SZAFW v Minister for Immigration

[2003] FMCA 446

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAFW v MINISTER FOR IMMIGRATION [2003] FMCA 446

MIGRATION – Review of RRT decision – application for a protection visa – where the applicant claimed to have a well founded fear of persecution for reasons of imputed political opinion – where the applicant claims that the Tribunal had not considered all the matters raised by her – whether the Tribunal fell into error by failing to consider the applicant’s claim that she belonged to a particular social group – whether the Tribunal ignored relevant material – whether the Tribunal failed to give the applicant an opportunity to respond to certain information – where the Tribunal made a finding on changed circumstances – whether there has been a breach of procedural fairness or jurisdictional error.

WAEE v Minister for Immigration [2003] FCAFC 184
SGBB v Minister for Immigration [2003] FCA 709
Lobo & Ors v Minister for Immigration [2003] 200 ALR 359
Dranichnikov v Minister for Immigration [2003] HCA 26
SCAL v Minister for Immigration [2003] FCA 548

Applicant: SZAFW

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 282 of 2003

Delivered on: 13 October 2003

Delivered at: Sydney

Hearing date: 30 September 2003

Judgment of: Raphael FM

REPRESENTATION

Counsel for the Applicant: Mr P Braham

Solicitors for the Applicant: Ms J Downie, Law Society of NSW

Counsel for the Respondent: Mr R Beech-Jones

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs assessed in the sum of $5,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 282 of 2003

SZAFW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant is a widow of Sierra Leone nationality who arrived in Australia on 13 October 2000. On 17 November 2000 she lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 13 February 2001 a delegate of the Minister refused to grant a protection visa and

   
   

   1 March 2001 she applied for review of that decision by the Refugee Review Tribunal. The Tribunal interviewed the applicant at a hearing on 25 June 2002. The applicant was there represented by RACS who made submissions of her behalf and who provided the Tribunal with further written submissions on 28 June 2002 [CB 80-83] plus additional material. On 1 July 2002 RACS provided the Tribunal with a further short submission and additional material [CB 98-102]. The Tribunal came to its conclusion on 2 July 2002 and handed it down on 25 July 2002. The Tribunal affirmed the original decision of the delegate.

2. The applicant was born in Freetown in August 1956. She is of Fullah ethnicity, a Muslim, and a widow with eight others in her family unit (two daughters, one son, two stepsons, a step-daughter, an adopted daughter and a step grand-daughter). She advised the delegate that she had worked as a nurse between July 1980 and September 1997, and lived in Freetown from 1995 until May 1999, and in Conakry Dee between December 1999 and October 2000.

3. The circumstances in which the applicant claimed to have a well-founded fear of persecution for a Convention reason commenced in January 1999. At that time her husband was the Fullah Chief in Freetown and was an Imam at the mosque. He had friends that were in the RUF rebel group although he was not a member himself. These people would seek his advice as an Imam and he was therefore identified with the RUF. In January 1999 the rebels took over Freetown and for about five weeks until 18 February 1999 eight rebels forced themselves into the house occupied by the applicant and her family and remained there. On 18 February 1999 the government drove out the rebels. The government troops came to seek out persons who they believed had assisted the rebels including the applicant’s family. The government’s troops and Kamajors beat up the applicant’s husband and killed him. They then burnt her house and abducted her younger daughter. The applicant and her family were physically attacked and her son was injured with a machete. The next day the applicant and her family went to Guinea where they stayed in a refugee camp for about six weeks. The applicant came back two or three times to try and find her daughter without success. In December 1999 the applicant went to live in Conakry Dee. At one stage she was recognised as the wife of the Imam and was physically attacked but managed to escape without serious harm.

4. The applicant had a person she described as a ‘nephew’ although he is in all probability her cousin or second cousin named Mr Hassan Barrie. Mr Barrie had been a Minister in the former junta and had been tried and sentenced to death by the government forces. When the rebels attacked the prison in which he was being kept, he escaped. Later he returned to Freetown and had returned to take up his former engineering position in the electricity department. The applicant believes that she will be targeted for retribution by the current Kabbah government because of her association with Mr Barrie who had been an Under Secretary in the Koroma government. The Tribunal noted at [CB 125] that the junta leader himself, Johnny Paul Koroma, is now at liberty in the country was a candidate in the 2002 Presidential elections. It found that it was obvious that by 2002 there had been a spirit of reconciliation which had allowed Mr Koroma to be rehabilitated.

5. In its findings and reasons the Tribunal said at [CB 125-126]:

   “While the Tribunal accepts that the applicant was imputed with “pro-RUF” opinions in 1999, and suffered because of that at that time, much has changed since there. The situation in the country has been steadily improving over the past two years, to the extent that the civil war has now been over for some five months. A reconciliation process has been under way for a considerable time, and former combatants of the RUF have been disarmed and are being re-integrated into normal society.

   The Tribunal notes that, apart from several incidents of verbal abuse, and a single incident of what the Tribunal considers to have been a minor physical attack in 1999, the applicant has not suffered harm in Sierra Leone since February 1999. She was able, therefore to reside in the country between December 1999 and October 2000 without harm coming to her. Although she claims that she travelled to Australia as part of Sierra Leone’s Paralympics entourage which was arranged by a friend, she was able to do so under her own name, and using her own passport without any apparent difficulty.

   The Tribunal notes that the DFAT advice quoted by the applicant’s agent in her submission lodged on 1 July 2002, referring to “take-outs” of individual rebel returnees was dated in February 2001, at a time when the war was still officially in progress. Much has changed in the ensuing sixteen months. Moreover, that advice indicated that the majority of those “take-outs” were of “significant players in the rebel movement.” On the basis of her own evidence, the applicant falls far short of not what could be described as a “significant player.”

   In these circumstances, the Tribunal finds that the applicant would not be at risk of persecution on the basis of her having been forced to accommodate RUF rebels more than three years ago, should she return to Freetown, either now or in the reasonably foreseeable future. In these circumstances, it is not necessary to consider whether or not the applicant would be without the protection of a male family member, and, if so whether such a lack of protection would exacerbate her situation.

   The Tribunal notes the continuing instability in neighbouring Liberia, but considers that the growing consensus for peace in Sierra Leone and the continued commitment of the international community, manifest in the presence of UN peacekeeping troops, is such as to ensure continued stability in Sierra Leone. Even if events in Liberia were to result in fighting in Sierra Leone, the Tribunal considers that the applicant’s association with the RUF was sufficiently brief and sufficiently in the past as to no longer set her apart from the population at large and make her a target for action on the basis of her perceived political opinion.”

6. The applicant argued that the Tribunal did not complete its review of the primary decision. It did not do so because it did not consider all the matters and arguments which were put before it. She relies on the dicta of the Full Bench in WAEE v Minister for Immigration [2003] FCAFC 184 at [45]:

   “If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty

   …such an error is a jurisdictional error: WAEE at [52].”

   The applicant claims that the Tribunal’s decision discloses no reference to, or consideration of, the applicant’s claim to fear persecution because of her husband’s association with rebels. She argues that the failure to consider a claim to belong to a particular social group or to fear persecution for a specified reason is capable of being a jurisdictional error bringing the decision outside s.474; SGBB v Minister for Immigration [2003] FCA 709.

7. The applicant says that in her statement to the delegate found at [CB 16-20] she says inter alia:

   “The Kamajor, the government security have killed my husband, if they see me they will killed me and even the civilian may kill me. Because if somebody is accused of being a rebel or even a rebel sympathiser the person will be killed…they will harm and mistreat me because they have seen the real rebels in my house and people have concluded that I am a rebel and in Sierra Leone people are angry at the rebels…my husband was a tribal chief, he was accused of being the rebel sorcerer just because people came to him for advice as he was well verse in the Koran. As such he was hated for that and he was killed for that. If anybody is accused of being a rebel or is suspected of being a rebel he will be in dangerous situation because the government will want to kill him or her…the government will not protect me, they killed my husband and burnt our house down. I don’t trust that they will do anything to protect me.”  

8. The applicant argues that in failing to consider whether the applicant was a member of a social group comprising family members or spouses of rebel advisers or spiritual leaders or persons perceived to be such, it failed to consider the most substantive aspect of the applicant’s claim to have a well-founded fear of persecution. She argued that instead of considering her as the spouse of a person with rebel associates, who was actually killed for those connections in February 1999, it had only considered her as a person who for one isolated period was forced to accommodate rebels in her home. She argues that the Tribunal looked at the beating up she received in Conakry Dee as an isolated and not serious incident. Whereas she would argue that it was corroboration of her claim that she could be the subject of persecution because she had been the wife of a person who had been reputed to be associated with the rebels.

9. The respondent argues that the applicant did not claim that her association with her husband was something that attenuated or increased the likelihood that she would be suspected of supporting the rebels. To the contrary, she emphasised the only conduct her husband engaged in was to give some advice and he just happened to be an old friend of some of them who were rebels but he nevertheless was harmed. Thus she referred to the fact that he had “not been active in anything” [CB 18] and he was killed “just because the people came to him for advice” [CB 19]. She did this with a view to demonstrate that even the briefest contact with the rebels could lead to harm. The respondent argued that the applicant at no time claimed that she was a member of a social group comprised of family members of persons who were suspected of being rebel associates. The respondent argues that the submissions of the applicant misconstrue the claims that were made on her behalf. It argued that in referring to her husband’s circumstances the applicant did not claim that she faced a further risk because she was married to him. Instead she sought to draw an analogy between the remote connection that her husband had with the RUF rebels and her own circumstances. She was in effect saying “look it happened to my husband, it could to me.” The respondent argues that because of the manner in which the applicant put her claim there was no basis upon which the Tribunal could have in its own right, much less be obliged to, consider whether she was a member of some social group comprising “family members or spouses of rebel advisers or spiritual leaders or people to be perceived as such.” The respondent argues that the applicant did not say that she feared harm for membership of such a group and there was no contention advanced before the Tribunal there was such a social group. There was no independent evidence before the Tribunal suggesting persons were singled out by anyone by reason of their membership of this particular group.

10. The applicant was represented before the Tribunal by a highly experienced and well-respected organisation who made submissions on her behalf. At [65] their submissions stated:

    “The applicant advises that she still fears returning to Sierra Leone as she believes she will be harmed on the basis of an imputed political opinion against the government. The applicant’s fear is based on the killing of her husband, burning of their house and abduction of their daughter for this reason. The current government in Sierra Leone is controlled by the same party and leader as during the time when the abuses against her husband and child occurred.”

    There is nothing in this submission which suggests that her fear is based upon her being the widow of an imputed rebel sympathiser. From this document her fear does appear to be based upon rebel sympathies imputed to her. But perhaps this is a distinction without a difference. Her fear is of persecution by persons either in the government, or whom the government would not prosecute, who wish to avenge themselves upon the rebels and those persons associated with them. Does it matter whether she is associated with the rebels because of her husband or because of an opinion that is imputed to her directly? The fear is the same, the persecution would be the same. I cannot be satisfied that this alleged failure by the Tribunal constitutes the type of failure defined in the extract from WAEE set out above.

11. The applicant advances an argument that the Tribunal failed to correctly construe the criteria prescribed by the Act in relation to her ability to remain safely in Sierra Leone. This created a jurisdictional error sufficient to bring the decision outside s.474 (Lobo & Ors v Minister for Immigration [2003] 200 ALR 359 at [43] and [62]). She argues that in the present case the Tribunal noted that apart from several incidents of verbal abuse and a single incident which it considered to be minor, being a physical attack in 1999, the applicant had not suffered harm in Sierra Leone since February 1999. The Tribunal observed that the applicant had therefore been able to reside in the country between December 1999 and October 2000 without harm coming to her [CB 126]. The Tribunal used these findings to come to the conclusion that the applicant did not have a well-founded fear of persecution. But the applicant argues that the Tribunal came to this conclusion having omitted a critical factor. The critical factor was that the applicant had given evidence that she only existed in safety because she wore a veil. The applicant argues that the Tribunal must have misunderstood the meaning of persecution if it found that she was not being persecuted provided she went around disguised. In other words you cannot argue that a person is safe from persecution merely because that person has established that she can live safely provided no-one can recognise her.

12. The applicant’s evidence concerning the veil is found at [CB 18] where she stated that she used to mask herself to go around, at [CB 20] where she says it is hard to live under fear and to have to hide in my own country and at [CB 40] where her adviser says:

    “She stated that she could travel back and forth freely by disguising herself with a veil over her face.”

13. I think there is considerable force in Mr Braham’s argument on behalf of his client in relation to this matter. But it would only be of assistance to him if the Tribunal had found that things had not changed in Sierra Leone since the applicant had left. The Tribunal came to a contrary conclusion. At [CB 126] it states:

    “Much has changed in the ensuing sixteen months [since the applicant left]”.

    I have already extracted this passage from the Tribunal’s decision at [5] above. It seems to me that the determinative factor in the Tribunal’s decision in this regard is the finding of fact that the applicant would not be in any danger if she returned to Sierra Leone because of the change in situation. The fact that she might have been in danger had she not disguised herself during the period in which she remained in Sierra Leone is therefore not to the point

14. The final submission made on behalf of the applicant is that the Tribunal failed to provide her with procedural fairness because it took into account factual material that was not placed before her and to which she did not have access. In this regard she refers to the material concerning Mr Hassan Barrie discussed at [CB 121]:

    “Next, the Tribunal referred to the case involving her “nephew”, indicating that it had seen documents suggesting that he was, in fact, one who held an office under Koroma junta. The applicant agreed that her nephew had done what he was accused of, and that he was not arrested on false charges. The Tribunal said it had also seen information suggesting that Barrie had been released from custody in 2000 and had returned to take up his former engineering position in the electricity department. The Tribunal said that this information suggested that her nephew was no longer a person of adverse interest to the Sierra Leone authorities, and asked the applicant to comment. She said she was unable to do so as she had heard nothing of him since he left prison in January 1999.”

    The document which the Tribunal referred to is found at [CB 267] and is an email passing between two unknown persons. In reference to Mr Hassan Barrie it says this:

    “You mentioned Hassan Barrie. I haven’t seem him for a long time. You know he was one of those arrested, tried and convicted after the restoration of the Tejan Kabbah government in 1998. He was released about a year ago, and took up his engineering position at National Power Authority. I would ask Andrew Keilli about him. Since he was released, I haven’t asked him about his role in the AFRC junta.”

    I cannot see what unfairness has been inflicted upon the applicant in relation to this matter. She may not have been shown the email itself but she was certainly given the only piece of information that is in any way relevant in it. She was given an opportunity to comment upon that information. She did not do so because she was unable to not having heard from him. That situation would not have changed if she had seen the document.

15. The applicant also argued that the Tribunal had failed to consider the applicant’s claim to fear persecution as a woman without male support. This claim was made by the applicant’s advisers in the last line at [CB 64] and is referred to by the Tribunal in its reasons at [CB 114]. It was also the subject of debate with the applicant found at [CB 121]. As the Tribunal pointed out, it was not correct to say that she had no male person to protect her because she had three adult brothers, two adult step-brothers, an adult step son and two sons. It is correct to say that there is no further specific reference to this matter and the claim is not specifically dismissed in the findings and reasons. This is because as said at [CB 126]:

    “The Tribunal finds that the applicant would not be at risk of persecution on the basis of her having been forced to accommodate RUF rebels more than three years ago, should she return to Freetown, either now or in the reasonably foreseeable future. In these circumstances, it is not necessary to consider whether or not the applicant would be without the protection of a male family member, and if so, whether such lack of protection would exacerbate her situation.”

1. It could be suggested that here the Tribunal has confused two different types of claim. Was the applicant claiming that any woman without male protection was in danger in Sierra Leone or was she claiming that in her particular position being a person to whom rebel sympathies had been imputed she was in particular danger without male protection? At [CB 66] her representatives say:

   “We submit that based on her previous experiences of harm and human rights violations and the current threat of instability in Sierra Leone, the applicant’s fear of persecution is both subjectively and objectively a well-founded one. We submit that her fear is increased if forced to return as she will also be vulnerable as a single woman.”

2. It seems to me that the Tribunal may well have considered the “single woman” aspect as attached to the imputed political opinion claim and that this was understandable given the manner in which the claim was made as previously set out. As was noted by Kirby J in Dranichnikov v Minister for Immigration [2003] HCA 26 at [78]:

   “The function of the tribunal, as of the delegate, is to respond to the case that the applicant advances.”

   And further by von Doussa J in SCAL v Minister for Immigration [2003] FCA 548 at [16]:

   “neither the delegate nor the tribunal is obliged to consider claims that have not been made.”

   I am of the view that in circumstances where the applicant was represented, where the type of claim now sought to be advanced is one frequently advanced and well supported by evidence, where the claim was not clearly articulated and so supported, the Tribunal should not be held to have fallen into error by not considering it. To the extent that any finding that I may make against the Tribunal would involve consideration of the exercise of discretionary powers I would have to say that I could not be satisfied that the Tribunal would come to any different conclusion on this matter given the exchange between it and the applicant about her male protection by which I have quoted at [15] above.

3. I have considered all the matters raised by the applicant and I am unable to find that the Tribunal erred in the manner in which it came to its conclusions. I dismiss the application. I order that the applicant pay the respondent’s costs which in view of the complexities raised I assess in the sum of $5,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court rules.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  13 October 2003