SZJPX v Minister for Immigration
[2007] FMCA 2063
•12 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJPX & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 2063 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – claim raised by the evidence at Tribunal hearing must be dealt with even if it is not expressly made by the applicant – a particular claim may be dealt with by being subsumed in findings of greater generality or because the factual contention on which the claim rests has been rejected. |
| NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1 Applicant WAEEv Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 |
| First Applicant: | SZJPX |
| Second Applicant: | SZJPY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1780 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 14 November 2007 |
| Date of Last Submission: | 14 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 12 December 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr. L. Karp |
| Counsel for the Respondents: | Mr. T. Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1780 of 2007
| SZJPX |
First Applicant
| SZJPY |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The first applicant is a citizen of Indonesia where, she claims, she is married to a man in whom the police have an interest. The second applicant is her son who has no separate claims. In these reasons the first applicant will be referred to as the applicant.
The applicant alleges that her husband left Indonesia for Australia and that this subsequently led to her being harassed by the police. The applicant herself then left Indonesia and arrived in Australia on 3 January 1997.
The applicant claims to fear persecution in Indonesia because of her association with her husband.
After her arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 30 June 1997. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
The Tribunal decision the subject of these proceedings is the third such decision relating to the applicant. Two earlier decisions of the Tribunal were set aside by order of this Court (Court Book (“CB”) 147).
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa as set out on pages 4 – 14 of the Tribunal’s decision (CB 149 – 159) are in summary:
a)the applicant claims to fear persecution by the Indonesian police by reason of her association with her husband who was wanted by the police over a land dispute his employer had with the government. His membership of Islam Jamaah may also have been relevant;
b)the applicant claims that after her husband left Indonesia for Australia in order to escape the police’s attention, she was physically and emotionally abused by the police who were still after her husband;
c)the applicant claims that she had to report twice a day to the police station after her husband did not return from Australia. She also claims that the police tortured and hit her;
d)at the various stages of her review application the applicant gave different versions of the circumstances of her husband’s departure for Australia and the reporting conditions imposed on her by the police. She also claimed to have left her home and gave differing accounts of going to live with her parents or with friends and of having gone into hiding;
e)the applicant claims that her friendships with people who are Amadiyyah went against her. She was accused of being Amadiyyah herself; and
f)the applicant claims that if she returns to Indonesian she will not be able to get an identity card as she would have to go to a police station to get one.
The Tribunal’s decision and reasons
The Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal found that the applicant made a number of contradictory statements in her application, her representative’s first response and at the third hearing and it found that she was not a truthful witness. It found that her statements to it and to the Minister’s department lacked credibility.
Relevantly for the purposes of these proceedings, the Tribunal also found that:
a)the applicant was not physically and emotionally attacked by the Indonesian police and the Indonesian police did not ask her to report; and
b)the applicant was not still wanted by the Indonesian police.
The Tribunal recorded that the applicant claimed to fear persecution by reason of:
a)her membership of her husband’s family;
b)being the spouse of a person who is involved in a land dispute with the government;
c)being the spouse of a person wanted by the Indonesian police because he has ceased to report and/or to return to Indonesia as required;
d)being the spouse of a person who has been accused of being a member of Islam Jamaah; and
e)being a woman in Indonesia,
but was not satisfied that the applicant had been or would be persecuted as a member of such groups, whether particular social groups or otherwise.
Proceedings in this Court
The one ground set out in the amended application was pleaded as follows:
The Tribunal failed to address a claim that arose clearly on evidence given to the second Tribunal member who considered the case.
The applicant submitted that when giving evidence before the Tribunal as constituted on the second occasion she made a particular claim to fear persecution, which claim was not considered by the Tribunal as constituted on the third occasion. It has been noted that once an application for review is made to the Tribunal, the Tribunal remains seized of that review until it has made a valid decision on the review application. Consequently, if the applicant raised a recognisable Convention-based claim before the Tribunal during the second hearing and that claim was not considered by the Tribunal as constituted on the third occasion, then that may constitute jurisdictional error.
In support of the allegation made in her amended application in these proceedings the applicant referred to the following passage at p.6 of the decision of the Tribunal as constituted on the second occasion:
The applicant said that once a person becomes involved with the Indonesian police, the person was involved forever. This is especially so if the person has fled the country. The applicant knows that it will be the same for her when she goes back, only worse. The police will know that she has fled to Australia. They will therefore assume that she has lots of money and will try and [sic] extort this from her. The Tribunal asked her how she knew about the current behaviour and modus operandi of the Indonesian police, given that she had not been in Indonesia for a decade. She said that she saw reports about Indonesia and its police on Australian television. (p.6, Exhibit “1”)
The applicant submits that in this passage she was making a claim which was not dependent on the problems she had suffered in Indonesia and in respect of which she had made her principal claims to be entitled to a protection visa. It was submitted that here she was claiming to be a member of a particular social group comprised of people who had spent a considerable time in Australia in particular, or Western countries in general. It was submitted that this was a claim which demanded separate consideration by the Tribunal but was not given that consideration.
If the quoted passage sufficiently raised a relevant issue then the Tribunal should have dealt with it even if it was not identified by the Tribunal as a claim. If a claim is raised by the evidence, even if not expressly raised by the applicant, and is misunderstood or misconstrued by the Tribunal, then that can amount to a failure to consider the claim which can constitute jurisdictional error: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1 at 19 [60] and 20 [63].
However, the assertion contained in the passage quoted above at [13] depends on the applicant, at one point in the past, having come to the adverse attention of the Indonesian police whose treatment of her upon her return from Australia would be worse than it would have been otherwise. Such a claim depends on a link between the applicant’s potential return to Indonesia and events which occurred in Indonesia prior to her departure for Australia. In the quoted passage she says:
The police will know that she has fled to Australia.
This fact is important in considering the first respondent’s submission that to the extent that the applicant has claimed a specific fear of extortion it was rejected by the finding that she was not wanted by the Indonesian police, that being a finding of sufficient generality as to encompass all the applicant’s stated fears of police harm. As the Full Court of the Federal Court said in NABE’s case:
Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be “subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected”: Applicant WAEE at [47]. (at 20 [63])
In Applicant WAEEv Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 the Full Court of the Federal Court continued the passage quoted in NABE by saying:
Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked. (at 641 [47])
In this case the applicant’s fear of extortion cannot be separated from the events she alleged occurred in Indonesia prior to her departure for Australia. Although the particular social group postulated by her would have been something the Tribunal should have separately considered had it accepted her claims about any of the events in Indonesia prior to her departure, as the applicant’s allegations regarding those events were not accepted by the Tribunal, her claim to fear extortion had no factual underpinning. At paragraph 61 of its decision the Tribunal said:
In light of the Tribunal’s finding that the first applicant is not a credible witness and the other findings, and for the above reason the Tribunal also finds that the first applicant was not physically and emotionally attacked by the Indonesian police and was not asked to report by the Indonesian police. The Tribunal also finds that the first applicant did not go into hiding and that she is not still wanted by the Indonesian police. (CB 162)
In such circumstances the Tribunal had no obligation to consider the existence of the particular social class of which she claimed membership. Further, because the Tribunal rejected the applicant’s principal allegations concerning persecution by the Indonesian police, the claimed membership of a particular social group would have been dispositive of the claim.
The applicant’s claim to fear persecution by reason of her stay in Australia is thereby subsumed in the Tribunal’s more general rejection of her claim to fear persecution by the Indonesian police. Moreover, this was a rejection of the factual contention on which the claim in question rested. Consequently, the purported claim has been adequately dealt with by the Tribunal and jurisdictional error has not been shown.
Conclusion
As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 12 December 2007
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