SZJDE v Minister for Immigration
[2007] FMCA 1787
•24 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJDE v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1787 |
| MIGRATION – Review of RRT decision – allegations of domestic violence – where Tribunal found persecution was not for a Convention reason – whether applicant a member of a particular social group – whether information relied on by Tribunal fell within s.424A(3)(b) Migration Act 1958 – whether information was “given” to Tribunal. |
| Migration Act 1958, s.424A |
| SZEEU v Minister for Immigration [2006] FCAFC 2 VWBF v Minister for Immigration [2006] FCA 851 MZXBM v Minister for Immigration [2007] FCA 1031 NBKT v Minister for Immigration [2006] FCAFC 195 SXSB v Minister for Immigration [2007] FCA 319 SZGGT v Minister for Immigration [2006] FCA 435 SZCJD v Minister for Immigration [2006] FCA 609 Applicant S301/2003 v Minister for Immigration [2006] FCAFC 155 MZXFQ v Minister for Immigration [2007] FCA 826 NBKT v Minister for Immigration [2006] FCAFC 195 Minister for Immigration v Applicant A125/2003 [2007] FCAFC 162 |
| Applicant: | SZJDE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2123 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 15 October 2007 |
| Date of Last Submission: | 15 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 24 October 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Izzo |
| Solicitors for the Applicant: | Gilbert & Tobin |
| Counsel for the Respondents: | Mr G Kennett |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2123 of 2006
| SZJDE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of the Philippines. She arrived in Australia on 18 February 2005 and applied to the Department of Immigration & Multicultural Affairs for a protection (Class XA) visa on 24 January 2006. On 21 March 2006 the delegate of the Minister refused to grant a protection visa and the applicant sought review of that decision on 28 March 2006. The applicant was represented in respect of her review and attended a hearing before the Tribunal. On 13 June 2006 the Tribunal determined to affirm the decision not to grant a protection visa and that decision was handed down on 4 July 2006.
The applicant’s claims to be a person to whom Australia owed protection obligations were first formulated in a statement dated 16 February 2006 [CB 44-49]. In it she stated that after she graduated from college in March 1984 she and her then boyfriend decided to get married. The marriage took place on 1 October 1984 when the applicant was pregnant with her eldest son. The husband was at the time in the Philippines constabulary. Shortly after the birth of her son on 20 January 1985 there was an incident in which her husband, who was greatly intoxicated, was violent to the applicant. Her mother was present. During the course of the altercation the husband got his Armalite rifle and fired it in the air automatically. According to the statement her husband later went and spoke to his superior officer who put him in custody for firing off a rifle indiscriminately in a public street. About a month later the husband was dismissed from the constabulary for indiscriminate use of the weapon. The husband was unemployed until about 1991. During this period he was violent to the applicant. The husband then became a member of the Philippines National Police in about 1991.
The marriage continued to be a difficult one, interspersed with random acts of violence and drunkenness on the part of the husband. In 1999 he allegedly put a gun to the applicant’s head. The applicant said that in about 2000 the husband commenced use of illicit drugs. In late 2004 there was another incident. The applicant returned home from a party at about 10.30p.m. Her husband was annoyed with her for staying out. He locked all the doors inside the house and threatened to open the gas tank and burn the house down. The husband threw plates and glasses and even the TV remote control. He said he could kill the children. The applicant thought he was under the influence of drugs. The president of the subdivision in which they lived came to the house and spoke to the husband. The children escaped and went to the applicant’s sister’s house. The husband tried to find them. He went back to the matrimonial home saying he would burn down the house [CB 46]-[47]:
“One of [t]he police cars came and they tried to go inside the garage, but it was also locked. They arrested my husband. The police officer who arrested him was one of his friends and classmates.
My husband was then taken to the detention centre and they told me my husband is under the influence of drugs. He was in the detention for four days. The police officer asked me to talk to my husband and file a charge against him or else he may be released from the detention. Then I decided to talk to him before I filed the case. I also told him that I want to have a legal separation with him and he needs to sign the document. He was angry and he said he would not sign. I knew that if I continued to file the case he will escape from the detention and he will kill me together with my children. The police officer advised me not to continue my plan because it is very dangerous for me. He advised me to talk to him and patch up the problem. I’d rather withdraw the case I decided and he promised that he would not do it again. I wanted to believe him so I trusted him. Then he was released.”
In the course of the hearing before the Tribunal the following exchange took place [T26]:
“T: So he was arrested and he was held in detention for four days
A: Yes ma’am.
T:And the police talked to you and advised you that if you didn’t file a charge against him he could be released from detention.
A: Yes ma’am.
T: Why didn’t you file a charge?
A:Because I try (I decided to file a case???). Because it’s too much, too much…”
After the hearing the applicant’s advisors wrote to the Tribunal on 5 June 2005 [CB 113]:
1.0 Issues arising at hearing
The Tribunal identified two issues at hearing to address:
1. The Convention nexus in this matter;
2. Whether state protection was available to the applicant.
We understand that the Tribunal finds that the fear of the applicant is well founded. We understand that the Tribunal is satisfied as to the persecution element of the Refugee Convention and that relocation is not a viable option which is realistically attainable for the applicant as these was not alerted as matters in which the Tribunal may make an adverse finding. Should there be any issues not listed above we request the Tribunal contact us so we can respond to these issues.
In brief [the applicant] fears harm from her husband. This has been set out in her statement of 15 February 2006 and our submission of 16 February 2006. The applicant has stated the reason she will face this harm is due to:
· Her husband’s domestic violence towards her;
· The fact that she last left her husband and fled the country.”
“Why my husband was arrested on two occasions
13.The first time my husband was arrested, he was in the Philippines constabulary. It is not exactly detention. He was just held in custody. In our country you are not put in jail, your superior only grounds you. You are disarmed and you cannot perform your duty outside of the office. It is not jail in the conventional sense of the word. The only thing you have to do is to stay in the office and just do the janitorial jobs. My husband was put in custody at that time not because of the domestic violence and the harm he caused me at that time but because of his indiscriminate firing and the public scandal. The police would not have taken him like this if it was an issue of domestic violence.
14.The second time my husband was detailed because he was trying to burn our house down. We were fortunate that one of my neighbours may have called the police. The police who came to our house and took him away were his friends.
15.After arriving in Australia I spoke with my sister and asked her to retrieve the police report from that day. She went to the police station for me. However, she found out there was nothing in the system recorded against him and there was no police report. This means the police had protected my husband. I felt like a victim at that time as I could not trust the police in my country.” [emphasis added]
This submission [CB 121] had attached to it some affidavits including one from the applicant’s sister which relevantly states [CB 125]:
“5In the police station my sister requested the police to place her husband under preventative detention while he was still in the influence of liquor. My sister manifested that she will be filing charges against her husband. The police named PO3 Arthur Zenon Javier who was on duty that time acceded, though, hesitant stating that the matter is a family disputes and should be settled between the spouses;
6After her husband was placed in the detention cell I and my sister left to go back to their house. For that night I accompanied my sister and her children in their house. The following day I went home;
7In the afternoon of the day following the incident I was informed that WN was released by the police without filing charges against him;
8Further check with the police records revealed that the fact of the detention of WN was not even put into records.”
The Tribunal’s findings and reasons commence at [CB 146] and conclude at [CB 147]:
“I accept that the Applicant is married and has three children. I accept the Applicant’s evidence that the marriage has been difficult from her point of view for many years. I accept that the Applicant does not wish to continue living with her husband because of his ongoing violent behaviour throughout the marriage.”
The Tribunal then went on to consider whether the persecution alleged by the applicant at the hands of her husband was for a convention reason and found that it was not before saying:
“I have also considered whether the Applicant would be able to obtain protection from this non-Convention related harm. In relation to this, where a State withholds protection for a Convention reason, failure to protect might constitute persecution within the meaning of the Convention (see Khawar). Independent country information indicates that the problem of violence against women is not a problem condoned or tolerated by the Philippine authorities who have taken steps to address the issue. While I accept that it may be difficult for the Applicant to take action against her husband and also suffer the shame that knowledge of her circumstances in the community would cause, the independent evidence indicates that support and assistance, including refuges, women’s help desks at police stations and a range of programs developed by the Women’s Bureau and other agencies would be reasonably available to the Applicant if her husband harmed her. Indeed, it is the Applicant’s own evidence that her husband was detained on two occasions by the authorities. She was advised by the detaining police on the second occasion that if she did not file a charge, her husband may be released. She decided not to file charges and her husband was released. The husband was detained on the first occasion because he discharged a firearm outside the family home. On the second occasion police attended the family home because of domestic disturbance and detained the husband, as requested by the Applicant. I have considered the witness evidence and submissions provided by the adviser in relation to this issue in coming to the conclusion that the Applicant can avail herself of protection from the authorities in her own country. In the circumstances, I cannot be satisfied that protection from harm the applicant fears would be withheld from her for a Convention reason.” [emphasis added]
It is accepted by the respondent that the emphasised sentence in the above extract, although coming from the applicant’s original statement, constitutes information for the purposes of s.424(A)(1) of the Migration Act 1958 (the “Act”) and unless such “information” was exempted from the requirements of the section by sub-section 424A(3)(b) a jurisdictional error would have occurred and the case should be referred back to the Tribunal to be heard and determined according to law. The applicant has, in addition, a claim that the Tribunal had failed to consider whether she was a member of a particular social group constituting, inter alia, women in the Philippines and that the Tribunal failed to consider and determine a claim clearly arising on the material before it that she was not able to avail herself of state protection from the harm which she feared by reason of two matters being:
(a)Societal and police condemnation of violence towards women; and
(b)Her husband’s past connection and ongoing affiliation with the police force.
The applicant accepts that the Tribunal addressed and made findings in relation to the societal and police condemnation of violence but not from her husband’s past connections with the police force. The applicant accepts that because these claims refer to the Tribunal’s finding that on the facts of this case she was able to avail herself of adequate state protection, that finding would be sufficient to negate this ground unless it could be impugned by virtue of it being a finding made in jurisdictional error for failure to provide her with the procedural fairness required by s.424A.
In the light of the admissions made by both parties it is probably easiest to analyse and determine this case by considering first the arguments put by the Minister that the statement that constituted the information was one given by the applicant to the Tribunal.
What constitutes the “giving” of information for the purposes of s.424A(3)(b) has been discussed in several cases, including SZEEU v Minister for Immigration [2006] FCAFC 2; VWBF v Minister for Immigration [2006] FCA 851; MZXBM v Minister for Immigration [2007] FCA 1031 and NBKT v Minister for Immigration [2006] FCAFC 195. The effect of such cases was succinctly summarised by Besanko J in SXSB v Minister for Immigration [2007] FCA 319 at [25]:
“The authorities draw a distinction between information given for the purpose of the application for review and information elicited by the Tribunal during the course of a hearing”.
This depends on the facts of the case. In SZGGT v Minister for Immigration [2006] FCA 435 Rares J stated at [44]:
“Attention needs to be paid in each case to what s.424A(3)(b) identifies as the information ‘that the applicant gave for the purpose’ of the application for review. Of course, there will be cases where the applicant puts forward everything in the departmental file provided originally by him or her to the delegate. But such a result flows from the facts of the individual case. If the Parliament had intended otherwise it would have been easy to make the natural exception in s.424A(3) of the material which the applicant provided to the Minister originally and then to provide, as is now discretely provided in s.424A(3)(b), for other information.”
In SZCJD v Minister for Immigration [2006] FCA 609 Heerey J stated at [43]:
“To conclude that an applicant "gave" information for the purpose of the Tribunal application it is not necessary that the information was initially volunteered by the applicant. Information is equally given if it comes in response to questioning by the Tribunal.”
But the term also includes the circumstances in which there is an explicit adoption of what was put earlier before the Tribunal: Applicant S301/2003v Minister for Immigration [2006] FCAFC 155 at [17]. The respondent argues that both of these methods of “giving” have occurred: the first by the direct reference to the statement in the submission of the advisers of 5 June 2005 extracted at [5] of these reasons, and the second by the response to the question put by the Tribunal in the extracted piece of the transcript. The applicant argues that the reference to the statement in the adviser’s letter is only to the question of whether the applicant feared harm from her husband and the two reasons that the applicant gives in that statement for her fearing harm from her husband, being his previous domestic violence and the fact that she has left him and fled the country, in no way refer to her decision not to press charges against him when she could have done. The submissions made in that same letter at [CB 121] are placed under the heading “Why my husband was arrested on two occasions” and again do not in any way enliven the issue of the failure to press charges. The applicant finds supports for her position in a decision of Kenny J in MZXFQ v Minister for Immigration [2007] FCA 826. That case has a number of similarities to the one presently before me. The applicant had made a previous statement which was not “before” the Tribunal and then filed a lengthy statutory declaration in which he declared (MZFXQ at [7]):
“All the information in my previous statement remains correct and true. I am writing this updated statement to include extra details.
Although the main points in this statement are consistent with those in my first statement I have included more detail in this statement … The Asylum Seeker Resource Centre advised me of the kind of details that were necessary and asked me many questions and as a result I gave more details than I had previously.”
In the statement from the applicant in this case one finds the words [CB 114]:
“We now attach a further statement by [applicant] marked Attachment A which provides further details in respect of this [her husband’s violence].”
Kenny J, having allowed the appeal on another ground, then dealt with the s.424A(3)(b) point stating (at [37]-[48]):
“Strictly speaking, it is unnecessary to consider the second limb of the first ground. I do so as briefly as I can …
39The first respondent submitted, and the appellant denied, that the appellant had “adopted” or “invited reference to” the contents of his initial statement for the purpose of the Tribunal’s review by: (1) giving oral evidence at the Tribunal hearing confirming the accuracy of his previous written statements; and (2) by referring to his initial statement in his subsequent 2005 statutory declaration which was lodged by the Tribunal.
…
46The question whether an applicant gave an item of information for the purposes of his or her review application must be answered by reference to the particular facts of the case. As Rares J said in SZGGT at [36] and [50], these facts must be considered objectively. The nature of the information is also relevant to this inquiry: see NBKT at [59] per Young J. For example, if the Tribunal puts a specific piece of factual information to the applicant in the course of the hearing and the applicant affirms that it is true, then the conclusion may readily be reached that the applicant has given this information to the Tribunal for the purposes of the review.
47 Having regard to the facts of the present case, as well as the information in question, is this in substance what the applicant has done? Viewed objectively, I would answer in the negative. This case is closer to SZBMI than many of the other cases to which I have referred. The Tribunal purported to rely on information in the initial statement in assessing the appellant’s credibility, although the appellant did not invite reference to his initial statement in the course of the Tribunal hearing. I would reject the contention that the appellant "gave" the whole of his initial statement to the Tribunal when, in answer to the Tribunal’s question, he confirmed with the Tribunal that he did not wish to amend it or his 2005 statutory declaration. As the appellant’s counsel noted, the reference in the fax cover sheet accompanying the 2005 statutory declaration to "Further Statement" (emphasis added) is equivocal. I would not attach any significance to it. I would also reject the contention that, because of the terms of his 2005 statutory declaration, he "gave" the information in his initial statement to the Tribunal for the purposes of its review. His affirmation that, whilst his initial statement was "correct and true", he sought to provide the Tribunal with "extra details" in the 2005 statutory declaration did two things. It affirmed that his claims had not altered over time and that there were more particulars he could give in relation to them. In and of itself this did not republish the initial statement to the Tribunal. There is, moreover, nothing else in the 2005 statutory declaration or in the circumstances of the case that would give rise to the implication that the initial statement had been republished to the Tribunal. On the contrary, the terms of the 2005 statutory declaration indicate that it was intended to take the place of the initial statement as a fuller embodiment of the applicant’s claims than the initial statement. Despite reference to the initial statement, the statutory declaration plainly stood by itself. It did not require the reader to refer to the earlier document in order to understand its contents.
48 Objectively speaking, in all the circumstances, the references to his initial statement in the 2005 statutory declaration served only to deny any suspicion of "recent invention" that might have arisen upon the filing of the later document. It was insufficient to transform the initial statement into information given for the purposes of the review application.
The applicant argues that the submissions which she made through her representative were a fuller and complete statement of her claim for convention nexus and adequate state protection. The issue of the arrest was one dealt with in her first statement.
I think that this case can be distinguished from MZXFQ. I agree with her Honour that the second statement in that case was intended to be a replacement for the first to the extent that the applicant would not expect further reference to the first because in the second he had provided so much more detail. In the instant case there is a reference to the statement and then more details about other matters but there is no more detail about the decision not to proceed with the charges and the husband’s subsequent release. That seems to me to create a lacuna, although the applicant argues that this not so because the sister in her statutory declaration does make reference to him being released at paragraph 7 [CB 125]. The applicant also suggests that if the lacuna existed it could mean that she was resiling from her earlier statement leaving one with a situation where the husband had been released by the police with no reference to the charge. This is an elegant argument but given the response of the applicant in the transcript to the direct question posed by the Tribunal I really do not think it is one that can be accepted. The Tribunal is not fettered in the use it makes of any information with which it is provided. One frequently sees examples of Tribunals utilising information in a way quite contrary to that proposed by an applicant. I am also of the view that the context in which the statement was proffered should be noted. It was referred to in a submission made after the hearing. In the hearing itself there commences at [T14] a series of questions which quite clearly are following the history set out by the applicant in that statement. This continues until [T24] when the following exchange took place:
“T:Okay I just got to find this in your statement. I’m just trying to find, you can help me find??? that was when he was dismissed from the constabulary??? then he became a member of the Philippine National Police, when was he actually dismissed? I know it’s in there somewhere but I can’t find it.
Unidentified voice: It is paragraph 30. The date is not specified.”
The questioning then continues for a further page and a half; then there is the direct series of questions previously extracted, in particular the question “Why didn’t you file a charge?” It is clear that the applicant is aware that the Tribunal is going through her statement and responds to questions about it. In my view there must be an implied adoption of that statement.
There having been an adoption of the statement either by implication as described above or by direct reference to it in the adviser’s letter the reference to the applicant not bringing charges against her husband and him being released is therefore information which falls within s.424A(3)(b) and the applicant’s claims must all fail. Insofar as it is necessary to say so I would add that I am of the view that the response in the transcript constitutes the affirmation of a specific fact before the Tribunal which has been accepted by the Full Court as sufficient to bring a matter within s.424A(3)(b): NBKT v Minister for Immigration [2006] FCAFC 195 at [58] and [59] and note the cases referred to therein; see also Minister for Immigration v Applicant A125/2003 [2007] FCAFC 162 at [44]-[46] and [77].
It is accepted that the reasoning given by the Tribunal for coming to the conclusion that state protection was available to the applicant was, in the absence of a s.424A point, logical and consistent with the evidence. As I am of the view there is no s.424A point it follows that the application must be dismissed and the applicant must pay the first respondent’s costs which I assess in the sum of $5,000.00.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 24 October 2007
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