case.  In any event the rejection on the ground of credibility is illogical. 

1. The applicant’s written submissions do not identify any integer of the applicants’ cases the Tribunal is said to have overlooked.  Rather, what is objected to is the fact that the second applicant was excluded for part of the hearing although the Tribunal said initially that both applicants could remain throughout. 

2. Closer examination of the transcript shows, however, that the Tribunal member expressly changed his mind.  At T-25, the Tribunal recorded:

   “All right.  I think what I’m going to do is, I’m actually going to – I’ve changed my mind;  for part of the hearing I’m going to ask you to wait outside and then I’m going to check the evidence that you give against what your mother gives.  And really, with a case like this – I should say, under the law, if there are significant differences that I think may lead me to doubt the truth of something you’re telling me because of differences between what you have said, I need to put that information to you in a particular way.  And in this case I think the way we will deal with that, if it arises, is I will do that in writing after the hearing because otherwise, I would have to put it to you, and then put it to you.”

3. It is clear from a reading of the transcript that the Tribunal had reached a stage in the evidence where the Tribunal member felt it appropriate to bring into operation what is generally known as the rule for witnesses out.  This was a matter of procedure wholly within the proper purview of the exercise of the Tribunal’s functions.  There was nothing inappropriate about it. 

4. It follows that the second ground is not made out. 

Ground 3 - The Tribunal has misunderstood the fact of having a female member of the Tribunal hear this application.  In view of the Applicants submission prior to the decision being taken the Tribunal ought to have not considered this matter any further which it did, thereby constituting a jurisdictional error.

1. This matter was raised in an oblique way in Mr Fernandez’ response to the s.424A letter. The Tribunal commented on it in its reasons for decision. Having traversed the fact that the inconsistencies identified by the Tribunal in the s.424A letter were not the subject of direct response from Mr Fernandez, the Tribunal continued at paragraph 142, CB243:

   “The tribunal has considered the submission made by the representative in the last paragraph of the letter quoted at [120] above.  The tribunal understands the submission to be a tentative suggestion that the applicants should have been questioned in relation to the claimed attempted rape by a female rather than male questioner.  The tribunal notes that the applicants were represented at all times in relation to the application for review and that publicly available tribunal documents confirm that, where appropriate, applicants and representatives may request that applications for review be constituted to members of a particular gender.  The tribunal notes that no such request was made by or on behalf of the applicants at any time before the letter from the second representative was received.  Nor did the applicants or the representative state during the hearing that they felt the gender of the presiding member affected the applicants’ capacity to give evidence in relation to the claimed sexual assault.”

1. The assertions made by the Tribunal member in that passage are all plainly correct. 

2. At the hearing before the Court, the applicant referred to the sex of the Tribunal member, and said that she would have been more comfortable with a female.  She said that the Tribunal was asking about personal problems, and she was not comfortable answering.  She said if she had not been under stress, she would have answered properly, and requested the Court to listen to the entirety of the audio recording of the Tribunal hearing. 

3. I have, as I have already indicated, listened to the entirety of the audio recording.  There is no doubt that, during the relatively short passage the applicant was giving evidence about the attempted rape, she becomes stressed, and it would appear from the recording she became labile and distressed. 

4. Nonetheless, and bearing in mind the cultural sensitivities which might overlay an experience which would distress any woman in any event, the fact is that the applicant was able to give her evidence.  Neither she nor her lawyer at any stage sought that the proceedings be stood down or adjourned.  Nor has the applicant articulated, beyond a general assertion that she would have been better able to answer questions had she not been so distressed, what further evidence she would have given that might have been more persuasive in any event. 

5. I accept that the giving of such evidence must have been a distressing and stressful experience for the applicant.  But there is nothing in the course of events that suggests that the Tribunal fell into error in conducting the proceeding in the way that it did. 

6. The written submissions of the applicant relevantly state:

   “4.    The third ground of the application is, that the RRT has misunderstood the fact of having a female member of the Tribunal hear this application.  In view of the applicant’s submission that prior to the decision being taken by the Tribunal, the Tribunal ought not to have considered this matter any further which it did and thereby constituting a jurisdictional error.  In relation to this ground the applicant would invite this court not to read the transcript but to hear the CD (transcript) in relation to the applicant’s claim.  This request for a female member to hear this matter was made prior to the decision being taken, instead the Tribunal having pursued this matter constituted a jurisdictional error, and a the same time displaying a level of cultural insensitivity.”

7. Mr Fernandez’s letter never went so far as to request that a female member of the Tribunal hear the case.  As already indicated, no such application was ever pressed either before or at the hearing, and there is nothing in the materials before the Court to suggest that there was a request that the matter be heard by a female after the hearing was concluded.  The factual assertions underpinning this ground are simply not made out. 

Ground 4 - The Tribunal has erred in its assessment of the complimentary protection criterion in relation to the Applicants.

1. The applicant’s written submissions assert:

   “5. The fourth ground is as follows, the Tribunal has erred in its assessment of the complementary protection criterion in relation to the applicants. This ground needs no elaboration but simply a reading of the relevant sections of the complementary provisions of the Migration Act which clearly establish that the yard stick is not as the same as a protection assessment.”

2. At the hearing itself, the Tribunal made clear to the applicants the difference between the Refugee Convention aspect of their application and the complementary protection criterion.  The relevant section of the transcript is set out in paragraph 31 of the first respondent’s written submissions. 

3. The Tribunal set out at paragraph 157, CB247, the nature of the test in complementary protection.  The discussion of the issue at paragraphs 158-161, to my mind, shows that the Tribunal well understood the nature of the complementary protection criterion and applied it to the facts of the case as it found them.  This ground is not made out. 

Ground 5 - The Tribunal has failed to consider the evidence as a whole and has instead formed its own personal opinion in relation to the Applicants claims which is a jurisdictional error. 

1. The applicant’s written submissions assert:

   “6.    The last ground is that the RRT has failed to consider the evidence as a whole and instead formed its own personal opinion in relation to the applicant’s claim and thereby fell into jurisdictional error.  The Tribunal selectively applied the materials detrimental and not relevant to the applicant’s claim and discarded what is relevant.”

2. A claim put at this level of generality is difficult to sustain.  The fact is that the Tribunal formed adverse credit findings in relation to the applicants on the basis of evidence and conclusions that seem, to me, open to it in the circumstances.  I accept the submission of the first respondent at paragraph 32 of the written submissions that “This ground of review is hopeless.  It perhaps seeks merits review; in any event, it does not identify any sensible ground of judicial review.”

3. In my view, the Tribunal’s findings were well open to it on the materials and this ground is not made out. 

An additional matter raised by the applicant at Court

1. I have already dealt with the applicant’s assertions of discomfort with the sex of the Tribunal member, which constituted the bulk of what she had to say.  The applicant did, however, also assert that the country information was wrong and that there were significant difficulties between the Tamil and Singhalese communities.  Whether this is intended to mean the Tamil and Singhalese communities generally or, more particularly, a Tamil woman like herself married to a Singhalese man, was not entirely clear to me, although my notes may be inadequate.  Nonetheless, I should make it clear that the country information referred to by the Tribunal seems to me, fully, to justify the findings that the Tribunal made based upon it. 

The audio tape

1. I have, as already indicated more than once, listened to the entirety of the audio tape recording.  The three CDs run to something slightly over three hours. 

2. The recordings show that the Tribunal conducted the matter in a commanding and relatively assertive way.  There are times at which the Tribunal member talked over the applicant in particular, whose English was, it seems to me, markedly less fluent than that of her daughter.  I would accept the characterisation of the second applicant’s evidence as cogent and clear, as the Tribunal found it. 

3. I also note one or two occasions when the Tribunal put matters to the applicant in a fashion in which something akin to humour appears almost to intrude, in circumstances where this did not seem, to me at least, to be appropriate. 

4. Nonetheless, while there were some aspects of the conduct of the Tribunal hearing that seem to me to be slightly unattractive, one has to see this matter as a whole.  The reality is that the Tribunal member went to considerable trouble to explain the nature of the process and the various legal issues to the applicants.  The Tribunal member’s conduct of the proceeding was, taken overall, in my view, such that it could not possibly be said that the applicants did not get a fair and proper opportunity to present their case. 

5. I should make it clear, if I have not already been able to do so, that the Tribunal’s conduct in relation to the taking of the evidence about the alleged rape was in no way, as far as I could hear it, in any way inappropriate or insensitive. 

6. Further, it should be noted that the applicants were at all times represented by a qualified practising lawyer, who was present throughout the entirety of the proceeding.  No objection to any aspect of the proceeding was ever taken and no application for timeout, for example, was ever pressed. 

7. In my view, the audio recording simply does not make out the specific matter asserted by the applicant (namely, the outcome would have been likely to be different, both as to the evidence she would have given and as to the conclusions the Tribunal drew, if the Tribunal had been constituted by a woman).  It is also not made out in the overarching sense with which I have been concerned, namely, whether the Tribunal member acted fairly and gave the applicants a proper opportunity to present their case.

Conclusion

1. For the above reasons, the applications are not made out. 

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  20 February 2014