SZIYY v Minister for Immigration - [2007] FMCA 1524

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIYY v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1524

MIGRATION – Review of Refugee Review Tribunal decision – where Tribunal found applicant’s claims to be not credible – where Tribunal treated non-probative material as probative – whether Tribunal ignored relevant material – where Tribunal misunderstood evidence – whether decision affected by apprehended bias – whether breach of s.425 Migration Act 1958 – whether Tribunal obliged to put to applicant that it believed she was lying.

Migration Act 1958, s.425

Minister for Immigration v Yusuf (2001) 206 CLR 323
Craig v South Australia (1995) 184 CLR 163
SZCSC v Minister for Immigration [2007] FCA 418
SZBEL v Minister for Immigration [2006] HCA 63
SZILQ v Minister for Immigration [2007] FCA 942
Commissioner for Australian Capital Territory Revenue v Alpha One Pty Limited (1994) 49 FCR 576

Applicant:

SZIYY

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG1788 of 2006

Judgment of:

Raphael FM

Hearing date:

23 August 2007

Date of last submission:

23 August 2007

Delivered at:

Sydney

Delivered on:

23 August 2007

REPRESENTATION

Solicitors for the Applicant:

Parish Patience Immigration Lawyers

Counsel for the Respondent:

Mr Kennett

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

Application dismissed.
Applicant to pay First Respondent’s costs assessed in the sum of $5000.00.
The name of the First Respondent be amended to “Minister for Immigration and Citizenship”.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1788 of 2006

SZIYY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Syria. She arrived in Australia on 9 April 2005 as the holder of a prospective spouse visa.
On 14 October 2005 she applied to the Department of Immigration and Multicultural Affairs for a protection (class XA) visa. The delegate refused to grant that visa on 20 January 2006. The applicant applied to the Tribunal for review of the delegate’s decision on 30 January 2006. The Tribunal held a hearing at which the applicant was represented by a migration agent and to which she brought witnesses. On 8 May 2006 the Tribunal determined to affirm the decision under review and published that decision on 30 May 2006.
The ground upon which the applicant sought the protection of Australia was that as a result of her engagement breaking down she would be considered a disgraced woman in her homeland and was liable to suffer an honour killing. The evidence which the applicant produced in support of this claim included a letter found at [CB89] which is in the following terms:
“We the undersigned [applicant’s family] from the Republic Arab Assyria at [village named] Al Hasaka Province, of Ancient Eastern Assyrian faith confirm the following:
We are very strict as for our traditions that are different from those of the West, when a girl run away for the purpose to get married, in case the marriage does not occur, she will face the death if she returns back home, because our dignity and honour are sacred.
Accordingly we, parents and brothers of the girl called [applicant], refused to allow her to come back home and are willing to kill her on the spot.
This statement is signed before the Mayor of [applicant’s home].”
There is also provided at [CB87] a letter from the priest of the church in the applicant’s home which stated inter alia:
“The dissolution of the engagement broke her life and her future and according to the customs and traditions prevailed in our oriental society especially for those who live in far remote villages, who will still strongly stick to the old customs and traditions; the above named became outcast and hateful by her community and nobody approached to engage her again.”
The witness produced by the applicant was a relation who provided a written statement at [CB91]-[93] which she told the Tribunal was accurate. That written statement included information that the applicant’s brother was planning to kill her if she came back.
The Tribunal’s findings and reasons commence with it setting out in full the applicant’s own statement, which deals primarily with the very unfortunate situation in which she found herself once she had travelled to Australia to marry her fiancé. Interestingly that statement does not make the serious accusations against her own family that later appeared. She says at [CB130]:
“If I go back to my country and village, I don’t think there will be a young man who will courage to think of getting engaged to a girl who became according to our Eastern thinking a dishonour to them. For these things are judged according to their traditions and many girls are killed in our Arab countries because of this set of mind and traditions. And many girls were victims to such people like Milad who spread a word against them because he didn’t reach and get his evil desires. For their families a bullet can silent the rumours and blame of people to wash their disgrace [sic].”
There is no indication here that the applicant had the particular fear of her brother that was elicited from her by the Tribunal: [CB133].
The Tribunal put to the applicant certain independent country information set out at [CB134]. Part of that country information refers to a report on honour killings in Turkey.
“Frequently, Honour Killings are conducted in an even more calculated manner according to women’s rights lawyers, and police officials. In the feudal, patriarchal society of rural villages where a woman’s honor is a family’s only measurable commodity in an impoverished community, male family members gather to vote on the death of women. They also decide who will carry out the killing - usually someone under the age of 18 who will be treated more leniently under the law.”
There then follows a reference by the Tribunal to a remark made by it to the applicant which is best found at the transcript at [T20].
“Q: Now, independent evidence suggests that usually the people who carry out the killings are men under the age of 18 who are treated more leniently under the law. So the fact that your brother is 33 suggests that he is less likely to be a person who is going to harm you, given his age?
A: [Applicant’s brother] can do anything - kill, beat - without knowing consciously what he is doing.”
Thereafter the Tribunal refers to some independent country information which comes from Syria and that is discussed with the applicant. The gravamen of this information is that this type of killing is not approved of by the religious authorities, either Muslim or Christian, in Syria. At [CB136] the Tribunal refers to other independent country information which indicated that instances of honour crimes were rare and occurred primarily in rural areas in which Bedouin customs prevail. There were no reported cases during the year 2004.
The Tribunal’s findings and reasons deal first with the applicant’s credibility. At [138] the Tribunal states that it did not find the applicant to be a witness of truth and that:
“The applicant’s claims and evidence at the hearing were implausible and contradictory and, significantly, inconsistent with the independent evidence. The Tribunal therefore, cannot be satisfied that the applicant has been truthful in her claims and evidence, and cannot be satisfied that she has any claims to have a well founded fear of persecution for a Convention reason.
…..
The applicant’s claims and evidence are to the effect that she fears harm from her family, in Syria, because of a broken engagement in Australia. Her claims and evidence are to the effect that her family believe she has brought dishonour to the family and she will be killed by them upon return to Syria.”
This extract from the Tribunal’s findings and reasons has been emphasised because under a separate heading “The applicant’s supporting documents and witnesses” the Tribunal says:
“The Tribunal has found the applicant’s claims in evidence to be wholly lacking in credibility. The Tribunal has found the applicant to have been untruthful to the Tribunal.”
A statement as broad as this would cause concern when there does appear to be very significant and unchallenged evidence about the breakdown of the relationship between the applicant and her fiancé. I am, however, satisfied that the reference by the Tribunal to the applicant’s claims and evidence does not refer to this part of her story but to the claims and evidence identified in the emphasised part of the Tribunal’s decision above; namely, the prospect of her being harmed if she returned to Syria.
The Tribunal gives a number of reasons why it does not accept the applicant’s evidence about these matters. The first relates to the manner in which she arrived in Australia. The applicant came unaccompanied. The Tribunal took the view that this was inconsistent with the evidence she had given about the conservative and religious attitudes that prevailed at her home.
The second matter related to disparaging statements and rumours spread in Syria by the applicant’s former fiancé. The Tribunal noted that although this may have happened there was significant evidence (which it appears to have accepted) that at least two religious personages, a priest in her community in Syria and a pastor in Australia, had contacted the family and interposed on the applicant’s behalf so that the parents had come around to the view that what occurred in Australia was not the fault of the applicant. The Tribunal considered that this was inconsistent with the statutory declaration which I have extracted at the commencement of these reasons at [CB139].
“The Tribunal finds the applicant’s claims with regard to the disparaging comments that her former fiancé has made and the reaction of her family and community in Syria to lack credibility. In light of the applicant’s contradictory claims and evidence and the fact that no one in Syria actually ever makes mention of any disparaging comments or rumours, the Tribunal cannot be satisfied that she has been truthful about these claims and gives them no weight.”
The next matter deals with the letter from the applicant’s parents, which the Tribunal believes is also inconsistent with her evidence that the parents had been convinced by the pastor that the applicant had done nothing wrong and that they did not want her to be harmed:
“The Tribunal finds this letter from the applicant’s parents and family to be written with the sole purpose of enhancing the applicant’s claims for refugee status. The Tribunal finds this letter to be self-serving and disingenuous and gives it no weight.”
The Tribunal then turns to what it describes as the independent evidence. Firstly:
“The Tribunal notes that the applicant lives in a village (not the country) and that they are Assyrian Christians not Bedouin.”
It then continues:
“The Tribunal notes the applicant’s claim that it is her eldest brother who is seeking to kill her. The Tribunal notes the independent evidence which suggests that persons who usually carry out the killing is someone under the age of 18 who will be treated more leniently under the law. The applicant gave evidence that her brother is 33 years old…..
In the light of the independent evidence and the inconsistencies between this independent evidence and the applicant’s claims in evidence, and given the Tribunal’s prior grave and adverse findings on the applicant’s credibility the Tribunal gives weight to the independent evidence over and above that of the applicant.”
It should be stated here that the balance of the paragraph relates to independent evidence from Syria. Finally, the Tribunal deals with the supporting document and witnesses as I have described. It notes that both the applicant’s witnesses were related to the applicant by marriage and had a vested interest in assisting her in whatever means they could.
The applicant filed an amended application in which she claimed that the Tribunal had fallen into jurisdictional error in three ways. The first was that the Tribunal had relied on irrelevant material, that material being the independent country information relating to Turkey.
The applicant relies upon the much quoted statement of McHugh, Gummow and Hayne JJ in Minister for Immigration v Yusuf (2001) 206 CLR 323 at 351 [82] where the Court defined jurisdictional error by quoting from Craig v South Australia (1995) 184 CLR 163 at 179:
“As was said in Craig v South Australia (1995) 184 CLR 163 at 179, if an administrative tribunal (like the Tribunal):
“falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is a jurisdictional error which would invalidate any order or decision of the Tribunal which reflects it.””
The applicant also points out that in the same paragraph their Honours stated:
“The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material, or relying on irrelevant material in a way that affects the exercise of power is to make an error of law.”
But this paragraph followed an earlier paragraph in which their Honours had said:
“[74] What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations the concern essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts.”
To my mind there is little relevance in independent country information about honour killing in the Bedouin communities in Turkey to a claim of honour killing made by an Assyrian Christian in Syria and it would have been best had the Tribunal ignored that altogether and concentrated instead upon the independent country information that it did have concerning Syria. But as Mr Kennett argues, to treat non- probative material as probative is merely to make a factual error, not a jurisdictional error, and whilst this can be an indicator of jurisdictional error or of looking at the wrong issues, it is not indicative of that in this particular case. He argues that the Tribunal has given more weight than it should have done to tenuously relevant evidence, which I believe puts the matter at its highest.
I am also of the view that a consideration of [74] and [82] of Yusuf indicates that it is the error of law which causes the Tribunal to look at the irrelevant material. In other words the Tribunal has a misconception of the proper issues and that causes it to rely on irrelevant material and thereby fall into jurisdictional error. In this case there was no misconception of the issues; there was the bringing into the consideration of the issues some evidence of dubious validity. I am therefore unable to accept the submission of Mr Turner that the Tribunal fell into jurisdictional error in the manner in which it dealt with the information from Turkey.
During the course of discussions between myself and counsel, reference was made frequently to the comments by the Tribunal about a killing usually being carried out by a person under the age of 18 years and the Tribunal’s comment that this indicated that the applicant had nothing to fear from her brother. It seems clear to me that the Tribunal misunderstood this piece of evidence as well. It should not have relied on it. Apart from the fact that the evidence relates to Turkey and not Syria, it is also clear that it is not only persons under the age of 18 years who decide to kill relations on the grounds of honour, it is in fact persons over the age of 18 years who make the decision to perform these killings and then have them carried out by a person in his or her minority. Thus the applicant was perfectly entitled to have fear of her brother notwithstanding he was over the age of 18 years because presumably he would get a person under the age of 18 years to carry out the murder.
Once again I do not think that this misconception of the evidence by the Tribunal constitutes more than a factual error and thus does not constitute an error going to jurisdiction.
The second ground of the application is that the Tribunal’s decision was affected by apprehended bias. The applicant refers in this regard to the decision of Mansfield J in SZCSC v Minister for Immigration [2007] FCA 418 at [38] to [40]:
“[38] The test for apprehended bias in relation to a body such as the RRT is whether a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias might reasonably apprehend that the RRT might not bring, or might not have brought, an impartial mind to the resolution of the question to be decided: see per Gleeson CJ, Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at 434-435, at [27]-[28] and the cases cited at fn 7.
[39] There is nothing to suggest the RRT conducted the hearing in a way which might indicate a closed mind on its part. The only evidence as to how it conducted its hearing is from its own recital of those events. They disclose only a firm testing of the claims made by the appellant, in some instances by confronting him with inconsistencies in documentary materials and in the statements of himself and others.
[40] It will be rare that an allegation of ostensible bias will be made out on an analysis of evidentiary materials before the RRT and its assessment of them, where otherwise no legal error is disclosed in its reasoning: see SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at 756, at [44] and the cases cited there.”
Whilst the applicant concentrated on paragraph 38 it is as well to recall paragraph 40 because in this particular case, the only reference to evidence made by the applicant was the paragraph in the transcript at [T20] that I have already extracted concerning the age of the applicant’s brother.
The other area in which the applicant argued that the Tribunal showed apprehended bias was when it made a reference in its findings and reasons to the applicant living in a village at [CB136], which it considered to be inconsistent with the country information that honour killings were most prevalent in rural areas. The applicant argues that between a village and a rural area there is a distinction without a difference. This may be the case but it should be pointed out that the applicant did in the course of her evidence refer to the place in which she lived as a town [T2].
I am unable to hold that a hypothetically fair-minded layperson properly informed as to the nature of these proceedings would say that these two examples indicate that the Tribunal might not have brought an impartial mind to the resolution of the question to be decided.

I think that it is important to take the Tribunal’s decision as a whole and not simply rely on two individual extracts. Whilst the remarks concerning the applicant’s brother can be criticised they do not in my view go so far as to indicate apprehended bias.
The applicant also raises in her written submissions that the Tribunal misunderstood and misrepresented the evidence from her witnesses arguing that the evidence from her family was clearly intended to refer to what would happen to her if she returned to Syria, that the threats were said to relate to honour and that the Tribunal failed to accept that religion and honour are distinct and that in the particular circumstances of the applicant and her family honour was a motivation which was not overridden by the family’s religion.

These matters were not raised in arguendo but I do not believe that the Tribunal failed to understand what the evidence that was given by members of the applicant’s family referred to. Even if the Tribunal did fail to accept that religion and honour were distinct and that honour was a motivation which was not overridden by the family’s religion I have difficulty in seeing that this points to apprehended bias, which is usually found in cases where the Tribunal’s decision is one in which the only explanation for the findings is a failure to look at the material with an open mind.
The final ground raised by the applicant was that the Tribunal had breached its statutory duty under s.425 Migration Act 1958 to give the applicant a genuine and realistic opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review. The applicant strove to bring her case within the ambit of that considered by the High Court in SZBEL v Minister for Immigration [2006] HCA 63 and SZILQ v Minister for Immigration [2007] FCA 942 arguing that nowhere did the Tribunal put to the applicant its concerns about her credibility, nor did it put to her that it did not give weight to the letter from her family.
My reading of the Tribunal’s decision and of the transcript leaves me with the impression that the question of whether or not the applicant might be the subject of an honour killing should she return to Syria was very much on the mind of the Tribunal. It was in effect the essential issue in the case. The delegate had indicated that he did not accept that this would occur, therefore the applicant was on clear notice that it was her obligation to satisfy the Tribunal of it. This does not seem to me to be an issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made, or an adverse conclusion which has been arrived at which would not obviously be open on the known material: Commissioner for Australian Capital Territory Revenue v Alpha One Pty Limited (1994) 49 FCR 576 at 591-592.
The High Court has made it quite clear that a decision-maker is not obliged to put to an applicant that it believes that he or she is lying and that is in effect what the applicant is arguing for here. The Tribunal did point out to the applicant the inconsistency between the statement from her family and her evidence that the pastor and the local priest had told them that she had not dishonoured them, and it must follow from that that the applicant would understand that the Tribunal had concerns about the veracity of the statement. It might be implied additionally that the Tribunal would have concern about the statement from the very face of the document in which an entire family appears before the local mayor to make a threat which independent country information clearly indicates is illegal. I am unable therefore to find that the Tribunal fell into jurisdictional error in this way as alleged by the applicant.
There can be no doubt that this applicant has not seen the best side of Australian society since her arrival. It is certainly possible that, notwithstanding that what has occurred appears to have been entirely the fault of her fiancé, she will suffer in some way upon her return, although probably not to an extent that could be classified as persecution. It may well be that a Minister considering the facts of this case may find him or herself minded to grant the applicant the right to remain in Australia on humanitarian grounds.
I dismiss the application. I order that the applicant pay the First Respondent’s costs which I assess in the sum of $5000.00.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 5 September 2007