SZHMZ v Minister for Immigration
[2006] FMCA 1107
•1 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHMZ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1107 |
| MIGRATION – Visa – protection visa – application for review of a decision of the Refugee Review Tribunal not to grant a protection visa to the applicants – where applicant citizens of the Philippines – first applicant is the mother of the second and third applicants – where first applicant claims to have been subject to violence by husband – no convention ground – no reviewable error – humanitarian grounds – Tribunal has no power to decide matter on humanitarian grounds. PRACTICE & PROCEDURE – Costs – applicants in difficult situation – time to pay – exercise of discretion to grant lengthy time to pay. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.474 |
| Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 Yo Han Chung v University of Sydney [2002] FCA 186 |
| Applicant: | SZHMZ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3223 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 1 August 2006 |
| Date of last submission: | 1 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 1 August 2006 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Ms McNaughton |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The title of the First Respondent is changed to the Minister for Immigration & Multicultural Affairs.
I dispense with the requirement of litigation guardian for the Second and Third Applicants.
The Application is dismissed.
The First Applicant is to pay the First Respondent's costs fixed in the sum of $4,000.00.
I allow three (3) years to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3223 of 2005
| SZHMZ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The decision was signed on 5th September and handed down on 22nd September 2005.
The Tribunal affirmed the decision of a delegate of the Minister not to grant protection visas to the three Applicants.
Background
The three applicants are a mother, who is an adult, and her two children, both of whom are infants. They are citizens of the Philippines. They arrived in Australia with the Applicant's husband on 10th March 1999.
The Tribunal Member noted that the husband has since left Australia. The Applicant lodged an application for Protection (Class XA) visas for herself and the two children on 14th April 2005. On 26th April 2005 the Minister's delegate refused the application and on 20th May 2005 the Applicants applied for a review of that decision.
The application for review was made by the First Applicant on behalf of the two children. The Applicant did not provide any other information to the Tribunal with that application. The Tribunal invited the Applicants to attend a hearing.
The First Applicant attended and gave oral evidence on 1st September 2005. The Tribunal noted that she was not legally represented. She did not require an interpreter. Indeed, she did not require an interpreter for proceedings before me today. She speaks fluent English. The Tribunal noted that only the First Applicant had made specific claim under the Refugees Convention and the two children rely on their membership of the Applicant's family.
The Tribunal noted the Applicant's claim that after the family arrived in Australia in 1999 that the Applicant's husband became a different person and abused her mentally, physically and socially. She complained that he hit her and embarrassed her in front of other people. She did not report this abuse to the police because she thought that would cause more trouble. He left her on 23rd March 2005 to return to the Philippines.
The Applicant told the Tribunal that she feared that if she returned to the Philippines the husband would kill her and take the children as he had threatened. She said he is a very powerful person and has the ability to persecute her. The Tribunal Member asked the First Applicant a number of questions about her situation. She told the Tribunal that she had not worked since coming to Australia and her husband did not work either because they did not have permission to work. They obtained financial assistance from their church and sometimes her husband's older daughter, who is an Australian citizen, was able to give them financial assistance. She gave evidence about the physical abuse directed towards her and the Tribunal asked questions about such issues as what would stop her and her children from going to another part of the Philippines to live. The Applicant indicated that she had led a sheltered life in the Philippines and had no experience of living anywhere in the Philippines apart from the area from where she came. She again told the Tribunal that the husband was an influential person and she feared that he would make trouble for her.
The Tribunal’s Findings and Reasons
The Tribunal considered country information relating to domestic violence legislation passed in Cebu City. The Tribunal quoted from that information extensively on pages 116 through to 119 of the Court Book. The Tribunal's findings and reasons are set out on pages 119 to 121 of the Court Book.
The Tribunal Member noted that the Tribunal was required to determine whether the Applicant has a well-founded fear and if so, whether what she fears amounts to persecution for a Convention reason. The Tribunal accepted that the applicant was a national of the Philippines. The Tribunal went on to say at page 119 of the Court Book:
In my view, the Applicant gave evidence in a straightforward manner without exaggeration or embellishment. I consider that the Applicant's evidence was credible. I accept that the Applicant had a difficult relationship with her husband and that he was violent towards her on occasions. The Applicant's evidence indicated that this generally occurred in the context of an argument approximately every three months or so. I accept that a significant factor affecting the Applicant's relationship with her husband was the fact that her husband's children did not like her and that her husband took their part in any conflict.
The Tribunal went on to find, however, later on that same page, that in the Tribunal's view the harm suffered by the Applicant at the hands of the husband was not essentially and significantly for reasons of her race, her religion, her nationality, her membership of a particular social group or her political opinion.
The Tribunal concluded that the Applicant's husband had mistreated her because he considered that he had a right to physically hurt her when he became angry during an argument. The Tribunal formed the view that this harm was directed at the Applicant because of her personal relationship with him and not for a Convention reason.
The Tribunal at page 120 went on to find that the Tribunal accepted that the Applicant had a genuine subjective fear that her husband would continue to harm her if she were to return to the Philippines. However, the Tribunal did not accept that the Applicant's estranged husband would again mistreat her. The Tribunal went on to find:
In any event, even if contrary to the finding I have made the Applicant's husband did seek to harm the Applicant if she returned to the Philippines, I am not satisfied that the Philippines authorities would deny protection to the Applicant for a Convention reason.
The Tribunal went on to say:
I do not conclude on the evidence before me that the Applicant would be refused assistance for reasons of her race, religion, nationality, membership of a particular social group or political opinion.
The Tribunal accepted that the Applicant has a genuine subjective fear of returning to the Philippines. The Tribunal went on to find, however, that the Applicant had not claimed to fear persecution for any reason other than that arising from her husband's violence towards her and no other reason was raised on the evidence before the Tribunal. The Applicant indicated that she would have difficulty in finding employment on return to the Philippines but the Tribunal was not satisfied on the evidence that any difficulty the Applicant might have re-establishing herself in the Philippines would amount to persecution for a Convention reason.
Whilst the Tribunal noted that there were strong humanitarian considerations in the Applicant's current circumstances, the Tribunal was not able to take those into account in making a decision in the Applicant's case. Accordingly, the Tribunal was not satisfied that the First Applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. No specific Convention claims were made on behalf of the Applicant children and the fate of their application depended on the outcome of the First Applicant's application. As a result, the Tribunal was obliged to affirm the decision not to grant protection visas.
Application for Judicial Review
The Applicant by means of an application filed on 3rd November 2005 seeks a review of this decision under s.39B of the Judiciary Act 1903. In that application she sets out one claim, which is:
Applying for a judicial review from the decision of the RRT.
The Applicant sets out one ground:
My claim is if I go back to my country, Philippines, my husband will harm me as well as his family. I have so much fear from their persecution.
The Applicant has not filed any written submissions but attended Court on the hearing today and made oral submissions to the Court. She told the Court of her genuine fear of going back to the Philippines. The situation is still the same as it was at the time of the Tribunal hearing. She told the Court that her husband had left more than a year ago. They are not divorced at this stage. When she spoke to him on the phone he indicated that he had changed his mind about obtaining a divorce for financial reasons and she herself was still thinking about what was a proper course to follow.
The Applicant told the Court that she had had legal advice from a lawyer on the Refugee Review Tribunal Legal Assistance Panel. She asked the Court about the availability of protection for her and her children in a way that she would be able to remain in Australia. She told the Court that she had a fear of returning to the Philippines not only on her own behalf but as to the fate of her children and she pointed out that the children were at school in Australia and so far they were doing well.
I have read the written submissions on behalf of the First Respondent Minister. Indeed, it was put to me by Ms McNaughton of counsel, being counsel for the Minister, that the Applicant had not provided to the Tribunal as part of her case evidence of a fear from her husband's family, even though the Tribunal Member I note indicated that part of the husband's violence towards the First Applicant was because his children from an earlier marriage, he being a widower, did not like the Applicant. The ground given by the Applicant in my view is as submitted by counsel for the Respondent Minister, namely, it is an attempt to seek review on the merits, which is not available to the Court.
The decision made by the Tribunal was one in my view that was open to the Tribunal to make. The Tribunal essentially found that even though the Applicant was a credible witness and had suffered domestic violence, this was not violence towards her for a Convention reason. The Tribunal was not persuaded that even though the Applicant has a genuine subjective fear of violence or harassment from her husband if she were to return with the children to the Philippines the ground had been established. I think it is trite law that merits review, namely, a rehearing on the facts, is not available on judicial review and I refer to the decision of Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
As to a claim that the applicant would suffer harm from the husband's family on return to the Philippines, there is no evidence that that claim was raised before the Tribunal and indeed it was not apparent on the face of the material before the Tribunal and I am referred to the decision of the Full Court in NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at [55] to [63]. Accordingly, it is submitted on behalf of the Respondent, and I believe correctly, that no jurisdictional error has been shown.
I am mindful of the fact that the Applicant is not legally represented, although I am aware that she had some legal advice through the Refugee Review Tribunal Legal Advice Scheme. She has certainly not been represented before the Court today and she has put her own case. She speaks very good English but she is not of course a trained lawyer. Her history is that she attempted a university course but did not complete it. As an unrepresented person, albeit one with a good command of English, she would be at a substantial disadvantage in arguing a case against a legal team on behalf of the Minister, including a very experienced barrister instructed by a very experienced solicitor.
I am mindful of the decision in the Federal Court in Yo Han Chung v University of Sydney [2002] FCA 186 and I have examined the material myself on an independent basis in order to ascertain whether I can find an arguable case for relief on the basis of the material. I am unable to discern any. It would appear then that no jurisdictional error has been made out and it is apparent that the reason why the Tribunal was not able to find in favour of the Applicant is because the harm that she claims, and I am mindful of the fact that the Tribunal accepted the Applicant as a witness of truth, was not harm for a Convention reason. As such, the Tribunal had no option but to affirm the decision of the delegate. It would mean therefore that the application must be dismissed.
There are two other matters to which I seek to refer. The Second and Third Applicants are infants. They have no separate claim other than being part of their mother's family. I have made the decision that because of their limited role in the proceedings and the fact that it was not ever a case that they would play any separate part in these proceedings, there is no necessity for a litigation guardian to be appointed. I will dispense with the requirement for the children to have a litigation guardian.
There is one other matter to which I would refer and that relates to material that appears on page 121 of the Court Book. The Tribunal found that it was obliged to affirm the decision of the delegate not to grant the Applicant a protection visa. It is clear that the Tribunal formed a favourable opinion of the Applicant's credibility. The Tribunal, as I referred to earlier, at page 119 described the Applicant's evidence as credible and accepted the circumstances as described by the First Applicant.
The Tribunal accepted that the Applicant has a genuine subjective fear of returning to the Philippines. The Tribunal referred to that on two separate occasions, both of which appear at page 120 of the Court Book. At page 121, after the Tribunal found it was not satisfied that the Applicant had a well-founded fear of persecution for a Convention reason, the Tribunal said this:
That said, the Applicant has had a very difficult time and has been a victim of domestic violence. She and her children have been in Australia for a number of years. It would no doubt be difficult for the Applicant's children in particular to settle in to life in the Philippines.
In addition, it would not be easy for the Applicant to re‑establish herself in the Philippines with two young children to support, particularly given that the Applicant's mother and siblings also struggle financially and would be unlikely to be able to offer her much assistance. The Applicant's current circumstances may give rise to humanitarian considerations. However, this is not a matter which I can take into account in making a decision in the Applicant's case.
In my view, and with respect, this is an eloquent and comprehensive description by the Tribunal of the Applicant's case for humanitarian consideration. I have had the opportunity of hearing the Applicant making oral submissions to the Court today. In my view, the Applicant's submissions to the Court and her general demeanour reinforce the conclusions reached by the Tribunal Member as to humanitarian considerations that need to be given serious consideration.
I am aware from the Court Book that the Applicant's estranged husband previously made an application to the Minister for intervention by exercising the Minister's discretion under s.417 of the Migration Act. The circumstances there were very different and the Applicant's situation bears very little relationship to that set out in the Applicant's estranged husband's application.
I am of the view that once the Applicant's Court proceedings in this or any other Court have been completed, that there would be a strong case for consideration by the Minister of the case of the Applicant and her two children in respect of the discretion given to the Minister under s.417 of the Migration Act. It is not a matter where the Court can make any order. The decision is for the Minister to make and the Minister alone. Nevertheless, the length of time that the Applicant has spent in Australia, her subjective fear and the length of time that the children have spent in Australia and their integration into the Australian education system has of course increased by nearly a year since the proceedings were heard by the Refugee Review Tribunal. If anything, the Applicant would have a stronger case for consideration on humanitarian grounds than she had at the time of the Tribunal hearing. That is a matter for the future. That is a matter which in my view needs to be given serious consideration.
Unfortunately, as I am satisfied that the Tribunal did not fall into error in rejecting the Applicant's claim as not being Convention based, the application must be dismissed. The decision is a privative clause decision under the provisions of s.474 of the Migration Act and consequently the decision attracts the protection of that section.
There is an application for costs on behalf of the Minister in respect of the First Applicant only, who is the only adult applicant. The amount sought is $4,500.00 inclusive of counsel's fees. The Applicant has pointed out that she just does not have the funds to meet it and I am prepared to accept that is the case. She indicates that she is living on charity that she receives in the community and she has the support of the two children of the marriage to the husband. She has told the Court, and I see no reason to doubt her, that she receives no payments in the way of child support from her estranged husband in the Philippines. The children, in other words, rely on her.
There would be in the mother's present situation a considerable degree of hardship not only to the mother but also to the children if I were to make a costs order that required immediate payment or indeed payment within the 28 days normally allowed by the rules.
Unfortunately, financial considerations do not directly impinge on the question of making an order for costs, although an order for costs is a matter within the Court's discretion. Certainly the amount sought is a standard amount. It is an appropriate amount. It includes counsel's fees and there is nothing in the way that the Minister's lawyers have run the case which would cause any criticism of the Minister's lawyers whatsoever. They appear to have handled this case with economy and done their best to bring this case on as soon as they can and proceed with the case in an appropriate manner. There is a strong argument therefore there should be an order for costs and certainly, as I said, $4,500.00 would be appropriate.
Against that, there are the Applicant's financial circumstances, which are precarious to say the least, and even though no order for costs is sought against the children, any costs order payable by the mother in the near future would, as I said, have a deleterious effect on the children. Those are matters that I do consider should be taken into account.
I am mindful of the fact that this is a case where the Refugee Review Tribunal has set out strongly and eloquently the humanitarian circumstances that the Applicant and her children find themselves in. I have endorsed those comments and if at the conclusion of the applicant's legal proceedings she considers it appropriate to make such an application under s.417 of the Migration Act to the Minister, then I would hope that the Court's comments and the Tribunal's comments would be taken into account in this Applicant's favour. It is for these reasons that whilst I will make an order for costs, I propose to allow a most unusual order, I propose to allow three years to pay. I am of the view that in light of the strong humanitarian considerations, that the Commonwealth of Australia can indeed wait for that lengthy period of time in order to receive the money to which it is otherwise entitled.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 4 August 2006
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