SZBSE v Minister for Immigration - [2005] FMCA 493

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBSE v MINISTER FOR IMMIGRATION

[2005] FMCA 493

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal erred in taking erroneously narrow view of Refugees Convention nexus – whether Tribunal should have considered and formed a view about supporting statements before assessing the applicant’s credibility – whether the Tribunal fell into jurisdictional error in finding an inconsistency in evidence.

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
SVHB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 18
Minister for Immigration & Multicultural Affairs v Rajalingham (1999) FCR 719

Applicant:

SZBSE

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG2231 of 2003

Judgment of:

Barnes FM

Hearing date:

24 March 2005

Delivered at:

Sydney

Delivered on:

24 March 2005

REPRESENTATION

Counsel for the Applicant:

Mr B Zipser

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Mr J Smith

Solicitors for the Respondent:

Clayton Utz

ORDERS

That the application is dismissed.
That the applicant pay the respondent's costs set in the amount of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2231 of 2003

SZBSE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

The applicant seeks review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 25 September 2003 affirming a decision of a delegate of the respondent not to grant her and her two children protection visas. The background to this application is that in December 2000, the applicants, nationals of Bangladesh, applied for visitors visas to come to Australia. They arrived in Australia in February 2001 and in March 2001 the applicant mother applied for a protection visa. Her children were included in the application as members of her family unit. The application was refused. The applicants sought review by the Tribunal and the applicant mother (referred to for convenience as the applicant) attended a Tribunal hearing. In the course of the application and the review application the applicant provided a number of documents to the Department and Tribunal in support of her application. In essence she claimed to fear persecution in Bangladesh for reasons of religion and her membership of a particular social group. She claimed to be a Christian. Her claims to fear persecution arose from her marriage to a Hindu, claimed mistreatment by him and pressure by him that their children be raised as Hindus while she wanted them to be raised as Christians.
The applicant seeks review of the Tribunal decision claiming that the Tribunal fell into jurisdictional error on three separate bases. It is convenient to consider the nature of the applicant's claims in more detail as they relate to each of these grounds of review.

the ‘lack of Convention nexus’ issue

The first ground of review is that:
“The Tribunal found that the applicant's evidence does not support a finding to the effect that [her husband] was persecuting the applicant mother for reasons of her being Christian. The Tribunal fell into jurisdictional error in making this finding.”
The applicant made various claims in relation to treatment that she had received, or feared receiving, from her husband. Relevantly she claimed that her husband pressured her to renounce Christianity and to become a Hindu and punished her for continuing to practise as a Christian. This aspect of her claims was dealt with by the Tribunal in its finding that while such claims might be regarded as having a Convention nexus, her claims were based on such inconsistencies that the Tribunal could not accept them. No issue is taken with this finding. The applicant also claimed that in October 1998 her husband pressured her to obtain a large amount of money from her parents. As was acknowledged in the written submissions for the applicant, there were difficulties in establishing a Convention nexus for such an incident.
However, the applicant takes issue with the Tribunal findings in relation to the applicant's claim that her husband pressured her to raise her children as Hindus and threatened and harmed her because she resisted having her children raised as Hindus and instead raised them as Christians. It was submitted that the Tribunal dealt with this claim, at least in part, in stating:
In any event, the claims against [the applicant's husband] lack a vital Convention nexus. The applicant's evidence does not support a finding to the effect that [the husband] was persecuting the applicant mother for reasons of her being a Christian… Although [the husband] allegedly changed his mind, as the birth of the applicant's son approached, it was allegedly over something the applicant mother did, in choosing to resist having their children raised as Hindus. In fact she did more than merely resist letting him alone decide their religious upbringing: she herself deviated from their original agreement and had them raised as Christians. Because this is not about what the applicant mother was, but about what she was perceived to have done or be doing, it is not about her right to profess her religion.
It was contended on behalf of the applicant that the Tribunal fell into error in making this finding because the applicant had claimed that one reason her husband harmed her was because she wanted to raise her children as Christians and she resisted his desire to raise them as Hindus. The applicant takes issue with the Tribunal finding that the harm experienced by the applicant was not for reasons of religion in these circumstances. It was submitted that this finding by the Tribunal was wrong and demonstrated an erroneously narrow view of the requisite Convention nexus.
However, as pointed out by counsel for the respondent, there are a number of difficulties with this claim.
First the quote relied on by the applicant is incomplete and is not the only material relied on by the Tribunal in making the finding in issue. The Tribunal addressed the Convention nexus of this aspect of the applicant’s claims in stating, after the second sentence quoted: “This is because the claims show that far from persecuting her for her religion, he turned his back on family and tradition and married her. This, rather, is evidence of a rejection of anti-Christian prejudice”. The Tribunal also went on to say that there was no evidence that the husband persecuted or threatened to persecute other Christians just for being Christian (and in particular did not persecute the children, let alone for being Christian). The applicant’s written submissions on this ground, which were not elaborated on in oral submissions, do not establish that the Tribunal fell into jurisdictional error in finding that this aspect of the applicant’s claims lacked a Convention nexus.
In any event, the main difficulty for the applicant is that it is clear from the Tribunal reasons for decision that it did not accept any of the claims to fear persecution made by the applicant. While it addressed her claims in some considerable detail, reading the decision as a whole it is apparent that it did not apply the ‘What if I am wrong?’ approach discussed in Minister for Immigration & Multicultural Affairs v Rajalingham [1999] FCR 719, on the basis that past events may have occurred. Rather, the Tribunal reached an ultimate and strongly expressed conclusion that it was ‘overwhelmingly confident’ that the applicant mother, who chose to speak for her children as well as for herself, ‘is not a reliable witness in the present matter. This case is a fabrication.’ This finding provided the ultimate basis for rejecting the applicant's claims.
Prior to expressing that conclusion however, the Tribunal had discussed the applicant's claims on the basis that even if it accepted aspects of the claims, in particular that the applicant's husband was a Hindu and that some of his claimed outbursts had occurred, it ‘would have’ had to have regard to a number of issues, in particular inconsistencies and lack of reliability in the applicant's claims, which would lead it to reject the claims that she made. The Tribunal stated that it ‘has shown what findings it would reach were it to accept the applicant’s claims to the extent possible at face value’ but it then stated that there was a difficulty in accepting the claims at face value for various reasons including their implausibility.
The Tribunal had regard, first, to the fact that it would have to take note of the fact that the applicant mother and children had relocated some nine hours away from their former family address and had succeeded in avoiding, or at least staving off, further occasional manifestations of the husband’s violent temper; that there had been a diminution in the gravity and frequency of intrusions; that the applicant did not involve the police in her father's district (so that the Tribunal “would conclude” that the situation was not so dire that they needed to involve the police); and that there were factual problems that it would have in accepting the applicant's claim that the police in a district away from the husband’s location had sided with him. Her assertion that the police in her father’s district were inclined to ignore her due to being a woman or a Christian was rejected as unsupported, as she never tried to engage them.
The Tribunal also referred to other factual problems it had with the claims. It had regard to the implausibility of the nature of the applicant's claims about what her husband had done (repeating unsuccessful abduction attempts). It found, in light of allegations about the number and nature of threats and assaults, that it was incongruous that he continued over ten years as claimed but had no success at all, and that the children continued, on the applicant's account, to be raised as Christians and attend a Christian school.
The Tribunal also found that the applicant's account of the problems with her husband were inconsistent. She had adhered stubbornly to claims she later contradicted. The Tribunal concluded that even if the applicant’s husband was a Hindu, the claims against him were unreliable. As the Tribunal stated, this was an important finding, as, taken together with the ultimate conclusion, it involved a clear rejection of the claims that provided the basis for the applicant’s claim to fear persecution for a Convention reason. The rejection of the claims as unreliable and as a fabrication provides an independent basis for the Tribunal's decision. That is so, whether or not there was a Convention nexus (were the claims believed). It was in that context that the passage relied upon by the applicant appeared. It commenced ‘in any event’. It was at most an alternative basis for the decision and is not determinative as it was not the only basis for rejecting the claims. Moreover this part of the reasons for decision was only part of the Tribunal’s discussion of the inconsistencies and inadequacies of the applicant's claims and evidence which led it to the ultimate finding (which is not affected by jurisdictional error either for this or for the other reasons contended by the applicant) that the applicant's case was a fabrication. No error has been established in that finding, which was made on the basis of the credibility of the claims and all of the material before the Tribunal.
In essence then, the first ground cannot succeed because it is not established that the Tribunal fell into jurisdictional error, but even if it had done so it would not be an error affecting the decision in such a manner as to constitute jurisdictional error as considered in MIMA v Yusuf (2001) 206 CLR 323.

‘Corroborating witness’ issue

The second ground relied on by the applicant is that:
“The applicant provided to the Tribunal statements of two corroborating witnesses: the applicant’s father and the applicant’s brother. The Tribunal should have ‘considered and formed a view about such evidence before assessing’ the applicant's credibility: see Re MIMA; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 135. The Tribunal’s failure to do so gives rise to jurisdictional error.”
The passage relied on from Applicant S20/2002 is from the judgment of Kirby J who was in the minority in that case. His Honour stated (at 135) that where an applicant: “sought to produce independent evidence that corroborated and supported his claim of past persecution in material respects, it was the duty of the tribunal properly to consider and form a view about such evidence before assessing the appellant's credibility.”
It was contended for the applicant that as the applicant had provided to the Tribunal a statement from her father and a statutory declaration from her brother which corroborated aspects of her claims, consistent with what was said by Kirby J, procedural fairness required that the Tribunal first properly consider and form a view about the corroborating evidence before assessing the applicant's credibility. It was contended that the Tribunal had dealt with the statement of the applicant's father after it assessed the applicant's credibility and hence fell into jurisdictional error and that it assessed the applicant's credibility without dealing with the statement of the applicant's brother.
It was conceded by counsel for the applicant that Kirby J was in the minority in Applicant S20 and that a different approach was taken by the majority which did not support the approach of Kirby J. McHugh and Gummow JJ (with whom Gleeson CJ agreed) stated at [49]:
In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that the case comprises lies by that party.
In relation to the Tribunal reasoning that because the appellant could not be believed it could not be satisfied with alleged corroboration their Honours stated at [49]:
“The appellant's argument in this court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s.430 of the [Migration] Act. But it is not irrational to focus first upon the case as it was put by the appellant.”
Clearly I am bound to follow the approach of the majority of the High Court and on this basis no jurisdictional error is established in the manner suggested by Kirby J. (Also see SVHB v MIMIA [2005] FCAFC 18 at [17]). Counsel for the applicant acknowledged that if this approach was correct he would have to establish that the Tribunal reasoning was irrational in deciding that the applicant had fabricated her case without previously weighing the alleged corroborative evidence. On the material before the court, I am not persuaded that the Tribunal proceeded in a manner that was irrational as discussed by the majority in Applicant S20. Indeed, even if the approach suggested by Kirby J were to be open to the court (which it is not), I am not persuaded that there was any lack of procedural fairness in the manner in which the Tribunal proceeded as contended by the applicant.
As counsel for the applicant conceded, in making its findings in relation to credibility the Tribunal had regard to a considerable number of inconsistencies in the applicant's evidence. This does not suggest any irrationality. Moreover, it is clear that there was not a failure by the Tribunal to have regard to or consider the evidence of the applicant's father and brother. The evidence in question formed material that was provided to the Tribunal in conjunction with a detailed submission from the applicant's advisers on 30 May 2003.
The material from the applicant's father consisted of a signed statement, which was provided at the same time as a statutory declaration from the applicant. The statement relates to and purports to support the applicant's claims about the nature of and reasons for her treatment by her husband prior to her departure from Bangladesh. In that respect it relies on what the applicant mother recounted to her father in relation to her treatment by her husband. The applicant's father also gave an account of what occurred at the Australian High Commission in Dhaka, at the time the applicant and her children sought visitor visas to come to Australia. He explained that he had worked at the Australian High Commission in the past and claimed that he went to the High Commission in December 2000 and dealt with a named person (although he gave a spelling for this gentleman’s name that differed from the spelling that the Department obtained when it obtained information directly from the High Commission). The father stated that in relation to the visitor visa applications he signed a consent form which was supposed to be signed by the applicant's husband (the father of the children) consenting to their travel. He claimed he did this because the applicant's husband would not have agreed to do so. The father then gave an account of a subsequent alleged attempt at bribery by an employee of the High Commission and suggested that this provided an explanation for what he says is a false account provided by the High Commission as to what occurred at that time.
The brother of the applicant provided a statutory declaration. He lives in Sydney but provided an account of what was said to have occurred in Bangladesh by way of mistreatment of the applicant by her husband, based on what he was told by the applicant and by his father. He also relies on what he was told by his father in relation to what occurred at and in relation to the High Commission.
The Tribunal acknowledged that it had received the submission and the accompanying annexures and that the annexures (being the statutory declaration from the applicant and the statement from her father and declaration from her brother) addressed questions of credibility. It went on to consider the manner in which the submission from the applicant's then migration agent provided a number of possible reasons for why there were different accounts in the evidence about the applicant husband's religion and whether or not he accompanied the applicant mother to the High Commission. Those explanations to some extent address the claims made by the applicant's father that he accompanied the applicant to the High Commission and completed the consent form which was meant to have been completed by the applicant's husband.
The Tribunal then considered in some detail the claims of the applicant's mother's father (particularly his claims about the officer of the High Commission). The Tribunal noted that there was some inconsistency between the applicant's and her father's claims about what occurred and some of the scenarios put forward by her migration agents. It also described some illogicalities in the accounts given by the applicant’s father as to what occurred in his dealings with the High Commission.
The Tribunal gave reasons for its concerns about the claims, in particular in relation to when certain events were meant to have occurred and the differences between the accounts of the applicant, the accounts of her father, and the evidence that had been provided by the High Commission. It concluded that there was illogicality in what the father said had occurred (in particular because the father claimed that he purported to write a letter to save the reputation of a High Commission employee who had supposedly sought to bribe him some two weeks earlier.)

The Tribunal also addressed the statement from the applicant's brother and pointed out that it reported alleged conversations with the applicant and the father as to what occurred in Bangladesh.
In the concluding part of the Tribunal reasons for decision, the Tribunal addressed inconsistencies in relation to the applicant's evidence about what occurred at the High Commission. It found that it could not rely on the applicant's inconsistently supported position about her husband not accompanying her to the High Commission. It also addressed concerns in relation to a purported marriage certificate and whether or not there were two witnesses or one. And it then stated:
The purported confession of the applicant's mother's father is dismissed as a self-serving fabrication.
The Tribunal concluded that the consent letter was signed by the applicant's husband at the High Commission in accordance with standard Departmental requirements. It dismissed the blackmail story as an ill-conceived fabrication, tainted by inconsistency. The gravity of this attempted deception was said to reinforce the Tribunal's scepticism in relation to the central substantive claims in this case.
The finding that the consent letter was signed by the applicant's husband addresses the claims made in the statement from the applicant's father that were not based on hearsay evidence of what his daughter had told him had occurred in Bangladesh. The finding rejects not only the father's claims in that respect but also the claims of the applicant.
Hence it can be seen that, even on the approach suggested by Kirby J in Applicant S20/2002, the Tribunal did in fact consider the so-called corroborative evidence of the applicant's father and brother together with the evidence of the applicant. It did not, in fact, reject the applicant's credibility without addressing this evidence. The Tribunal gave a number of reasons for its findings which were open to it on the material before it. It addressed inconsistencies and implausibilities in the applicant's claims and in the evidence of her father. It was not required separately to assess the father's own credibility and it dealt sufficiently with the evidence of the brother, relying as such evidence did on what he had been told by his sister and father to provide, as the Tribunal indicated, an attempt to support her credibility. No error is apparent in the manner contended. There is no jurisdictional error, whether expressed in terms of a lack of procedural fairness or irrationality.

The ‘marriage document’ issue

The final ground relied on by the applicant is that:
The Tribunal found that there was an inconsistency between the applicant's evidence that her marriage was affirmed in the presence of two witnesses, but there was only one witness signature to a marriage document affidavit before the Tribunal… There was no inconsistency. The Tribunal fell into jurisdictional error in finding that there was an inconsistency.
The Tribunal found that nothing before it supported the contention that a photocopy of a so-called marriage affidavit provided by the applicant was the representation of a genuine marriage certificate. On the copy provided only one witness had signed the document in a statement provided to the Tribunal the applicant had claimed that she married her husband in 1987 ‘in the presence of two witnesses and our friends’. The Tribunal stated:
In addition, the number of claimed witnesses to the marriage, (distinguished in evidence from “friends” in attendance) does not add up: The applicant mother repeated to the Tribunal in her 29 May 2003 statement, that the wedding was affirmed in the presence of two witnesses, but only one signature underwrites those of the spouses on the ‘Affidavit’.
It was contended that the Tribunal appeared to regard this as an important inconsistency, but that there was not necessarily an inconsistency between the applicant's explanation that she married in the presence of two witnesses and her provision of a marriage certificate containing only one witness signature. It was suggested that it may be that only one witness signature was required for the certificate and that in making such finding, the Tribunal's reasoning was irrational, illogical or not based upon findings or inferences of fact supported by logical grounds, as discussed in Applicant S20/2002 at [34] and [37], and on this basis the Tribunal fell into jurisdictional error.
This ground amounts to an attempt to agitate the merits of the Tribunal's factual findings. On the evidence before it, it was open to the Tribunal to find that there was an inconsistency between the applicant's statement that there were two witnesses to the marriage and the certificate being witnessed by one person. This is a matter of fact for the Tribunal. There was no evidence before it from the applicant to explain why there was only one ‘witness’ named on the document. It is notable in that respect that the Tribunal had regard, not only to the issue of witnesses, but also to what it described as the many lies and delayed explanations in this case which gave the Tribunal reason to be extremely cautious about the marriage document and its provenance. It also addressed concerns about the format and electronic type in which the document was presented as well as finding that the number of claimed witnesses ‘does not add up’. In light of all the evidence it found nothing before it which supported the contention that the photocopy was a representation of a genuine marriage certificate.
Having considered the Tribunal reasons for decision as a whole, as well as the particular portion of the decision referred to in the respondent's written submissions, it has not been established that the Tribunal finding in relation to the difference between the number of claimed witnesses, which the Tribunal described as not adding up and the fact that only one signature appeared with those of the spouses on the so-called marriage affidavit, constitutes an inconsistency based on irrational or illogical findings or inferences of fact in the manner contended.
As no jurisdictional error has been established the application must be dismissed.

RECORDED : NOT TRANSCRIBED

The unsuccessful applicant should meet the costs of the respondent. The amount sought is appropriate.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 18 April 2005.