SZJJQ v Minister for Immigration - [2007] FMCA 1304

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJJQ & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1304

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal misapplied the law – whether domestic violence constitutes persecution within the Refugees Convention.

Migration Act 1958 (Cth), s.91R

Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Khawar v Minister for Immigration & Multicultural Affairs [1999] FCA 1529
Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1
MZWBW v Minister for Immigration & Multicultural& Indigenous Affairs [2005] FCAFC 94
NAHI v Minister for Immigration & Multicultural& Indigenous Affairs [2004] FCAFC 10
WAEE v Minister for Immigration & Multicultural& Indigenous Affairs (2003) 75 ALD 630

Applicant:

SZJJQ & SZJJR

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG2663 of 2006

Judgment of:

Barnes FM

Hearing date:

1 August 2007

Delivered at:

Sydney

Delivered on:

1 August 2007

REPRESENTATION

Applicant:

In Person

Counsel for the Respondent:

Mr D Godwin

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application is dismissed.
The first applicant shall pay the costs of the first respondent fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2663 of 2006

SZJJQ AND SZJJR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 31 August 2006 affirming a decision of the delegate of the first respondent not to grant the applicants protection visas. The applicants are a mother and daughter who arrived in Australia in 1999 and applied for protection visas in 2006. No specific Convention claims were made by or on behalf of the applicant daughter, hence her application depended on the fate of her mother’s application. For convenience, unless otherwise specified, future references to the applicant are references to the applicant mother.
The applicant, a Fijian of Indian ethnicity, made a number of claims. She claimed first that she had been the subject of a serious sexual assault by Fijian security forces around the time of the 1987 coup. She claimed she would experience social isolation if she returned to Fiji in light of her claims that subsequently she had married and had been the victim of ongoing domestic violence (as documented in material provided to the Department) both prior to coming to Australia with her husband and during her time in Australia. She claimed that the police in Fiji had not been prepared to intervene to stop this violence and may not be willing to do so in the future, whereas she had found them responsive in Australia. She had formally separated from her husband in June 2004 and thereafter her husband had not tried to make contact with her. She claimed to fear persecution in Fiji, particularly as a single abused Indian female. She also claimed she had experienced burglaries and muggings in Fiji due to her Indian ethnicity and that she lacked family support in Fiji.
The application was refused by a delegate of the first respondent. The applicant sought review by the Tribunal. The applicant attended a Tribunal hearing at which she elaborated on the claims previously put by her and by her migration agent.
In its reasons for decision the Tribunal noted the submission on the applicant’s behalf that the “principal foundation” for the application was the gang rape which she claimed to have experienced at the hands of Fijian Army officers. It set out the applicant’s claims and evidence of medical and psychological reports relating to that issue and also her claims about domestic violence issues and the impact on her child. It recorded that she told the Tribunal hearing that she had separated from her husband, her understood that her husband had been in immigration custody and that the daughter had spoken to him but that this contact had ceased. The applicant also told the Tribunal that she had no immediate family members living in Fiji at the time of the Tribunal hearing. She claimed there would be an absence of family and social support in Fiji which held horrific memories for her.
The Tribunal recorded that when asked if she was scared of continuing domestic violence, the applicant had replied that she was filing for divorce, that she had no intention of resuming a relationship with her husband and that she did not believe he would seek to contact her for the purpose of resuming a relationship. However she claimed that he had told his sister that he believed the applicant had dobbed him in to the Department of Immigration and that he was going to “pay her back big time” and that his girlfriend, an Australian citizen, had threatened her over a number of years that if she returned to Fiji she would not “get very far”.
The applicant also detailed her concerns about the impact of the events of 1987, including ongoing nightmares, a concern for the safety of her daughter and her worry that something similar would happen to her. She expressed her concern about the availability of police support in Fiji as compared to Australia, a fear for the safety of her daughter and also claimed that there was a stigma attached to being a single woman in Fiji and little support available.
In its findings and reasons the Tribunal accepted that the applicant and her daughter were nationals of Fiji. It summarised the applicant’s claims that if she returned to Fiji she would be a single woman responsible for the care of her daughter with no family or social support, liable to harassment and that her access to housing and employment may be limited and that she feared that her former husband, his current partner or their associates may seek to harm her and that if they did so, police protection in Fiji would be inadequate.
The Tribunal found that while the applicant’s adviser had suggested that the principal foundation of her claim was the events of 1987, it was clear from her oral evidence that this was not the principal foundation for any ongoing fear of persecution. It accepted that the applicant had horrific memories which understandably lingered, but noted that she did not seek to argue that she had ongoing fears for her safety as a result of this event. The Tribunal found that it was “evident” from “generally available country information” that the situation in which the assault of 1987 had occurred was specific to that particular time (when a military coup had just taken place). It found no credible evidence (and the applicant did not claim) that there was a real chance that she would face similar mistreatment on return to Fiji for a Convention reason.
In making this finding the Tribunal had regard to the applicant’s expressed fears for the safety of herself and her daughter, particularly in the context of a high crime rate and high level of violence against women in Fiji, which it accepted the country information indicated. The Tribunal found however that it could not be satisfied on the information before it that there was a real chance that the applicant would be targeted for any Convention reason as a victim of rape or other sexual violence in Fiji. It was also satisfied, based on country information to which it referred, that “the Fijian authorities take reasonable measures to provide reasonably adequate and effective protection, by international standards, to all citizens against crime, and that this included crimes committed against women”.
The Tribunal did not accept that the applicant’s “current predicament” had been brought about by the fact of the 1987 assault in any sense relevant to the Refugees Convention. While accepting that the applicant may have been stigmatised, isolated from relatives and essentially forced into an undesirable marriage, the Tribunal did not consider these factors accounted, to any significant extent, for the difficulties the applicant may face if she returned to Fiji. It had regard to the fact that most of the applicant’s relatives were unaware of the circumstances and that many of them were dead and found that any lack of family support was the result of the applicant’s long absence from Fiji and the absence of relatives. It found no evidence to suggest that there was any animosity directed towards the applicant by any of her remaining relatives.
The Tribunal then addressed the applicant’s claims in relation to her relationship with her former husband. It accepted that her husband had inflicted physical and psychological violence on the applicant for many years, both in Australia and Fiji. However it had regard not only to her evidence that she was a “much stronger person” but also to the fact that she made it clear that she had had no direct contact with her former husband since the formal separation in July 2004 and that she intended to divorce him and have no further contact with him and to the fact that she did not suggest that she thought her husband would seek her out, or that she feared future harm from him (or his partner) for any reason other than in revenge which might be directed at her because he may believe that she was responsible for his detention by the Department of Immigration.
The Tribunal found that even if it could be satisfied that these threats “ were serious and the applicant’s fears were well founded rather than speculative, [it was] not satisfied that any harm directed at the applicant in these circumstances would be related to the Refugees Convention.” The Tribunal was not satisfied that any such harm would be directed against the applicant for any Convention reason, “including her membership of a particular social group comprised of women, single women or any similar formulation.” Rather, the Tribunal was “satisfied that any such harm would be directed at the applicant for private and personal reasons arising from the difficult and dysfunctional relationships between the parties” and that such harm “is not persecution in terms of the Refugees Convention.”
The Tribunal acknowledged that where harm is inflicted upon an applicant for a private reason not related to the Refugees Convention, such harm may nonetheless be considered to constitute Convention persecution, “… if the authorities of the relevant country withhold protection against that harm on a discriminatory basis for a Convention reason”. The Tribunal referred to the decision of the High Court in MIMA v Khawar (2002) 210 CLR 1 cited earlier in its reasons for decision.
Hence the Tribunal considered whether in this case protection may be denied or withheld from the applicant because of her race, her membership of a particular social group comprised of women, or for any other Convention reason. However it was not satisfied that this was the case. It gave a number of reasons for that finding, referring to the fact that while independent evidence suggested that the effectiveness of the Fiji Police Force was “hampered by inefficiency and corruption”, there was “no evidence before [it] which suggests that police officers fail to treat domestic violence against women seriously or that they discriminate, for a Convention reason, against any identifiable group, including women, in offering protection against private harm”. It found, indeed, that the country information referred to in its reasons for decision indicated that this was not the case, noting that while such reports indicated that domestic violence and violence against women were problems in Fiji, this did not, of itself, support a finding that all women were persecuted in Fiji or that the State discriminated against them because they were women.
The Tribunal made specific reference to the United States Department of State Country Report for 2005 on Fiji and an Amnesty International report of 8 November 2005 in relation to the events of 2004 which referred to actions taken by the government of Fiji and various NGOs at the urging of women’s groups to protect women from sexual and physical violence.
The Tribunal was not satisfied, in those circumstances, “that the Fijian authorities systematically condone or tolerate domestic violence against women or against single women, Indian women or any other conceivable particular social group to which the applicant might be considered to belong”.
Moreover, the Tribunal was satisfied, based on the independent information, that the attitude of the Fijian police towards domestic and other forms of violence against women had changed during the period the applicant had been absent from Fiji. It referred in particular to the introduction of the “no drop” rule by Fijian police in the investigation of cases of domestic violence. The Tribunal was satisfied that the authorities were now and in the reasonably foreseeable future more aware of a need to take appropriate action in relation to violence against women. It concluded on the available evidence that harm previously inflicted on the applicant by her husband and any harm she may face from him was private, non-Convention-related harm and that there would be no failure on the part of the authorities to protect the applicant against such harm for any Convention reason.
The Tribunal also considered the applicant’s claims that she would, if she returned to Fiji, be returning as a single woman. It accepted that she may experience discrimination and harassment as a single woman, but found no evidence supporting a conclusion that the level of harassment or discrimination would be so serious as to constitute persecution. Further, it found any difficulties the applicant may face in obtaining a house or employment would not be the result of Convention persecution or discrimination for a Convention reason, but rather the product of general economic conditions and that the same could be said of the lack of family or social support for the applicant and her daughter.
While accepting the honesty of the witness and her desire to remain in Australia, the Tribunal found that the potential difficulties the applicant and her daughter would face in Fiji did not fall for consideration under the Refugees Convention and that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention. Hence, similarly, her daughter could not satisfy the criterion for a protection visa. The Tribunal affirmed the decision not to grant the applicants protection visas.
The applicants sought review by application filed in this Court on 20 September 2006. The applicant mother filed written submissions.
The first ground is that the Tribunal “made a serious error of law by failing to consider and determine a significant part of the applicant’s claims which sought to establish that she had a well founded fear of persecution based on the fact that she was gang raped by members of the military”. The written submissions in relation to this ground state that the applicant relies on the application. The applicant did not elaborate on her written submissions in her oral submissions.
Contrary however to the contention in ground 1, it is clear from the Tribunal reasons for decision that the Tribunal did in fact consider and determine this part of the applicant’s claims, insofar as it was sought to establish that she had a well-founded fear of persecution based on the events of 1987.
The Tribunal found, based partly on the applicant’s evidence, that while the applicant had horrific memories, she did not seek to argue that she had ongoing fears for her safety as a result of this event and that it was evident from generally available country information that the situation in which the events had occurred were specific to the particular time of 1987, when a military coup had taken place. It also found that there was no credible evidence before it, and that the applicant did not claim, that there was a real chance that she would face similar mistreatment on her return to Fiji for a Convention reason.
As set out above, the Tribunal went on to consider the applicant’s expressed fear for her safety and that of her daughter in the context of a high crime rate and high level of violence in Fiji. However it was not satisfied, based on the information before it, that there was a real chance that the applicant would be targeted for any Convention reason as a victim of any sexual violence in Fiji. In relation to the availability of state protection, IT was satisfied, based on the country information, that the Fijian authorities take reasonable measures to provide reasonably adequate and effective protection by international standards to all citizens against crime and that this included crimes committed against women. No jurisdictional error is established in its consideration of this issue.
The Tribunal also addressed the earlier submission by the applicant’s adviser that her “current predicament” had been brought about by the fact of the 1987 assault but found that this was not the case in any sense relevant to the Refugees Convention. It also addressed her claims in relation to a fear of stigma and having been forced into an undesirable marriage. Ground 1 is not made out.
Ground 2 in the application is that the Tribunal’s decision “was in part based on the wrongfully held assumption that the applicant did not have any fear of persecution based on the previous gang rape by the military … despite the fact that on multiple occasions during the hearing the applicant testified that she had persistent and horrific memories of the rape incident.”
First, the only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal reasons for decision. The Tribunal accepted that the applicant had horrific memories which (understandably) lingered from the event but, as indicated above, also found that the applicant did not seek to argue that she had ongoing fears for her safety as a result of the earlier assault. It was, in any event, a matter for the Tribunal to consider the weight to be given to particular items of evidence, having heard the oral testimony of the applicant. The applicant did not elaborate on this ground in written or oral submissions.
It is clear that the Tribunal decision was not based on an assumption that the applicant did not have a fear of persecution. Rather it reached a conclusion based on the evidence before it as to the basis for the applicant’s fears and also considered whether there was a real chance that she would face similar mistreatment on return to Fiji for a Convention reason and whether there would be State protection. Ground 2 is not established.
Ground 3 in the application is elaborated on at some length in the written submissions. It is that the Tribunal “misapplied the legal principles relevant to the definition of persecution by finding that domestic violence inflicted upon the applicant by her husband did not fall within the definition of ‘persecution’ under the Refugees Convention”. It was contended that the Tribunal’s approach was contrary to the decision of the High Court in MIMA v Khawar (2002) 201 CLR 1in which it was said to have been held that serious and prolonged domestic violence may amount to persecution under the Refugees Convention where the State failed to provide adequate protection.
Somewhat confusingly, in the applicant’s written submissions it was suggested, that the gist of this ground was that the Tribunal erred in its interpretation and application of Khawar v MIMA [1999] FCA 1529. This is the citation for the decision of Branson J at first instance. The applicant was not able to clarify why there was a reference to the decision of Khawar at first instance rather than to the decision of the High Court. It appears from the application that it was intended to be suggested that there was a failure by the Tribunal to apply the law established by the High Court in Khawar which was referred to by the Tribunal.

Consistent with the approach of the High Court in Khawar it was contended, and I accept, that harm inflicted upon an individual for a private reason, not related to the Convention, may constitute Convention persecution if the authorities of the relevant country withhold protection against the harm on a discriminatory basis for a Convention reason. It was acknowledged that the Tribunal adopted this approach and also that it took the view that there was no evidence to suggest that Fijian authorities failed to treat domestic violence seriously or discriminated against any identifiable group for a Convention reason so that any harm to the applicant that may arise from the lack of such protection would not be the result of a persecution for a Convention reason.
However, it was submitted that Khawar (and this seems to be a reference to Khawar at first instance) required the Tribunal to proceed further, to consider whether a person inflicting harm on another, including a husband who was subjecting his wife to domestic violence, may do so for several reasons, some of which were private and some related to the victim’s membership of a social group, and that in such circumstances, where the authorities failed to provide effective protection, the harm may be said to arise from persecution for a Convention reason, even though the lack of effective protection was not the result of discrimination on Convention grounds.
On this basis it was said that the Tribunal was required to consider whether the applicant was a member of a social group such as women and then consider whether the person who had or might inflict harm upon her (such as her husband and other men) may do so wholly or partly because of her membership of a social group and that the Tribunal did not consider that question.
The initial difficulty for the applicant in relation to this ground is that the Tribunal did in fact consider the issue of whether or not there was a Convention basis for any harm feared by the applicant from her husband, his partner or indeed from others. It had regard to the applicant’s evidence that she had formally separated from her husband, that she intended to have no further contact with him, that she did not suggest that she thought he would seek her out or, relevantly, that she feared future harm from him (or his current partner) for any reason other than in revenge which might be directed at her because he may believe she was responsible for his detention by the Department. The Tribunal found that even if it was satisfied that such threats were serious and the applicant’s fears were well founded, it was not satisfied that any harm directed at the applicant in those circumstances would be related to the Refugees Convention, not being for a Convention reason, including membership of a particular social group comprised of women, single women or any similar formulation. Rather it found that such harm would be directed at the applicant for private and personal reasons arising from the difficult and dysfunctional relationship between the parties.
I also note the provisions of s.91R(1)(a) of the Migration Act 1958 (Cth) in relation to the essential and significant reason for harm. Moreover, as is recognised in the applicant’s written submissions, the applicant conceded that the Tribunal was satisfied, based on country information to which it referred, that the Fijian authorities take reasonable measures to provide reasonably adequate and effective protection by international standards to all citizens against crime and that this included crimes against women. It was acknowledged in the applicant’s written submissions that such a finding, if valid, would make the applicant’s submissions in relation to Khawar and the need for the Tribunal to address the issues referred to above ineffective.
The applicant submitted that the Tribunal’s finding in relation to whether the Fijian authorities take reasonable measures to provide reasonably adequate and effective protection was flawed. It was submitted that the country information relied upon in making this finding was dated October 2004. This was said to be almost two years out of date at the time of the Tribunal decision. It was contended that the information did not relate to the situation subsisting in Fiji at the time of the Tribunal decision and noted that a military coup had taken place in Fiji several months after the Tribunal decision.
On that basis it was submitted that the Tribunal had before it no cogent material or evidence as to the situation in Fiji at the time of the decision, that its decision as to effective protection was based on no evidence and was, to a significant degree, irrational and that it should be quashed. Reference was made to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223, and to Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 369.
It is not necessary to consider in detail the extent to which irrationality, unreasonableness or indeed no evidence constitutes jurisdictional error in the particular circumstances of this case, as the basis for the applicant’s claims in this respect is not made out.
First, in its finding in relation to protection by the Fijian authorities, it cannot be said that the Tribunal relied simply on information dated October 2004 (which appears to be a reference to the Department of Foreign Affairs and Trade advice of October 2004). It also set out extracts from an Amnesty International report of 8 November 2005 (albeit in relation to events in 2004) and a United States County Report for 2005 dated 8 March 2006. Such matters were also addressed in the subsequent reports.
Moreover, in describing the advice of October 2004 (which was in relation to political and ethnic violence in particular) the Tribunal found that such advice was not contradicted by any more recent information before the Tribunal. I note in this respect that it is not suggested by the applicant that she put before the Tribunal any more recent country information in relation to the matters in issue under this ground. This is not a case in which it can be said that the Tribunal had no cogent material or evidence before it, or that on that basis the decision was irrational or unreasonable, let alone irrational or unreasonable in a manner constituting jurisdictional error.
Insofar as it is suggested that the country information did not relate to the situation in Fiji at the time of the Tribunal decision, as indicated, the Tribunal found that the advice it relied on was not contradicted by any more recent information before it. The fact that a military coup took place in Fiji several months after the Tribunal decision does not establish that the Tribunal erred in the manner contended, based on the information that was before it at the time of its decision. No jurisdictional error is established on the basis contended for in ground 3 or as elaborated on in the applicant’s written submissions.
The fourth ground repeats those submissions. It is that the Tribunal failed to consider relevant information when determining whether the authorities in Fiji would provide the applicant with adequate protection from domestic violence, or that the Fijian authorities would not condone or tolerate domestic violence for a Convention reason.
It is claimed that (unidentified) evidence before the Tribunal clearly showed that the State was often unwilling or unable to act. However, the Tribunal had regard to the applicant’s submissions in relation to the situation in Fiji and also to matters such as the high crime rate and high level of violence against women, as discussed in the country information to which it referred. The weight to be given to particular items of country information before it is, however, a matter for the Tribunal. Indeed, there is no obligation upon the Tribunal to refer to all the available evidence when making its findings (see WAEE v MIMIA (2003) 75 ALD 630 at 46) or to record in its decision all the material it has considered (MZWBW v MIMIA [2005] FCAFC 94). While the Tribunal did refer to a number of items of independent country information, there is nothing to suggest that the applicant submitted other such material to the Tribunal. It has not been established that the Tribunal failed to consider relevant information, whether consisting of aspects of the applicant’s claims or other material before it. As the Full Court of the Federal Court stated in NAHI v MIMIA [2004] FCAFC 10 at [11]:
There can be no objection in principle to the Tribunal relying on country information. The weight that it gives to such information is a matter for the Tribunal itself as part of its fact-finding function.
Moreover, the question of the accuracy of country information is one for the Tribunal. If the court were to make its own assessment of the truth of country information, it would be engaging in merits review. Insofar as the applicant takes issue with the fact-finding of the Tribunal, that is, of course, a matter for the Tribunal and not the court. No jurisdictional error is established on the basis contended for in ground 4.
Ground 5 is that the Tribunal made a serious error “in interpreting the evidence provided to show that the applicant did not have any fear of future attacks”. The applicant relies on the application and did not elaborate on what was the evidence in question.
Insofar as this is a reference to the applicant’s fears in relation to a repetition of attack based on the events of 1987, as set out above the Tribunal found, based on the applicant’s evidence at the hearing (and the Tribunal reasons of decision are the only evidence before the Court of what occurred in the Tribunal hearing) that she did not seek to argue that she had ongoing fears for her safety as a result of the events of 1987. It also considered more generally whether there was a real chance that she would be targeted for any Convention reason as a victim of sexual violence in Fiji and was satisfied on the information before it as to the existence of effective State protection. As set out above the Tribunal also addressed the issue of future violence from the applicant’s husband and his partner (finding no Convention nexus). Insofar as this ground seeks merits review, merits review is not available in this Court. No error is established on the general and unparticularised basis contended for in part 5.
Finally, in ground 6 the applicant contended that the Tribunal “clearly erred when contending that the country information used established that the situation in which the rape occurred [was] specifically limited to a particular time”. It was contended that the country information used did not take into account the attacks by the military, but that the information used should not be inferred as to exclude such attacks inflicted upon the applicant.
Again, as indicated above, there is nothing to suggest that the Tribunal misunderstood the nature of the applicant’s claims in this respect. There is nothing to suggest that it failed to summarise accurately her original claims, her adviser’s claims and her clarification in the Tribunal hearing. Insofar as the applicant takes issue with the country information and the Tribunal conclusions based on that country information, I refer to what the Full Court of the Federal court stated in NAHI at [11] as set out above to the effect that the selection, construction and weight given to country information is a matter for the Tribunal.
In the written submissions it was submitted that the error was that the Tribunal had recourse to country information dated October 2004 with no update having been received. The applicant repeated the submissions in relation to ground 3.
However there was no obligation on the Tribunal to make further inquiries if that is what is intended to be submitted by this contention. There is nothing in the material before the court to suggest that the Tribunal undertook to make any further inquiries. Moreover, as indicated, while the Tribunal relied in part on October 2004 information, it also stated that that advice was not contradicted by any more recent information before it in relation to political and ethnic violence and more generally, had regard to subsequent country information as set out above. This is not a case in which it can be said that there was no evidence or that the decision was irrational or unreasonable in a manner constituting jurisdictional error. No jurisdictional error is established on the basis contended for in ground 6.
As no jurisdictional error has been established, the application must be dismissed.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 16 August 2007