SZJCT v Minister for Immigration

[2007] FMCA 1797

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJCT v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1797

MIGRATION – Review of RRT decision – where issues of credibility – where Tribunal did not accept that fear of persecution was for a Convention-related reason – whether applicant faced a real chance of Convention-related harm in future.

Applicant: SZJCT

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG2079 of 2006

Judgment of: Raphael FM

Hearing date: 12 October 2007

Date of last submission: 12 October 2007

Delivered at: Sydney

Delivered on: 12 October 2007

REPRESENTATION

Counsel for the Applicant: Mr B. Zipser

Solicitors for the Respondent: DLA Phillips Fox

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $3750.00.

3. The name of the First Respondent be amended to “Minister for Immigration and Citizenship”.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2079 of 2006

SZJCT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Thailand. She arrived in Australia on 28 December 2005. On 9 February 2006 she applied to the Department of Immigration & Multicultural Affairs for Protection (Class XA) Visa. Her application was considered by a delegate of the Minister who declined to issue the visa on 28 February 2006. On 27 March 2006 the applicant applied for a review of that decision by the Refugee Review Tribunal. The Tribunal interviewed the applicant and on 20 June 2006 determined to affirm the decision not to grant her a protection visa. The decision was handed down on 11 July 2006.

2. The applicant is a well-educated Thai woman born in Chiang Mai of the Buddhist persuasion. She holds an undergraduate degree in business management and has almost completed a Masters degree in computer business. While studying for this higher degree in Bangkok she met a young Muslim man whose family were in the money-lending business. She moved in with him and his family and helped with that business.

3. In April 2005, after collecting 470,000 bhat in money-lending repayments, her bag with the money in it was stolen. Her boyfriend was very angry with her and she claimed that he badly beat her. She was treated by a doctor who was a family friend and about a week later went to the police and complained. The police declined to deal with the complaint on the basis that it was a family matter. The applicant then left her boyfriend's parents' home and returned to her own home in Chiang Mai but her boyfriend came and persuaded her to return to him, which she did.

4. There was then an incident in which her boyfriend's father wished everyone in the family to go to the Mosque but she declined, pointing out to him that she was no longer comfortable with the Muslim religion. In her initial applications the applicant had indicated that she converted to Islam, but in the discussions with the Tribunal she advised that she had not made a formal conversion at all.

5. She claimed that after this incident the family became angry with her and her boyfriend beat her again. They told her not to bother to go to the police as the police would do nothing. On her mother's advice she left the home and went to stay with friends. She stated that the boyfriend then contacted her mother and said he would kill her when he found her and went looking for her. The applicant stayed with friends and moved around, but fearing for her life, obtained a visa for Australia in December 2005 and escaped to this country.

6. The applicant told the Tribunal that she believed she would be killed if she returned to Thailand as she was seen by her boyfriend and his family as betraying the Muslim religion, and she did not believe that the Thai authorities would protect her as they thought this was a family matter, or alternatively that they would take bribes from her boyfriend's family.

7. The Tribunal questioned the applicant and ascertained from her evidence that she had not married her boyfriend as had previously been suggested but was living with him. The Tribunal asked the applicant on several occasions why she believed she was a refugee, by which I assume the Tribunal meant to ask the applicant what persecution she had suffered and was that persecution for a Convention-related reason [CB77]-[78]:

   “The Tribunal again asked the Applicant to tell it why she thought she is a refugee.  In reply, the Applicant claimed that her partner lent money to people and she collected this and one day someone stole her handbag containing the money and her partner hit her and accused her of stealing the money.  She claimed when she lived with him he wanted her to convert to his religion but this caused problems as they were Buddhists and her mother asked why she had to change her religion and she (the Applicant) had to believe her.  She claimed that her mother said that all religions are good and, if the Applicant changed, she would have to do what they do and this would not be good for her.  Asked if there were any other reasons why she thought she was a refugee, the Applicant claimed that when she had her handbag stolen, her partner hit her and did not believe her, so she ran away … She claimed that as her partner followed her and persecuted her, she could not stay in Thailand.  Asked how she was persecuted, the Applicant claims that her partner told her mother that he would kill the Applicant and he also watched and went to friends places and tried to follow her.  Asked when her partner told her mother about his t[h]reats to kill her, the Applicant claimed it was just before she came to Australia, possibly July 2005.  Asked why he was threatening her (the Applicant), she replied she thinks (but was not sure) that it was because she did not do what he wanted her to do and, if she did not do this, his mood went up and down and he threatened her.”

8. In its findings and reasons the Tribunal accepted a number of the applicant's claims but expressed difficulty in accepting the story that she was beaten up [CB 79]:

   “However, the applicant provides no evidence that she was at any stage beaten by him for this [the stolen property] or any other reason, such as a Doctor's report obtained either in Thailand or in Australia.  Nor has she provided a copy of any complaint she made to the local police station or any other evidence about this matter such as a letter from her mother.  Accordingly, from the unsupported claims made by the Applicant, the Tribunal does not accept that the Applicant was beaten by her partner because the money had been stolen and he though[t] she was involved in the crime.  Nor has the Tribunal been able to satisfy itself that the essential and significant reason why her partner became angry with her was for a Convention related reason.”

9. The Tribunal did accept that the boyfriend came to find her after she had left and returned to her mother, but was not satisfied that the essential and significant reason for this was Convention-related or that any fears that she may have had of harm were for a Convention reason. At [CB 81] and [82] the Tribunal advances two entirely independent reasons why it believes that the applicant is not a person to whom Australia owes Convention obligations. The first is that it did not accept that she, an ethnic Thai and a Buddhist, would not obtain adequate State protection in respect of any complaints that she might make about domestic violence. Second was that she, a well-educated Thai used to living in large cities, could not relocate within Bangkok or Chiang Mai or somewhere else without fear that she would be sought and found by her boyfriend or his family and suffer serious harm as a result [CB 82]:

   “Indeed, the Tribunal also does not accept from the limited and unsupported claims made by the Applicant that her partner and [h]is family would be able to track her down wherever she went in Thailand or would seek to harm her for a Convention-related reason even if they stumbled upon her.”

10. The applicant argued there were three issues which the Court should look at that would indicate that the Tribunal fell into jurisdictional error in the manner in which it came to its decision. The first issue is described as the "beating claim" issue:

11. The Tribunal found at [CB 79]:

    “However, the Applicant provides no evidence that she was at any stage beaten by him for this or any other reason… Given all the above, the Tribunal has not been able to satisfy itself that the Applicant has a well-founded fear of serious harm amounting to persecution for a Convention reason on this basis.”

12. The applicant argues that the Tribunal was wrong to say that there was no evidence that she was beaten. There was, of course, her own evidence. She goes on to say that as the Tribunal had accepted some of her evidence it accepted her as a witness of truth and therefore should have accepted the evidence about the beating. The respondent argues that upon reading the Tribunal's decision, the statement about "no evidence" taken in context really means that the applicant provided no corroborative evidence of the beating.

13. I think that this view of the Tribunal's reasoning is better. There are a number of references to the applicant's statements and allegations concerning the beating which indicate that the Tribunal was fully aware that the applicant was giving evidence as to its existence. In any event I think there is a more serious problem, and that is the Tribunal's finding that if there was a beating, it was not Convention-related. This is a question of fact for the Tribunal, and it would be providing unacceptable merits review if I was to interpose my own views upon those of the Tribunal in relation to such a finding.

14. The second matter is described as the "religion issue". The applicant claimed that her partner wanted her to convert to his religion, and it is argued that the Tribunal did not deal with her specific claim in this regard and that she feared persecution on this basis. The Tribunal made a finding that the applicant had never converted to Buddhism in the first place and therefore she could not re-convert, and seemingly concludes that there would thus be no persecution because any persecution would have arisen out of a Muslim concern that a convert had apostatised.

15. Another Tribunal may have concluded that it was perfectly reasonable for a woman who had lived within a Muslim household, attended the Mosque on regular occasions and given every indication that she was adopting the Muslim religion, to be concerned and possibly have fears if she then advised those under whose protection she was living that she wished to return to the religion (or more accurately, the philosophy) of her forefathers. But to fail to take this view is not a jurisdictional error provided that the view that the Tribunal did take is based upon the available evidence and the reasonable analysis thereof.

16. Again, more importantly, the real finding that defeated the applicant was that there was no threat of serious persecution made in connection with the conversion issue and it was not satisfied that such a connection could be drawn and therefore one element of the definition of a person who qualifies for refugee status could not be met.

17. The third matter is described by the applicant as the "real chance test issue". The applicant refers to an extract from [CB 80] in which the Tribunal accepts that her partner tried to find her after she had left him:

    “ … but from the limited and unsupported claims made by the applicant the Tribunal has again not been able to satisfy itself that the essential and significant reason for this is Convention related or that any concern she may have on this basis is a well-founded fear of serious harm amounting to persecution for a Convention reason.”

18. As I understood the applicant's argument, she was suggesting that in relation to the past the Tribunal had not been satisfied on the balance of probabilities that the essential and significant reason for the partner's actions were Convention-related, and that therefore any harm the applicant might face in the future was not Convention-related and that was an error, because the proper test is whether the applicant faced a real chance of Convention-related harm in the future. I am afraid that I am unable to follow the submission that the Tribunal imposed a balance of probabilities test at all. My reading of the words extracted above is a clear reference to the Tribunal achieving a state of satisfaction, and that is all that is required by the Act.

19. If I should be wrong about any of these matters I must still deal with the question of the independent grounds. The first is a finding of fact in relation to the existence or otherwise of adequate State protection for an ethnic Thai, and I do not believe that it is one with which this Court can readily interfere.

20. The second is also a finding of fact in relation to relocation, which to my mind has been carefully considered by the Tribunal. The applicant suggests that if I had found a jurisdictional error in one of the other grounds, this would affect these independent findings because they would go towards the applicant's credibility, but I am not able to follow that argument. I do not think that the Tribunal made any particular findings on credibility that were in any way out of the ordinary. The Tribunal is entitled to decide which parts of the applicant's claim it finds credible and which it does not. This is what it did. The only serious finding on credibility related to the beating, but as I have already said, a more important finding in relation to that activity was that it was not Convention-related. I do not think that if I had found jurisdictional error there, it would have overridden the finding about ability to relocate.

21. In all the circumstances I am therefore unable to find that the applicant's claims that the Tribunal fell into jurisdictional error are made out. I dismiss the application.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  26 October 2007