SZEXM v Minister for Immigration - [2005] FMCA 1229

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEXM v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1229

MIGRATION – RRT decision – Ghanaian woman fearing female circumcision – claims based on tribal pressure and position of husband – not overlooked by Tribunal – no error found.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.474(1), 483A, Pt.8

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30

Applicant:

SZEXM

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2199 of 2004

Judgment of:

Smith FM

Hearing date:

15 August 2005

Delivered at:

Sydney

Delivered on:

15 August 2005

REPRESENTATION

Counsel for the Applicant:

Mr M Newman

Solicitors for the Applicant:

Newman & Associates

Counsel for the First Respondent:

Ms S Mason

Solicitors for the Respondents:

Clayton Utz

ORDERS

The Tribunal be joined as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2199 of 2004

SZEXM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which challenges a decision of the Refugee Review Tribunal (“the Tribunal”) dated 28 May 2003 and handed down on 22 June 2004. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction in a matter such as the present is under s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476, the limitations on my powers have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant should be believed nor whether she qualifies for a refugee visa.
The present applicant arrived in Australia in September 2002, leaving her three sons in Ghana. In an application for a protection visa lodged on 21 October 2002 she indicated she was a Ghanaian national. Her application was assisted by a migration agent.
The nature of the applicant’s claims was not identified by reference to different heads of entitlement under the definition of “refugee” in the Refugees Convention. Thus, for example, although the application referred to the fact that she would be providing documents later concerning “membership of political party”, it was not clear in the claims made whether she claimed to fear persecution based on political opinions, or whether it was based on her personal family and clan circumstances. If she did make “political” claims, it would seem that they related to her activities in a women’s fellowship.
In answer to the question: “Why did you leave that country?”, the applicant said:
As a self‑employed trader in my village (Village), I represented the AGLOW women’s fellowship as their Vice‑President and the spokeswoman. Our objective was to fight equal rights for the local women. Our highest priority was to stop women circumcision in Ghana as a whole and ASONA tribe in particular hence the ethnic group had been subjected to the practice against their wish. …
Therefore my objection to the fact that the ASONA ethnics are not allowed to self determine their health issues had brought me in conflict with the authorities and powerful elders in my community. For this reason my shop was burnt down one afternoon while I was attending our women’s meeting. This incident was reported to police but they advised me to get assistance from other women before they go home from the meeting which I had just returned from.
In answer to the question: “What do you fear may happen to you if you go back to that country?”, the applicant said:
… If I go back to my native country, I would be forced against my will as a woman to be circumcised. I will not be protected by the authorities since most of the police are men. …
In answer to the question, “Who do you think may harm/mistreat you if you go back?”, the applicant said:
The policy which we oppose had been adopted and implemented by the GHANAIAN GOVERNMENT. …
and suggested that the local village hospital was involved in enforced circumcisions and that the police would not interfere.
One part of the application which featured in submissions to me by the applicant’s legal representative was:
41: Why do you think this will happen to you if you go back?
After my shop was set ablaze I was forced to move to ACCRA but my life continued to be threatened by elders who recognised me on the streets. Again my eldest son would be bashed at school for no reason and his school authorities would do nothing to punish the culprits. My family was getting into trouble wherever they go. My husband had also joined with the elders and police to make life hell for me in particular and the AGLOW WOMEN FELLOWSHIP. The Govt assists hospital staff in implementing the policy to circumcise women within the ASONA ethnic group because they are in the minority and no one would protect them. With this past my husband became very violent towards me. He attacked me with a stick giving me injuries on my back. I was too afraid to receive treatment at the hospital because I would be forced to have the circumcision performed at the same time.
A delegate refused the visa on 22 November 2002, substantially on the basis that her claims appeared inconsistent with country information that female genital mutilation (“FGM”) had been outlawed in Ghana since 1994, and there was no report which suggested that those who opposed FGM were being harassed or subjected to any adverse treatment by the authorities or local tribal leaders.
The applicant appealed to the Refugee Review Tribunal on 18 December 2002, assisted by her migration agent. The application did not put forward more detail in relation to the applicant’s account, but argued that the delegate had failed to “recognise that women at risk in Ghana fall within particular social group under the Convention”. It also argued that:
The decision therefore neglected the applicant’s treatment and family domestic violence at the hands of her husband, as not amounting to persecution under the Convention. The decision also failed to recognise that married women in Ghana who were victims of domestic violence in the private sector at the hands of their respective husbands are within the purview of “particular social group”.
The applicant submitted two documents to corroborate her claim of involvement in the Women’s Aglow Fellowship International, and attended two hearings held by the Tribunal on 11 February 2004 and 17 March 2004.
The Tribunal, in its reasons, set out a description of its questioning at both hearings. It pointed to aspects of what the applicant said which the Tribunal felt showed inconsistency, in particular as to the periods of her residence in the village she referred to. The Tribunal also noted that for the first time at the hearing:
The Applicant told the Tribunal that her husband became a sub‑chief of the village in February 2002, and, because female circumcision was practised in the village, as the wife of the sub‑chief, it was automatically expected and demanded that she would be circumcised.
The applicant told the Tribunal that the persecution had started when her husband became a sub‑chief and:
… there were many arguments with her husband over her refusal to be circumcised and that her husband had beaten her. After these beatings, she said she “decided to go to Accra”.
The Tribunal then referred to independent country information concerning the situation in Ghana in relation to FGM and violence against women.
The Tribunal’s findings in the matter appear under the heading, “Findings and Reasons” and a series of sub‑headings. The organisation of these headings is not clear, but the Tribunal appears to have felt that it should deal with the applicant’s account from various perspectives, and there is therefore an element of repetition in how the Tribunal deals with her claims. The Tribunal has also dealt separately with key incidents claimed by the applicant, such as her places of residence, the burning down of her shop, her relationship with her husband, and her name in her passport. The reasoning on these matters does not sequentially lead to conclusions addressing the Refugees Convention definition as applicable to her claims, but this is not necessarily to be held against the Tribunal (c.f. Gleeson CJ in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 at [14]).
I consider that, within the Tribunal’s reasoning, it has addressed sufficiently all elements of the applicant’s claims and, although there is an element of circularity in some of its reasoning, I do not think it displays a failure to address any claim according to law.
Due to the limited grounds which have been presented to the Court, it is not necessary for me to analyse all aspects of the Tribunal’s reasoning. The ground for judicial review argued by the applicant’s representative was framed in an amended application as follows:
The Tribunal erred in the application of its jurisdiction by ignoring a significant integer supportive of the applicant, namely that she was the wife of a tribal sub‑chief and as such was a member of a social group that is subject to strict observance of tribal practices. Although accepting that the applicant was married and was beaten by her husband, no finding as to the applicant’s social position and the precept to enforce tribal law by which he was bound was made.
The submissions in support of this ground emphasised the central element in what had become the applicant’s claims at the hearing before the Tribunal, that is, her fear that on return she would be forced to undergo circumcision due to her relationship with a sub‑chief of her village, who was her husband.
However, in my opinion, the Tribunal did deal with this contention under the heading “Fear of FGM”. In the following passage, it clearly referred to the “integers” of this claim, and then discussed and reached a conclusion on it:
The Tribunal asked the Applicant whether she was saying, in effect, that she only became fearful of being circumcised after her husband became a sub‑chief in February 2002. The Applicant stated that the persecution started when her husband became a sub‑chief. She said that her husband and the elders in the clan demanded that all the wives of the chiefs be circumcised. She said that when she told them she did not want to be circumcised, “that is when the persecution started”. She [t]old the Tribunal that there were many arguments with her husband over her refusal to be circumcised and that her husband had beaten her.
Independent country information (see above) states that the practice of FGM has been illegal in Ghana since 1994; that where the practice continues illegally, this occurs in remote villages, mostly in the north of the country; on girls under 15 years of age; and within tribes other than Ashona. Whereas the Applicant was born in the capital city of Accra in the south; lived all her life in either Accra or Komasi (the second largest city in Ghana; and the centre of the Ashanti area); is aged 35; has had 3 children; is well‑educated (as is her husband); and is a Christian. (the Tribunal’s emphasis)
As I pointed out to the Applicant at the Tribunal hearing, I am therefore satisfied that the Applicant’s claims in relation to both the “general” practice of FGM and her own personal circumstances, are inconsistent with the above independent country information available to the Tribunal.
I am satisfied that the Applicant was never threatened with FGM, either by her husband or by anyone else. I am also satisfied that she does not hold a genuine fear that if she returns to Ghana, she will be forced to be circumcised against her will; or that she genuinely fears that she would not be protected by the authorities in Ghana; or that she genuinely believes that because most of the police are men, they are the beneficiaries of the circumcision practice; or genuinely believes that the policy of circumcision has been adopted and implemented by the government of Ghana.
I find that the applicant does not hold a genuine fear that if she returns to Ghana she will be circumcised against her will or suffer adversely because of her anti‑FGM opinions.
In the first paragraph that I have quoted above, it is clear in my view that the Tribunal has been fully alive to the status and tribal position of the husband which the applicant put forward to explain her claimed fears. I consider that the Tribunal has expressly accepted or assumed the truth of his position, but has rejected the claim on the basis of its finding that a person in her position would not hold a subjective fear of being forced to undergo circumcision. The Tribunal, it is clear, has been impressed by the country information, and has regarded this as inconsistent with the applicant’s claims.
I am unable to read the above passage as showing the Tribunal has overlooked the significance of the position of the husband, and I cannot find jurisdictional error of the sort raised by the application (c.f. NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [55‑63]).
The applicant’s representative sought to persuade me that the Tribunal had misunderstood and ignored the applicant’s claims in relation to pressures from the elders of her clan. He argued that this error appeared earlier in its discussion, where the Tribunal said:
The Applicant also stated that when she moved to Accra after her shop was burnt down, her husband joined forces with the police and the authorities to “make hell” for her and the AGLOW Women’s Fellowship.
It was argued that this incorrectly quoted the applicant’s answer to question 41 in the visa application which I have extracted above at [8]. In particular, because the applicant had said:
My husband had also joined with the elders and police to make life hell for me in particular and the AGLOW WOMEN’S FELLOWSHIP. (my emphasis)
However, this point does not persuade me that the Tribunal overlooked the significance of the applicant’s claims arising from the fact that her husband was a sub‑chief, nor that the applicant claimed to fear pressure for circumcision from the elders in the clan. The Tribunal’s statement which was focussed upon, appeared under the heading “Political activities”, and occurred in a discussion by the Tribunal where it addressed whether the applicant had well‑founded fears of persecution by Ghanaian authorities based on her political opinions or activities. It is understandable, therefore, that the Tribunal when paraphrasing this particular element in the visa application would refer to “the authorities” as a collective reference to “elders and police”. The Tribunal’s conclusion in relation to the “political” elements in her claims was that the applicant “never has had any political profile in Ghana, and has never come to the adverse attention of the authorities because of her political opinions or her activities”. That conclusion was not challenged in the application before me.
The application before me also has not challenged the Tribunal’s conclusions in relation to the applicant’s fears based on domestic violence, and there is no need for me to analyse the Tribunal’s reasoning when rejecting those claims.
For the above reasons, I am not persuaded that the application has identified jurisdictional error affecting the Tribunal’s decision. The Tribunal’s decision is therefore a “privative clause decision” for which relief is barred by s.474(1). I must therefore dismiss the application.
RECORDED : NOT TRANSCRIBED
I order the applicant to pay the first respondent’s costs in the sum of $5,000.

I certify that the preceding twenty‑seven (27) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 30 August 2005