SZJWU v Minister for Immigration - [2008] FMCA 635

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJWU v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 635

MIGRATION – Application to review decision of Refugee Review Tribunal – no point of principle.

Migration Act 1958 (Cth)

Minister for Immigration & Multicultural Affairs v Ibrahim (2000) 204 CLR 1
Mohammed v Minister for Immigration & Multicultural Affairs [1999] FCA 508
SZBEL v Minister for Immigration & Multicultural Affairs & Indigenous Affairs (2006) 228 CLR 152

Applicant:

SZJWU

First Respondent:

MINISTER FOR IMMIGRATION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3779 of 2006

Judgment of:

Barnes FM

Hearing date:

19 March 2008

Date for Last Submission:

7 May 2008

Delivered at:

Sydney

Delivered on:

23 May 2008

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Ms L. Clegg

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3779 of 2006

SZJWU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for a review of a decision of the Refugee Review Tribunal handed down on 28 November 2006 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of India, arrived in Australia in April 2006 and applied for a protection visa. The applicant claimed that she was seriously harmed by her former husband. She claimed that he beat her, subjected her to other forms of physical and psychological harm, neglected her and showed little interest in her or her family.
She claimed that she was assaulted by him at their workplace in May 2001 and required medical treatment. She attempted suicide. She claimed that she lost her memory for over two years and was not able to work again. She lodged a complaint with the police against her husband but withdrew it after her brother was threatened. The applicant claimed that she was forced to leave India because of persistent harassment by her former husband.
The applicant provided a number of documents to the Department in support of her application, in particular in relation to her medical condition and the incident at her workplace.
A copy of the transcript of the Tribunal hearing is before the Court as an annexure to an affidavit of Louise Bernadette Buchanan affirmed on 3 March 2008 and filed on 5 March 2008. In the hearing the applicant told the Tribunal that the last time she had contact with her former husband (whom she had divorced) was in December 2003 when she and her family met with him to sign the divorce papers. She told the Tribunal that she did not see her husband after this time, but that she thought that he walked around her home and made anonymous or silent telephone calls to her house.
The applicant told the Tribunal that in addition to the difficulties she had experienced with her former husband she had suffered social ostracism as a young divorced childless woman. She claimed that people had pointed at her and gossiped about her in public and that her husband had spread rumours about her. She also claimed that as a divorced and childless woman she was not allowed to attend some religious festivals and that she was bound to follow the instructions of others.
In its findings and reasons the Tribunal summarised the applicant's claims and the materials submitted in support of her application, including her claim that she had had to change her name and marry a person she did not know so that she could obtain a visa to travel to Australia and that she feared that her former husband would seek to harm or kill her in the future.
The Tribunal had regard to contradictions in the evidence provided by the applicant at the Tribunal hearing, in particular in relation to where she had lived, but formed a view that while the applicant’s memory was poor and she had a fractured recollection of her circumstances in India, she was sufficiently lucid to present her core claims.
The Tribunal accepted that the applicant was an Indian citizen who was beaten and seriously mistreated by her first husband during their marriage. It also accepted that she had suffered ostracism by society in India after her marriage failed because she was a young divorced childless woman.
However, the Tribunal was not satisfied that the applicant was at risk of harm by her former husband at the time she departed India in 2006. It stated:
The Tribunal finds that the applicant’s difficulties with her first husband effectively ended when she divorced him. The Tribunal considered the applicant’s claims that her husband harassed her until she came to Australia. However, the Tribunal finds that the applicant had no contact with her husband after December 2003 and no independent evidence to confirm her belief that he was stalking and harassing after they divorced. The Tribunal has formed the view that if the applicant’s former husband wanted to contact or harm her after the divorce papers were signed he had ample opportunity to do so while the applicant was living in India. The Tribunal accepts that the applicant is afraid of her former husband and that she believes he will seek to harm her in the future. However, the Tribunal finds that it is mere speculation on the applicant’s part that her first husband was seeking to harm her after they divorced. The Tribunal finds that the applicant’s fear in this regard is not well-founded and is satisfied that she will not be at risk of harm by her former husband in the reasonably foreseeable future.
The Tribunal also considered the applicant's claims of ostracism as a young divorced childless woman, which it accepted had occurred as she had described. However it found that the ostracism she had suffered in India did not amount to persecution in the context of the Refugees Convention. It referred to a number of authorities, in particular the statements by McHugh J in Minister for Immigration & Multicultural Affairs v Ibrahim (2000) 204 CLR 1 at 55 that the "Convention protects persons from persecution, not discrimination", and that much, "will depend on form and extent of the harm." The Tribunal found that the ostracism suffered by the applicant did not amount to persecution, albeit it accepted that the applicant found it hurtful and a motivating factor in her decision to leave the country. It was of the view that the circumstances the applicant described and the similar difficulties she anticipated in the future did not amount to harm which was sufficiently serious to constitute persecution. Accordingly the Tribunal found that the applicant did not have a well-founded fear of persecution in India for a Convention reason.
The applicant sought review by application filed in this Court on 18 December 2006. She relies on an amended application filed on 27 March 2007. She filed written submissions on 10 March 2008.
Before considering the grounds relied on by the applicant I note that in the hearing before this Court the applicant told the Court on a number of occasions that she was nervous. She appeared to have difficulties talking about her claims. She claimed that she was unable to express herself and was going blank. In the circumstances I gave the applicant an opportunity to file further written submissions in relation to the grounds in her amended application on the basis that if she did so the first respondent would have a similar opportunity. A timetable was set for the filing of such further submissions. However the applicant did not file any further written submissions as provided for in the orders. Nor have any submissions been received from her at this date. She was notified by mail that in the absence of any such submissions the Court would make a decision on the material before it.
The only ground in the amended application is that the Tribunal applied the wrong test. There are two particulars to this ground, as follows:
(a) By requiring independent evidence of a fact before the Tribunal would accept a claim being made by the Applicant the Tribunal was, in effect, placing too high an onus of proof on the Applicant and failing to give the Applicant the benefit of the doubt;
(b) The Tribunal left out individual elements of the Applicant's claims and tested whether they individually amounted to persecution rather than look at the claim as a whole to determine whether the claim so considered amounted to persecution.
It has not been established that the Tribunal required independent evidence of a fact and placed too high an onus of proof on the applicant as contended. In particular, it is not apparent that the Tribunal failed to give her the benefit of the doubt. On the contrary, as submitted for the first respondent, the Tribunal in fact largely accepted the applicant's factual claims. The applicant failed because the Tribunal found that on her own evidence her subjective fear of her husband was not well-founded. It also found that any harm in the form of the ostracism suffered or feared by her was not serious enough to amount to persecution for the purposes of the Refugees Convention.
This is not a case in which the Tribunal reasoning related solely to an absence of corroborative evidence (cf Mohammed v Minister for Immigration & Multicultural Affairs [1999] FCA 508). It is apparent that for the most part the Tribunal relied upon and accepted the factual claims made by the applicant. The Tribunal did refer to the fact that the applicant had not provided "independent evidence" to confirm her belief that her former husband was stalking and harassing her after December 2003. However given her evidence that she had had no contact with him since December 2003, this observation was open to the Tribunal, as was its finding that it was mere speculation by the applicant that her first husband was seeking to harm her after the divorce. No jurisdictional error is established on the basis contended for in the first particular.
Nor has it been established that the Tribunal left out individual elements of the applicant's claims and did not look at the claims as a whole in a manner constituting jurisdictional error. The Tribunal was clearly alive to all the aspects of the applicant's claims. The transcript of the Tribunal hearing reveals that it put to her both its concern in relation to whether her subjective fear of her husband was well-founded and also the issue of whether the ostracism she feared amounted to persecution consistent with the requirements of SZBEL v Minister for Immigration & Multicultural Affairs & Indigenous Affairs (2006) 228 CLR 152. This is not a case in which the Tribunal fell into error by failing to consider the cumulative weight of the applicant's claims in the manner contended. Having found that the applicant’s fear of harm by her husband was not well-founded it was not necessary for the Tribunal to consider the prospect of such harm in conjunction with the claimed fear of ostracism in determining whether the ostracism she feared constituted sufficiently serious harm to amount to persecution. It is apparent that it understood that part of her fear of ostracism was based on a claim that her husband spread rumours about her.
In her written submissions the applicant raised other grounds. First she claimed that the Tribunal failed to consider her claim of social ostracism as a young divorced and childless woman as a claim from the perspective of membership of a particular social group. No error is established on this basis. The Tribunal effectively proceeded on the basis that even if there was a Convention nexus (such as membership of a particular social group) to the applicant's claims in relation to ostracism, any persecution experienced or feared by her would not amount to serious harm. In such circumstances, as the Tribunal was not satisfied that her concerns amounted to harm which was sufficiently serious as to constitute persecution, it was not necessary for it to address whether there was, in fact, a particular social group as claimed.
The applicant's written submissions also took issue with the fact that the delegate of the first respondent had determined that she could avoid harm by relocating within India. However the Tribunal did not dismiss the application for review based on principles of relocation and this contention does not establish jurisdictional error on the part of the Tribunal.
Finally the written submissions took issue with the Tribunal's finding that the applicant's fear of her husband was not well-founded on the basis that the Tribunal had accepted that the applicant was beaten and seriously mistreated by her former husband. It was submitted that the Tribunal was wrong in its findings and had made a "contradictory" finding in that it “assumed” that the applicant would not be at risk of harm from her former husband in the reasonably foreseeable future. It was submitted that the Tribunal failed to “realise” the applicant’s future persecution and that her former husband “could play a significant role to put [her] down like social ostracism where physical harm would not possible” (sic).
Insofar as the applicant seeks merits review in suggesting that the decision is wrong and contradictory, merits review is not available in this Court. It was open to the Tribunal to proceed on the basis that while it accepted that the applicant had a genuine fear of her husband and that her claims about his past treatment of her were true to a large extent, it was nonetheless relevant to have regard to what had occurred since December 2003 and to find that the applicant's fear was no longer well-founded in all the circumstances of the case. She claimed that her husband had and would have a role in her social ostracism. However the Tribunal understood and addressed this claim. It was open to the Tribunal to find that the ostracism feared was not sufficiently serious to constitute persecution.
No jurisdictional error is established on any of the bases contended for by the applicant. As no jurisdictional error has been established the application must be dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 23 May 2008