SZEIC v Minister for Immigration
[2005] FMCA 1185
•22 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEIC v MINISTER FOR IMMIGRATION | [2005] FMCA 1185 |
| MIGRATION – Review of decision by Refugee Review Tribunal – applicant a single mother from Montenegro of Malsian ethnicity and Catholic religion – applicant claims persecution on grounds of race/ethnicity, religion and membership of a particular social group – obligation of Tribunal to consider claims cumulatively – obligation of Tribunal to consider unarticulated claims – procedural fairness in oral evidence. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 422B; 424A |
| Pilbara Land Council v Minister for Aboriginal and Torres Strait Islander Affairs (2003) 103 FCR 539 Abebe v Commonwealth of Australia (1999) 197 CLR 510 Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 F Hoffman-La Roche v Co AG The Secretary of State for Trade and Industry [1975] AC 295 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 123 Paul v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 113 FCR 396 Applicant S v Minister for Immigration and Multicultural and Indigenous Affairs (2000) 217 CLR 387 Minister for Immigration and Multicultural and Indigenous Affairs v Khawar (2002) 210 CLR 1 Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 Appellant s395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 203 ALR 112 SWCB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 1178 Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29 |
| Applicant: | SZEIC |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG2738 of 2004 |
| Judgment of: | Emmett FM |
| Hearing date: | 3 August 2005 |
| Date of Last Submission: | 3 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 22 August 2005 |
REPRESENTATION
| Solicitors for the Applicant: | Ms L. Tucker, Kingsford Legal Centre |
| Counsel for the Respondent: | Ms R. Francois |
| Solicitors for the Respondent: | Ms A. Alex, Phillips Fox |
ORDERS
That the Application filed 3 September 2004 is dismissed.
That the Applicant pay the costs of the Respondent in the amount of $4000.
That the costs in accordance with Order 2 are to be paid within 28 days unless otherwise agreed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2738 of 2004
| SZEIC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The Application
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) not to grant a protection visa to the Applicants.
The Applicants are a mother and her 2 children. For the purposes of this judgment I will refer to the mother as the Applicant.
The Applicant claims to be a citizen of Yugoslavia.
The Applicant arrived in Australia on 27 December 2002.
On 7 February 2003 the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Migration Act 1958 (Cth) (“the Act”).
On 10 February 2003 a delegate of the Minister refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Refugee Convention.
On 27 February 2003 the Applicant filed an application for review before the Tribunal. On 30 October 2003 the Tribunal affirmed the decision of the delegate not to grant a protection visa.
On 3 September 2004 the Applicant filed an Application in this Court seeking judicial review of the Tribunal’s decision. The Applicant seeks review on 2 grounds set out as follows:
“1. The Tribunal acted beyond its jurisdiction in its determination of the Applicant’s evidence as it failed to understand the nature of her claim. It thus took into account an irrelevant consideration and failed to take into account a relevant consideration.
Particulars:
The Applicant’s evidence to the Tribunal concerned her particular situation as a single woman with children in Montenegro. The Tribunal, however, found against the Applicant as she has family members still in Montenegro and none has been subjected to serious harm. The family members are not in the same situation as the Applicant and thus their situation was not relevant to her claim.
2. The Tribunal made findings adverse to the Applicant without putting such issue to the Applicant. The Applicant was thus denied procedural fairness in this matter and such denial may have affected the outcome of the Tribunal process.
Particulars:
The Tribunal stated that it was satisfied that if the Applicant had a well-founded fear of serious harm she would have left Yugoslavia a lot earlier. The Tribunal did not raise this issue with the Applicant at her hearing.”
Legislative framework
Section 65(1) of the Act provides that the decision maker must not grant a visa unless satisfied that the prescribed criteria have been met.
Subsection 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is categorised as a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
Procedural history
On 10 September 2003 the Tribunal wrote to the Applicant informing her that it had considered the material before it regarding the Applicant’s review application and informed the Applicant that it could not make a favourable decision on that information alone. The Tribunal invited the Applicant to attend the Tribunal hearing in person on
29 October 2003, give oral evidence and present arguments in support of the Applicant’s claims.
On 18 September 2003 the Applicant wrote to the Tribunal requesting that the Tribunal extend the deadline to provide further information and correct information provided by the Applicant’s previous migration agent.
On 25 September 2003 the Tribunal responded to this request by granting an extension of time to lodge further material and correct any mistakes by 20 October 2003. In this letter the Tribunal also re-confirmed the hearing date for 29 October 2003.
On 30 September 2003 the Tribunal received a “Response to Hearing Invitation” from the Applicant in which the Applicant had marked the box “YES”, thereby indicating that she would be attending the Tribunal hearing. The Applicant also requested an Albanian (Shqip) from Montenegro interpreter, or, a Croatian interpreter, for the Tribunal hearing.
On 20 October 2003 the Applicant’s representative wrote to the Tribunal indicating that the further material may not be lodged by the hearing date. However, on 28 October 2003 the Applicant’s representative hand delivered to the Tribunal, further material upon which the Applicant relied.
On 31 October 2003 the Tribunal informed the Applicant that it had made its decision and invited the Applicant to attend the Tribunal on 25 November 2003 to hear its decision.
The Tribunal proceeding
The Tribunal had before it the Department’s file, including the protection visa application and the delegate’s decision record. In addition the Applicant gave oral evidence at the hearing before the Tribunal on 29 October 2003. In support of her application before the Tribunal, the Applicant also relied on a written submission from her legal adviser, dated 28 October 2003; a statutory declaration by the Applicant, dated 28 October 2003; and a copy of a letter from a lawyer, Mr Camaj, in Montenegro dated 15 October 2003 on his observations as to the political and security situation in Montenegro with focus on its Albanian populated region, and other supporting documents.
In her statutory declaration dated 28 October 2003 the Applicant claimed that she is Catholic, that she is not a Kosova and is not Albanian.
Essentially the Applicant made the following claims:
a)That she is a staunch Christian and fears persecution because of her “ethnicity, religion and the Christian political movement in Yugoslavia”.
b)That she witnessed many atrocities under the leadership of Slobodan Milosevic, including “vilification, harassment and discrimination”.
c)That religious intolerance has been prevalent in her village and that she has been “taunted and harassed” by her neighbours and that she fears radical groups in her village.
d)That, when growing up as a child, she was insulted by other children and adults, that she was constantly yelled at and made fun of, and that, when she went to hospital at the age of 15 for an accident, the hospital refused to treat her. The Applicant claimed that her family did not go to the police or make any complaint because they believed they would not get any protection.
e)That her father was badly beaten several years ago, although the family never knew who had beaten him. However, the family assumed that it was “because of our religion and ethnicity although we cannot be certain”.
f)That in early 1999 her brother was beaten, he being 16 years old at the time. The Applicant claims that her brother was beaten because he was Catholic.
g)That in 1999 her husband was recruited for the war but, when he refused to attend, was beaten by the military resulting in his hospitalisation. The Applicant claimed that the military police continued to look for her husband between 1999 and 2001.
h)That she has not had contact with her husband since 1999, although the police harassed her, including sexual harassment, between 1999 and 2001 in seeking to locate him, during which period, the Applicant lived with her grandmother in the mountains.
i)That, when she returned from the mountains in 2001, her husband’s family would not take her in and look after her. Her own family members rejected her also. The Applicant claimed that both families assumed that, when she was living with her grandmother, she had been raped by military personnel seeking her husband. The Applicant stated that the husband’s family would take the children but not her.
j)That she feared the government would not bring perpetrators of violence “who instigated such turmoil” to justice. She further claimed that her husband had fled the “atrocities” and is now in America as he was being victimised by his co-workers and was not able to go to work. She later confirmed that she did not in fact know the whereabouts of her husband.
k)That she will not be able to get any work if she was to return to Yugoslavia.
In her application for a protection visa, the Applicant referred to “ethnic violence” without giving further particulars. She asserted that she experienced some “pocket politically motivated violence” and referred to the existence of Christian and Muslim violence. Again, no further particulars were provided.
At the outset of the Tribunal hearing, the Applicant agreed to rely only on her statutory declaration of 28 October 2003. She acknowledged it departed from facts asserted by her in her application for review and supporting documents.
The Tribunal put to the Applicant that her refugee claims were vague and general and seemed to be associated with hardship and limited discrimination suffered by her in her youth and, more recently, during events surrounding the war under the Milosevic regime. The Applicant replied that she was a refugee because she did not have a home or a husband and did not have anywhere to go.
The Tribunal then asked her about her claims of having a well founded fear of persecution. The Applicant replied that in January 2000 when she lived with her grandmother in the mountains “the soldiers often came and gave her a hard time and wanted sexual relations with her and that scared her”.
The Applicant asserted that if she returned to Montenegro/Yugoslavia she would be killed or put in jail as she belonged to a small group. She claimed that this would occur because the Serbs in charge see anyone who leaves as having run away. She claimed that the Serbs would know what she had said about how they treated people and the beating of her brother and would not leave her alone.
The Applicant claimed that she could not live anywhere else in Montenegro because she comes from a very small group living in Tuzi.
The Tribunal’s findings
The Tribunal accepted that the Applicant is a national of Yugoslavia, is of Malsia ethnicity and Roman Catholic religion.
The Tribunal accepted that the Applicant is a member of an ethnic and religious minority who experienced some limited discrimination when growing up under the Milosevic regime. The Tribunal also accepted that her brother and father were badly beaten some number of years ago. However, the Tribunal was not satisfied that the essential and significant reason for any discrimination experienced by the Applicant or the beatings of her father and brother were because of their religion, ethnicity/race, or for any other Convention reason.
The Tribunal arrived at that conclusion after making the following observations:
a)The Applicant herself was not certain that the beatings of her father and brother were because of religion and ethnicity.
b)The Applicant’s parents, 5 brothers and a sister continue to live in Montenegro and the Applicant does not assert that any of them have been subjected to serious harm amounting to persecution within the meaning of the Convention.
c)The Applicant did not leave Yugoslavia until 2 years after she obtained a passport to leave and the Tribunal observed that if the Applicant had a well founded fear of serious harm because of discrimination she experienced and the beatings of her brother and father she would have left Yugoslavia much earlier and certainly shortly after she obtained a passport.
The Tribunal accepted that when the Applicant was living with her grandmother and sister in January 2000 in the mountains the soldiers did come and give her a hard time and wanted to have sexual relations with her and that scared her. However the Tribunal observed that the Applicant has not claimed that, when she moved back down from the mountains to live with her parents in June 2001, she has been worried that she might be sexually attacked. Rather, the Applicant claimed that living with 14 other people at her parents was difficult and that she was “living in a desperate situation” because there was no money for food.
The Tribunal accepted that, as a single mother, the Applicant has experienced hardship compounded by the disappearance of her husband and that she would like to remain in Australia. However, the Tribunal observed that the Applicant was living with her parents and some 12 relatives prior to coming to Australia in a family home that had been owned for some 27 to 28 years. The Tribunal further observed that, whilst the Applicant claimed that her own family rejected her and were “horrible and terrible” to her, her father, nevertheless, funded her travel to Australia with her children. The Tribunal accepted her father’s conduct as indicating that the Applicant’s parents were still willing and able to support her.
The Tribunal considered the letter of Mr Camaj, dated 15 October 2003, addressing the political and security situation in Montenegro. However, the Tribunal was not able to satisfy itself that the essential and significant reason of any difficulties that the Applicant may experience in finding a place to stay if she were to return or finding a job would be for a Convention related reason. Further, the Tribunal placed little weight on the comments of Mr Camaj on the possible issue of conscription in relation to the Applicant on the basis that the Applicant herself made no claim that she has ever been conscripted and that she is now 30 years of age.
Accordingly, the Tribunal was not satisfied that the Applicant would be subjected to serious harm, amounting to persecution for a Convention reason, if she was to return to Yugoslavia, either now or in the foreseeable future. Accordingly, the Tribunal found that the Applicant and her children were not persons to whom Australia owed protection obligations.
The proceeding before this Court
The Applicant was represented before this Court by a solicitor from the Kingsford Legal Centre and had the benefit of an interpreter.
The Applicant distilled the grounds of her Application to this Court as follows:
a)Denial of procedural fairness in the failure of the Tribunal to put to the Applicant the Tribunal’s concerns over:
i)The Applicant’s time of departure from Montenegro;
ii)The Applicant’s family members still residing in Montenegro;
iii)The reasons for other family members having left Montenegro;
iv)The time the Applicant spent living with her family in Montenegro before her departure;
v)The significance of the Applicant’s father paying for the Applicant and her children to leave Montenegro.
b)The constructive failure of the Tribunal to exercise jurisdiction in relation to the application of the Convention concerning persecution for reasons of membership of a social group, namely a single woman with children, from an ethnic and religious minority.
a) Denial of procedural fairness in the failure of the Tribunal to put facts to the Applicant
The Applicant in her written submissions addressed the procedural fairness issue by identifying 5 factors that she contends were critical issues of fact that appeared to cause the Tribunal concern. The Applicant submits that the Tribunal should have raised its concerns with her. The Applicant identifies concerns of the Tribunal by the weight it attached to the short answers, given by the Applicant in oral evidence, to questions by the Tribunal that the Applicant contends were framed in a manner that elicited only short answers.
The Applicant relied on the principle enunciated in Pilbara Land Council v Minister for Aboriginal and Torres Strait Islander Affairs (2003) 103 FCR 539 where Merkel J said the following:
“The overriding principle is that the decision maker must bring to the Applicant’s attention the critical issue or factor on which the decision is likely to turn so that he or she may have an opportunity of dealing with it”.
The Applicant is entitled to be told any information not given by the Applicant but which was from another source which was adverse to the Applicant’s interests. .
The Respondent referred to Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 576 where the High Court said as follows:
“The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the Applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.”
Within the bounds of rationality, a decision maker is generally not obliged to invite comment on the evaluation of an applicant’s case. (See Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (“Alphaone”) at 591). Lord Diplock, in F Hoffman-La Roche v Co AG The Secretary of State for Trade and Industry [1975] AC 295 at 369, said:
“The rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity to criticise his mental processes before he reaches a final decision.”
Any information from another source that is the reason or part of the reason why the Tribunal is ultimately not satisfied of the Applicant’s claim, is information that s.424A of the Act would require the Tribunal to identify in writing to the Applicant (See SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24) and invite the Applicant to comment on such information.
The Applicant does not assert that any of the findings of the Tribunal arising out of the 5 factors it had regard to, any information other than information provided by the Applicant. In those circumstances, s.422B of the Act provides that Division 4 of Part 7 of the Act, of which s.424A is a part, exhaustively identifies the obligations of the Tribunal with respect to natural justice and, therefore, procedural fairness.
The Applicant submits that it was not apparent from the short answer questions about the situation of her family members that the Tribunal was going to place such significant weight on her answers in its decision. The Applicant submits that the Tribunal should have made that clearer to the Applicant.
The Applicant submits that the way in which the questions relating to the 5 factors, identified by the Applicant, were framed elicited only yes/no answers, and that she did not otherwise understand that the Tribunal member may place weight on the lack of further explanation or more expansive answers from her. The Applicant submits that the 5 factors should have been specifically explored further before the Tribunal Member proceeded to place weight on them.
The Respondent submitted that the 5 matters identified by the Applicant as factors that the Tribunal should have raised with the Applicant are matters that relate to the Tribunal’s subjective appraisal, thought process or determination and there is no obligation on the part of the Tribunal to raise such matters with the Applicant. Nor is it necessary for the Tribunal to raise with the Applicant gaps, defects or lack of detail or specificity in evidence, or to conclusions arrived at by the Tribunal in weighing up the evidence in reference to those gaps. (See VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 123 at paragraph 24).
The Respondent submitted that natural justice does not require the Tribunal to put its thought processes or conclusions to an applicant. In support of that submission the Respondent referred to Alphaone at 592 where the Full Court concluded:
“The decision maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.”
The Respondent also relied and referred the Court to Allsop J’s observation in Paul v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 113 FCR 396 in which his Honour said that the information of which particulars must be provided is information or knowledge that has come to or been gained by the Tribunal and does not include the subjective appraisal or thought process of the Tribunal.
The Respondent submits that the 5 critical factors that the Applicant submits should have been raised with her were merely the Tribunal’s interpretation of the evidence.
The Tribunal is required to identify to the Applicant those critical elements of her claim that the Tribunal will need to be satisfied about in order to uphold the Applicant’s claim (Alphaone at page 591).
The Tribunal clearly identified the “key features of the Refugee definition”. At the outset of the hearing, the Tribunal Member said as follows:
“You have applied to the Refugee Review Tribunal to undertake an independent review by the decision by the delegate of the Minister for Immigration not to grant you a protection visa because you were not found to be a refugee. My job is to conduct this independent review. I’m undertaking a new investigation and examination of your application and not just the earlier written decision. As part of the process I will be considering all of the evidence you’ve provided including the information you give me today. I then make a decision about whether or not you are a refugee. I’d like to emphasise the Tribunal is entirely separate from and independent of the Department of Immigration Multicultural and Indigenous Affairs. It is also important that the Tribunal only has a very specific and narrow responsibility. The only thing the Tribunal can decide is whether or not you are a refugee. Other immigration and humanitarian issues are entirely matters for the Minister and the Department and not for this Tribunal. The United Nations has a convention concerning the status of refugees and is defined who is a refugee. The UN refugee definition is the one in front of you which I gather is in your preferred language. Is that correct? Have you read it?
Answer: Yes.
I’ll explain it in very general terms. Several of the key features of the refugee definition. A refugee is a person who has a fear of being persecuted. The person must have a sound basis for fearing persecution. That is the fear must be genuine and there must also be a factual or objective basis of that continuing fear. The persecution fear must be motivated by one or more of the Convention reasons, namely because of race, religion, nationality, membership of a particular social group or political opinion. The threat of persecution must involve serious harm. For example, a threat to a persons life of liberty or significant physical harassment. Just because a person fears harm does not necessarily make the person a refugee. To claim persecution, it must involve systematic and discriminatory conduct. A person is not at risk of persecution if they can live safely in some other part of their country. In short a ?? refugee definition to your situation, the Tribunal must consider whether there is a real chance that, on return to your country you will face persecution and, if that persecution is for one or more of the reasons in the Refugee definition, either now or in the reasonably foreseeable future. Do your understand what I have just said? Do you have any questions about that?
Answer: No
Tribunal member: Now I have kept your ?? files so I believe that I have a reasonably good understanding of your claims. At this hearing, I will only raise points on which I would like further clarification or more detailed information and I will not necessarily cover everything you raise in detail. The form of the hearing is my asking questions, some general and some more specific, and your answering these carefully and truthfully. Clearly, if I find you have been untruthful in one matter, I may be inclined to conclude you have been untruthful on another matter, even if this is not necessarily the case. So please tell the truth. I will give you an opportunity at the end of the hearing to make any other comments or remarks you wish to make. I expect the hearing to take about an hour and a half, although, if we need more time, we will take whatever time is deemed necessary. Do you have any questions about either what I have just said now or how we are going to proceed?
Answer: I understood everything.”
I am satisfied that the Tribunal comprehensively identified and explained, in the preceding paragraph, the critical elements necessary for the Applicant to be found to be a person to whom Australia owes protection obligations.
The Tribunal then went on to confirm with the Applicant that the Applicant was relying on the facts asserted in her statement of 28 October 2003 and did not wish to have taken into account anything inconsistent with that statement that might be contained in her protection visa application, or other document.
The Tribunal went on to raise with her short answer questions about her family, where her siblings are living, where her parents are living, and who was living at home with her parents. The Tribunal member also established that the parents had lived for 27 or 28 years in Montenegro.
The Tribunal member then moved to the claims that the Applicant had made for being a refugee and said to the Applicant that he found the claims:
“vague and general and seem associated with hardship, some limited discrimination you experienced in your youth and the events of 1999.”
The Tribunal member then went on to ask the Applicant to tell him why she believed she was a refugee. The Applicant answered:
“because I don’t have a home and I don’t have a husband, I have 2 children and I have nowhere to go.”
The Tribunal member then went on to say to the Applicant:
“As I explained at the beginning of the hearing the core criteria that an applicant for refugee status must meet is to have a well founded fear of persecution, and that that persecution is for the reasons mentioned as I discussed with you earlier. So can you elaborate in more detail why you believe you have been, or would be subject to persecution in Yugoslavia or in Montenegro in particular?
Answer: When I was there my grandmother and sister live in mountains and I live with them and the soldiers came knocking on the door and they once they came they wanted sexual relations with me and they ?? I was really scared.
Tribunal member: When was that?
Answer: In the year 2000…They were always giving us a hard time, but when they wanted to rape me it was in January 2000.
Tribunal member: What do you think would happen if you went back to Montenegro, Yugoslavia?
Answer: I think especially after spending 10 months here and everything I said about them, I would either be killed or thrown into jail or my children put in the street, just a regular crime. I just ask the lady to repeat the last part which is because we belong to a very small group of people of the Catholic faith in Montenegro so it was always difficult for us.”
The Tribunal member then went on to ask the Applicant why she thought she would be thrown into jail, to which the Applicant answered:
“because the Serb ? (sic) charge and no one else has any right and I know whenever I run away never come back. When I left I would never dare to go back and I know that if I go back I will have problems and so will my children.”
The Tribunal member then when on to explore further with the Applicant why she thought she would be killed having been in Australia for 10 months. The Applicant referred back to the beating of her brother, the fact that her husband left her, the fact that she ran away and the fact that “we are very small ethnic group of Albanians living in Tuza and entire Montenegro.”
The Tribunal, after several more questions, concluded as follows:
“Unless you’ve got anything else then I will proceed to close the hearing. Ok…I should say that there will be no further opportunity to provide any additional evidence or submissions to the hearing after we close.”
The Applicant did not seek to put anything further to the Tribunal, by way of documentary material or oral submissions.
The transcript makes it clear that every opportunity was provided to the Applicant by the Tribunal to elaborate or deal further with any of her claims. The Tribunal made it clear after its short answer questions that it still regarded the Applicant’s claims as “vague and general”. The Tribunal proceeded to give the Applicant a further opportunity to provide oral evidence in support of her claims, in addition to her statement of 28 October 2003. The Tribunal also sought to direct her mind, once again, to the critical elements about which the Tribunal would need to be satisfied that the Applicant was a person to whom Australia owed protection obligations.
Accordingly, I am not satisfied that the way in which the Tribunal conducted its hearing of the oral evidence of the Applicant involved any denial of procedural fairness.
For the sake of completeness, I make the following observations about each of the Applicant’s 5 critical factors:
a)In relation to (i), the Tribunal was entitled to have regard to the delay by the Applicant in leaving Yugoslavia once her passport was secured, particularly where that delay was for 2 years, in considering whether the Applicant had a well founded fear of persecution for a Convention reason.
b)In relation to claims (ii) and (iii), the Applicant contends that the Tribunal accorded too much significance to the fact that members of her family remained in Montenegro in circumstances where “the particular circumstances of the Applicant” were those upon which the Applicant relied as giving rise to the risk of persecution feared by her. However, before the delegate and the Tribunal, the Applicant expressed fear of persecution was because of her ethnicity and religion, being Malsian and Christian. In support of that claim the Applicant specifically relied on beatings of her family members as a result of their religious and ethnic minority. The Applicant stated, in her review application, that it was violence between the Muslims and Christians that she feared.
c)The Tribunal accepted that the Applicant and her family had suffered some limited discrimination growing up under the Milosevic regime as members of an ethnic and religious minority, in accordance with the Applicant’s claim. However, the Tribunal was not satisfied that the essential and significant reason for the discrimination and the beatings of her family members was for a Convention reason. That finding was arrived at by the Tribunal following its consideration of the Applicant’s claims and applying, in its reasons, its thought processes set out.
d)I do not accept the Applicant’s contention that the Tribunal erred in finding it a matter of “great significance” that the Applicant’s parents, 5 brothers and a sister still live in Montenegro. Moreover, the Applicant does not assert that any have been subjected to serious harm amounting to persecution for a Convention reason. The Applicant also referred to other family members that left, but does not assert that they left for fear of persecution for a Convention reason. In light of the claims made by the Applicant before the Tribunal as to her reasons for fearing persecution, namely race and religion, it is highly relevant, although by no means conclusive, that there was no evidence from the Applicant of any fear of persecution by members of her family, being of the same ethnic and religious minority as the Applicant, and 2 of whom, have been subject to beatings in the past.
e)In relation to (iv) and (v), the Tribunal was also entitled to have regard to the fact that the Applicant’s father paid for her travel to Australia with the children and allowed the Applicant and her children live with him for nearly 2 years prior to her departure. Again, that fact formed part of the thought processes of the Tribunal in leading the Tribunal to find that the Applicant’s parents are more supportive of her than the Applicant claims. Accordingly, that finding was open to the Tribunal and the Tribunal was not required to reveal the thought process of its consideration of that information with the Applicant at the hearing.
I am satisfied that the 5 critical factors identified by the Applicant are indeed the thought processes of the Tribunal, the adverse nature of which was not required to be put by the Tribunal to the Applicant.
The factual conclusions arrived at by the Tribunal were otherwise open on the material before it.
Accordingly, I am not satisfied that the failure of the Tribunal to reveal to the Applicant the particular weight that it intended to place on her answers or her evidence during the hearing is a denial of procedural fairness.
Accordingly, ground (a) is rejected.
(b) Applicant’s membership of a social group, namely a single women with children, from an ethnic and religious minority
In relation to the second ground, constructive failure to exercise jurisdiction, the Applicant submits that the Tribunal failed to understand the nature of the Applicant’s claim with regard to her membership of “a particular social group”, being a single mother whose husband had disappeared and who was subject to incidents and threats related to her ethnicity and her religion.
The Applicant submits that the Tribunal’s approach in dealing separately with the persecution feared by the Applicant for ethnicity/religion and then as a single mother in Montenegro was flawed. The Applicant submits that the Tribunal did not address the question as to whether the Applicant was a member of a particular social group in which the various characteristics, considered cumulatively, would lead to the Applicant, or her children, being at risk of persecution if they returned to Montenegro.
The Applicant relied in support of this submission on the case of Applicant S v Minister for Immigration and Multicultural and Indigenous Affairs (2000) 217 CLR 387 as stating that a particular social group might be created by a combination of cultural, religious and legal norms even if a society did not perceive the existence of the group.
The Applicant relied on the cases of Appellant s395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 203 ALR 112 and SWCB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 1178 at 42 in support of her submission that the Tribunal was obliged to make an inquiry that requires a closer consideration of the situation of a particular applicant.
The Applicant submitted that the Tribunal, in asking her to tell it why she believed she was a refugee, erred in accordance with the principle in Minister for Immigration and Multicultural and Indigenous Affairs v Khawar (2002) 210 CLR 1, in that, it was not for the Applicant to identify in what way the Convention applied to her. Rather, it was for the Tribunal on the material before it, to consider and identify a social group in Montenegro comprising ethnic Albanian women who are Catholic with children without the protection of husbands.
The Respondent submitted that, in accordance with Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389 [24-26], the task of the Tribunal, in respect of an articulated claim by an applicant, involves a number of steps. First, the Tribunal needs to determine whether a group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention and that this determination in part, at least, involves a question of law. It is then a question of fact as to whether the applicant is a member of that class. Thereafter follow questions relating to whether the applicant has a fear of persecution and whether that fear is well founded and if so whether it is for a Convention reason.
The Tribunal must be satisfied that there is evidentiary support for the existence of such a group. A particular social group does not exist simply because an applicant claims it exists. The Respondent submitted that the facts about the Applicant that were accepted by the Tribunal did not point to the existence of such a social group.
The Applicant, in her written material before the Tribunal, made it clear that the reason she had been harassed by the military was because her husband had refused to join the military, when conscripted, and the soldiers who harassed her were looking for her husband. The Applicant asserts, at paragraph 25 of her statement dated 28 October 2003, “The military police came looking for my husband. I suffered constant harassment which included sexual harassment. On one occasion, I was almost raped. My husband’s grandmother walked in and the man ran off”. That assertion does not support a claim by the Applicant that there existed a particular social group of single women with children of an ethnic and religious minority whose husbands had left them. It is plain that the Applicant was asserting that she was harassed by military personnel in the conduct of their search for her husband, and not because she was being targeted in particular or as part of any social group. It was her husband’s actions in seeking to avoid military service that brought the military personnel into contact with her.
The Tribunal is obliged to consider any claim that is sufficiently raised on the material before it irrespective of whether the Applicant made a specific claim in respect of that material (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263) (“NABE”). However, the Applicant made no such specifically articulated claim prior to her submissions to this Court.
The Tribunal found that in June 2001, when the Applicant returned to live with her parents, there was no further specific allegation of harassment by military personnel. Rather, her concerns were related to the “desperate situation” that she experienced in living with her family because they “were horrible and terrible” to her and did not accept her and assumed she had been raped by the military when living in the mountains with her grandmother. The Applicant did not articulate a claim before the Tribunal that there existed a social group of single women, left by their husbands who were perceived to have been raped and who suffered persecution as a result of being a member of that group. Nor is the existence of any such social group plainly raised on the material before the Tribunal.
In relation to the Applicant’s claim of being shunned by her and her husband’s families because of the perception she may have been raped, there is no material or evidence before the Tribunal capable of substantiating a finding of serious harm in terms of s.91R by reason of any non acceptance. Moreover, the Applicant does not claim any wider lack of acceptance. In any event, the Tribunal did not accept the Applicant’s evidence that she had been rejected by her family in circumstances where she and her children had moved in with her family and her father had paid for her and her children’s travel to Australia.
I am satisfied that the Tribunal considered, as it was required to do, the individual circumstances of the Applicant in the light of the available information (Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29 at [10]). It concluded that there was not a real chance of serious harm to the Applicant arising from her particular circumstances. Accordingly, the Tribunal was not satisfied that the Applicant’s fear of persecution was well founded, nor was it for a Convention reason.
Moreover, there was no obligation on the Tribunal to seek creatively to ascertain every possibility of a claim that may arise. The Tribunal is obliged to consider such matters that are articulated by an applicant or are plainly or sufficiently raised by the material (NABE at paragraph 63).
The Tribunal considered the evidence of Mr Camaj who referred to the situation of an average Albanian female in Montenegro as even worse then that of Albanians generally. Mr Camaj’s concerns were directed to the Milosevic era. The Tribunal had regard to Mr Camaj’s letter, as is apparent from its decision. However, the Tribunal had before it country information dated March 2003, as well as earlier country information in 2002, that satisfied the Tribunal that, whilst some long established religions, including the majority Serbian Orthodox church, received some preferential treatment, the government did not interfere in the public or private sphere of religion. The country information also had regard to the October 2000 revolution following the end of the Milosevic era.
Conclusion
The Tribunal found that any discrimination experienced by the Applicant because of her ethnicity and religious minority was not for a Convention reason. The Tribunal had regard to the claims made by the Applicant in support of that submission, namely the beatings of her father and brother and the taunts and humiliation she suffered growing up and concluded that those events were not persecution for a Convention reason. Further, the Tribunal did not accept that the Applicant was persecuted because she was a single women or because of her ethnicity/religion within the meaning of the Convention. Those findings were open to the Tribunal on the material before it.
The Applicant did not identify any particular evidence of persecution of the social group of single Albanian women with children of an ethnic and religious minority for a Convention reason. Moreover, the country information available to the Tribunal did not support such a finding.
I am satisfied that the material before the Tribunal did not give rise to a possible claim that the Applicant may be a member of a particular social group consisting of single women with children from an ethnic and religious minority.
In the circumstances, I am satisfied that there was no error on the part of the Tribunal of failing to identify a social group or of failing to consider whether the Applicant was indeed a member of such a group; or whether such a group was persecuted for a Convention reason and whether the Applicant had a well founded fear of persecution for that reason.
In the circumstances, I am satisfied that the Tribunal properly considered the factual claims before it made by the Applicant and the findings made by the Tribunal in respect of those facts were open to the Tribunal. Further, I am satisfied that there is not any other claim plainly arising from the material before this Court that is capable of satisfying the Court that there is jurisdictional error.
Accordingly, the Tribunal’s decision is a privative clause decision and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
Accordingly, the Applications before this Court are dismissed with costs.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Riddle
Date: 17 August 2005
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