SZIYY v Minister for Immigration and Citizenship

[2008] FCA 366

FEDERAL COURT OF AUSTRALIA

SZIYY v Minister for Immigration and Citizenship [2008] FCA 366

SZIYY v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1864 OF 2007

BRANSON J
20 MARCH 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1864 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIYY
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BRANSON J
DATE OF ORDER:	20 MARCH 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the costs of the first respondent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1864 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIYY
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BRANSON J
DATE:	20 MARCH 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of Syria. She arrived in Australia on 9 April 2005 as the holder of a prospective spouse visa.  She was engaged to be married to an Australian citizen.  On 14 October 2005 she applied to the Department of Immigration and Multicultural Affairs for a protection Class XA visa (s 36 Migration Act 1958 (Cth) (“the Act”)).

2. The appellant sought the protection of Australia as she claimed that as a result of the break down of her engagement she would be considered a disgraced woman in Syria and was at risk of being a target for an honour killing.

3. A delegate of the Minister refused to grant the visa on 20 January 2006 and the appellant applied for a review of the decision to the Refuge Review Tribunal (“the Tribunal”) on 30 January 2006.  The Tribunal held a hearing at which the appellant was represented by a Migration agent and to which she brought witnesses.  The appellant gave evidence at the hearing.  On 30 May 2006 the Tribunal published its reasons for affirming the decision of the delegate.  The Tribunal found that the appellant had been untruthful and that her claim and evidence were lacking in credibility.  In light of these findings the Tribunal gave no weight to the documents the appellant relied on or to her witnesses.

4. On 26 June 2006 the appellant applied to the Federal Magistrates Court for a review of the Tribunal’s decision. The appellant relied on three grounds. First that the Tribunal, in considering independent country evidence, relied on irrelevant material, secondly that the Tribunal’s decision was affected by apprehended bias and thirdly that the Tribunal had breached s 425 of the Act by failing to give the appellant a genuine and realistic opportunity to present her case. On 23 August 2007 the Federal Magistrate dismissed the application for review. The learned Federal Magistrate found that although there may have been misconception of the evidence by the Tribunal this did not constitute a jurisdictional error. Her Honour further found that the Tribunal member was not affected by bias and the appellant was not denied an opportunity to present her case.

5. This is an appeal from the decision of the Federal Magistrate. 

   NOTICE OF APPEAL

6. The notice of appeal includes only one ground of appeal; namely, that the “Federal Magistrate misapplied the legal test of taking into account irrelevant material”.  The following particulars are provided of this ground of appeal:

   a.The Federal Magistrate characterised the Tribunal taking into account evidence of honour killing in Turkey to assess the Appellant’s claimed fear of an honour killing in Syria as treating ‘non-probative material as probative is merely to make a factual error.’

   To treat non-probative material as probative is the same as treating irrelevant material or considerations as relevant and is capable of amounting to a jurisdictional error.

   b.The Federal Magistrate found that the Tribunal’s reliance on evidence of honour killings being carried out by persons under the age of 18 was again a factual error only.

   Where the Tribunal misconceived the evidence and, as a result, took that misconception into account, it has taken account of irrelevant material or consideration which may amount to a jurisdictional error.

   CONSIDERATION

7. As mentioned above, the Tribunal found that the appellant was not a witness of truth.  It was not satisfied that her claims to fear harm in Syria were credible.  In addition to finding that her claims and evidence at the Tribunal hearing “were implausible and contradictory, and significantly, inconsistent with the independent evidence”.

8. The independent evidence upon which the Tribunal relied came from three sources.  First, the Tribunal referred to a 2004 US State Department Country Report on Human Rights Practices in Syria released by the Bureau of Democracy, Human Rights and Labor on 28 February 2005.  Secondly, it referred to a report from the Washington Post Foreign Service dated 8 August 2001 entitled ‘In Turkey, “Honor Killing” Follows Families to Cities Women are Victims of Village Tradition’.  Thirdly, it referred to a report from the UN Office for the Coordination of Humanitarian Affairs dated 23 October 2005 which reported statements made by the Grand Mufti of Syria and the Syrian Minister of Religious Endowments respectively.

9. Only the report from the Washington Post Foreign Service concerning “honour killings” in Turkey is relied on for the purposes of this appeal.  The passage from the report upon which the Tribunal placed reliance is as follows:

   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.  (emphasis added by the Tribunal)

10. It is necessary, however, to consider the way in which the Tribunal used the report from the Washington Post Foreign Service and the other material that it designated “independent evidence”.  The relevant passage from the Tribunal’s reasons for decision include the following paragraphs under the heading “The independent evidence”:

    The independent evidence suggest[s] that instances of honor crimes are rare and occurred primarily in rural areas in which Bedouin customs prevail. There were no cases reported during the year 2004.  The Tribunal notes that the applicant lives in a village (not the country) and that they are Assyrian Christian not Bedouin. The [sic]

    The Tribunal notes the applicant’s claims that it is her oldest brother who is seeking to kill her. The Tribunal notes the independent evidence which suggests that the person who usually carries 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 (Dankha) is 33 years old. Further independent evidence suggests that many religious figures in Syria have condemned the practice of honour killing, which, they say, contradicts religious dogma. ‘He who kills on claims of honour is a killer, and should be punished,’ said Grand Mufti of Syria Ahmen Badr al-Din Hassoun. ‘Islamic jurisprudence doesn’t allow people to live by their own laws.’ He proposed that the Syrian law code be amended to make honour killings – like other instances of murder – punishable with long prison sentences. Furthermore, the Syrian Minister of Religious Endowment Ziyad al-Deen al-Ayoubi agreed that penalties for honour killings should be tougher, noting that the Quran does not condone murder for honour-related transgressions. The Christian church also forbids honour killings

    In light of the independent evidence, and the inconsistencies between this independent evidence and the applicant’s claims and 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.

11. The appellant argued that her fear was that she would be the target of an “honour killing” in a Syrian village and therefore what might, or might not, happen in Turkey was irrelevant to her claim.  She further argued that material relating to “honour killings” by people under the age of 18 years was irrelevant to her fear of being killed by her brother because he was well over the age of 18 years.

12. The Federal Magistrate took the view that there is little relevance in independent country information about “honour killings” in the Bedouin communities in Turkey to a claim of “honour killing” made by an Assyrian Christian in Syria.  However, his Honour rejected the submission that the Tribunal had fallen into jurisdictional error concluding that the Tribunal had merely given consideration to evidence of dubious validity.

13. The Federal Magistrate also concluded that the Tribunal misunderstood the significance of the reference in the Washington Post Foreign Service report to the killing usually being carried out by someone under the age of 18.  His Honour noted, accurately in my view, that the report indicated that it is “male family members” who vote on the death of women and decide who will do the killing.  The reference to “usually someone under the age of 18” refers to the designated killer.  The report says nothing about who may be designated to kill a woman whose family included no male member under 18 years of age.

14. I agree with the submission of the first respondent which was, in effect, that the appellant’s challenge to the relevance of evidence and other material concerning Turkey attributed excessive significance to geographic borders.  The Washington Post Foreign Service article identifies that it particularly concerns the southeast region of Turkey.  Northern Syria abuts Turkey’s south eastern border.  It appears that the appellant’s family comes from the north of Syria.  Additionally, aspects of Turkey and Syrian cultures share common features because of the shared histories of the two countries as part of the former Ottoman Empire. In these circumstances, while another decision-maker may have attributed no, or little, weight to evidence and other material concerning honour killings in Turkey, the appellant has not demonstrated that the Tribunal took into account an irrelevant consideration by giving consideration to the Washington Post Foreign Service article.

15. The precise relevance that the Tribunal attributed to the age of the appellant’s brother is not clearly revealed by the somewhat cryptic reference to this issue in the Tribunal’s reasons for decision.  The most likely interpretation of the Tribunal’s reasoning on this question seems to me to be this:-

    (a)the appellant claims that it is her 33 year old brother who is seeking to kill her; that is, the appellant claims that her brother wishes personally to kill her as opposed to arranging for someone else to kill her;

    (b)according to independent evidence before the Tribunal, usually persons under the age of 18 years carry out “honour killings”; and

    (c)consequently some scepticism with respect to the appellant’s claim is warranted.

16. While many decision-makers would not consider it appropriate or helpful to adopt the above process of reasoning, it cannot, as it seems to me, properly be characterised as taking into account an irrelevant consideration.  Nor do I think that the Tribunal’s approach can be properly described as irrational or illogical (see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59).

    CONCLUSION

17. The appeal will be dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:        20 March 2008

Legal representative for the Appellant:	Mr R Turner
Solicitor for the Appellant:	Parish Patience Immigration
Counsel for the Respondent:	Mr J D Smith
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	14 February 2008
Date of Judgment:	20 March 2008