SZLID v Minister for Immigration
[2008] FMCA 306
•29 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLID v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 306 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – breach of s.424A not proved – merits review not available in judicial review proceedings – errors of fact by the Tribunal do not generally amount to jurisdictional error – Tribunal under no obligation to make inquiries. |
| Migration Act 1958, ss.91R, 424A, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZLID |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2838 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 29 February 2008 |
| Date of Last Submission: | 29 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 29 February 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr J.D Smith |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $4,700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2838 of 2007
| SZLID |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India where, she claims, she was subjected to regular physical abuse by her husband. She alleges that while in India she sought assistance from her family and from women’s organisations but was unable to obtain effective help. The applicant arrived in Australia on 10 February 2007.
After her arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 18 April 2007. 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.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 9 of the Tribunal’s decision (Relevant Documents (“RD”) pages 97 – 102). Relevantly, they are in summary:
Protection visa application
In her protection visa application, the applicant made the following claims:
a)she was born into a Hindu family of high caste and married a man from a lower caste against her parents’ wishes;
b)about a month after her marriage the applicant realised that her husband got drunk at night. When she asked him not to drink too much he began to hit her and this became a regular habit;
c)the situation deteriorated despite the applicant’s attempts to please her husband. On one occasion she was hospitalised for three days after he hit her in the neck;
d)two years into the marriage, the applicant told her husband that she wanted to have a baby. Her husband responded by torturing her even more;
e)in 1997 the applicant became pregnant. When her husband found out he hit her in the stomach so badly that she had an abortion. After this incident the applicant told her parents what was going on in her life but they refused to shelter her in their home, saying that Hindu women only get married once;
f)one day she tried to kill herself by taking sleeping pills and ended up in hospital;
g)in 1999 the applicant’s husband became a CPM leader;
h)the applicant gave birth to a son on 26 January 2000. Her husband treated their son cruelly and the applicant moved into her parents’ house for a short while;
i)the applicant’s husband started to punish her more and more. He sometimes forced her to have sex with his political and business partners in order to benefit his political and business ambitions. The applicant sought help from women’s organisations but they could not do much to help her; and
j)when her husband began to hit their son she became furious. She escaped to her relatives twice but her husband forced them to send her home. The applicant realised that she had to depend on herself and completed a beautician course. During this time, her husband tortured her more and more.
Application for review
On 5 July 2007 the Tribunal received a letter from the applicant enclosing further documentation (RD 56). The letter stated that:
a)the applicant left India because her ex-husband tortured her;
b)her ex-husband was trying to find someone in Sydney who would take her back to India; and
c)she was very traumatised and continues to experience the physical and psychological effects of her abuse in India.
The applicant provided a number of documents to the Tribunal including:
a)a medical certificate dated 1 April 2007 stating that the applicant attended the clinic of Dr Datta on 15 February 1999 to terminate an eight-week pregnancy;
b)a medical certificate dated 12 April 2007 stating that the applicant attended the clinic of Dr Datta on 20 June 1999 with injuries caused by her husband’s assault;
c)a letter dated 8 October 2006 written by the applicant to “The Feminine Right Committee Branch” regarding “Bride Torture”, seeking assistance for herself and her son;
d)a letter dated 7 September 2006 written by the applicant to “The Ward Committee” regarding “Bride Torture”, seeking assistance;
e)a document addressed to “Respected Brother Bapi” saying that the applicant’s husband is an active worker of the Party. The writer states that the applicant’s husband had a problem and hopes that the problem could be solved; and
f)a document dated 29 July 2006 setting out details of the applicant’s divorce, purportedly signed by the applicant and her ex-husband.
Tribunal hearing
At the hearing before the Tribunal, the applicant made the following additional claims:
a)she often went to live at her father’s place because of her husband’s abuse;
b)she lived with her husband “on and off” since the birth of their son in 2000, though continued to live with him after their divorce;
c)she and her husband made a mutual decision to divorce;
d)her husband forced her to terminate a third pregnancy, perhaps in 2002;
e)the documents she provided to the Tribunal were part of a file of documents she had obtained and carried with her from India;
f)regarding her claim that she was forced to engage in sexual activities with her husband’s business partners, the applicant stated that she reported the matter to the police but they refused to file any reports; and
g)she later stated that a divorce application had been filed but that she and her husband are still married.
On 13 July 2007 the applicant attended the Tribunal and spoke to a case officer regarding her matter. She stated that the medical certificate from Dr Datta dated 12 April 2007 was reissued and that the original certificate was issued in 1999.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it 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’s decision was based on the following findings and reasons:
a)the Tribunal did not accept that the applicant was a credible witness, noting that certain aspects of her claims were contradictory, inconsistent and implausible, including:
i)the “deed for agreement for divorce” as submitted by the applicant indicated that she and her husband resided at separate addresses since 16 April 2004, however, the applicant’s oral evidence to the Tribunal was that even though her husband wished to divorce her, he still forced the applicant to live with him. The Tribunal found this implausible and did not accept the applicant’s claim that she was unaware of the contents of the divorce document when she signed it;
ii)the applicant claimed that her husband did not allow her to continue physiotherapy training as he did not like her to leave the house, yet went on to say that she worked three, four or five days each week at a beauty parlour;
iii)the applicant claimed that the two statements from Dr Datta were obtained prior to her leaving Australia, however, they were signed and dated on dates in April 2007, some weeks after the applicant’s arrival in Australia on 10 February 2007. The applicant later suggested that perhaps the documents had been sent to her;
iv)she variously stated that she did not have any documentation regarding the second pregnancy termination because
· her husband threw it out;
· she forgot to bring it to Australia and her husband was holding on to it; and
· she did not save the doctor’s statement because she did not think it was significant;
v)the applicant’s visitor’s visa to travel to Australia was granted on 27 November 2006, yet she did not arrive in Australia until 10 February 2007. Her explanation for the delay was that she was waiting for a change to occur in her husband;
b)in light of the applicant’s fundamental lack of credibility, the Tribunal did not give any weight to the statements provided in:
i)the two medical certificates from Dr Datta;
ii)the letter from the applicant to the Feminine Right Committee Branch;
iii)the letter from the applicant to the Ward Committee; and
iv)the letter addressed to “Respected Brother Bapi”.
Proceedings in this Court
The grounds of the amended application upon which the applicant relies in these proceedings can be summarised as follows:
a)The Tribunal breached s.424 [sic; should be s.424A] of the Act.
b)The Tribunal failed to properly consider the test of serious harm under s.91R(2) of the Act.
c)The Tribunal failed to consider the applicant’s evidence properly.
d)The Tribunal did not use country information, did not have a fresh look and did not consider Amnesty International information.
e)The Tribunal applied the wrong test.
f)The Tribunal did not take into account certain relevant considerations or integers central to the applicant’s claims.
g)The Tribunal failed to see that the applicant satisfied the criteria for a protection visa.
In argument today the applicant raised additional matters, which can be summarised as follows:
a)The Tribunal reached the wrong decision.
b)The Tribunal made errors of fact.
c)The Tribunal did not investigate the claim properly.
Dealing with each of these grounds in turn:
Breach of s.424A
It is said in this asserted ground of review that:
the Tribunal relied in [i]ndependent evidence as to the prevalence of claim about political persecution. On the basis of that the Tribunal was not satisfied as to the genuineness of my claims nor of the genuineness of my statements about my harassment of systematic nature.
This is simply wrong. The applicant’s claim had nothing to do with political persecution. No independent country information was relied upon by the Tribunal, whether on the question of political persecution or on the questions which were actually raised by the applicant in her review application. The Tribunal relied upon information which was given to it by the applicant on the claim as she presented it. Therefore, because of s.424A(3)(b), there were no s.424A(1) obligations and this asserted ground of review is not made out.
The Tribunal failed to consider the test of serious harm under s.91R(2)(a)
The test of serious harm under s.91R was specifically referred to by the Tribunal at p.3 of its decision. The matters which can comprise serious harm as set out in s.91R(2) were referred to specifically by the Tribunal in the fourth paragraph on that page of its decision. Consequently, it is clear that the Tribunal knew what test it had to apply and what the source of that test was. But relevantly for this matter, the applicant’s claims were disbelieved and because of this there was no need for the Tribunal to consider whether the applicant had a well-founded fear of persecution involving serious harm. Consequently, this asserted ground of review is not made out.
The Tribunal failed to consider my compassionate grounds
The third pleaded ground is set out in the following terms:
I have given adequate evidence to the Tribunal that I was physically assaulted on several occasions and I had been forced to have sex with his political and business partners for the benefit of his political and business ambitions, the Tribunal member failed to consider my compassionate grounds.
This is really a complaint that the Tribunal reached a decision on the merits of the applicant’s claim with which the applicant disagrees. In proceedings such as these the Court’s role is to ensure that the Tribunal followed the law and proper procedure. It cannot substitute its own views of the facts or the merits of an applicant’s claim for those of the Tribunal, except in rare circumstances which do not exist here. The Tribunal considered the material before it and reached a conclusion which was open to it. This ground does not disclose jurisdictional error on the part of the Tribunal.
Tribunal failed to use country information
This ground is made up of three elements. The first part refers to “general information gathered by the Tribunal”. As already noted in respect of the first ground pleaded in the amended application, no independent country information was referred to or relied upon by the Tribunal and thus it cannot be said that there was any “general information gathered by the Tribunal”.
The second element of this ground is that the Tribunal “was preoccupied and did not have a fresh look”. The Tribunal set out and also considered the material before it and reached a conclusion which was logical, cogent and open to it. This element of the fourth ground of review is not made out.
The final element of this ground was that the Tribunal failed to consider the “Amnesty International country information”. There was no such information before the Tribunal and this element is not made out.
The Tribunal applied incorrect tests
In order to properly deal with this asserted ground of review it is best that it be quoted:
a) By requiring independent evidence of the fact before the Tribunal would accept a claim being made by the Applicant the Tribunal was, in effect, placing too high an onus of the proof of the applicant and failing to give the applicant the benefit of the doubt.
b)The Tribunal left out individual elements of the applicant claim 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.
The first element of this ground is the reference to independent evidence. A consideration of the Tribunal’s decision reveals that it did not require “independent evidence of the fact”. It dealt with the evidence which was put before it by the applicant. The fact that this was not accepted was not because independent evidence was not presented, but because the applicant’s version of events was considered to be not credible.
The next part of this ground refers to onus of proof. In considering the applicant’s application for review of the delegate’s decision the Tribunal had to be satisfied that she met the criteria for a protection visa and, because of this, it was for the applicant to put material before the Tribunal which might assist it to reach that level of satisfaction. However, the applicant did not have an onus of proof as that term is understood in the litigious context and thus it could not be said that the Tribunal had placed “too high an onus of proof” on her.
The next element is that the Tribunal failed to give the applicant the benefit of the doubt. Although a liberal attitude should be taken to considering the credibility of an applicant’s claims, the Tribunal is not obliged to accept such claims uncritically. Here, there was no reason to give the applicant the benefit of the doubt because she was thoroughly disbelieved.
The next element of this ground is that the Tribunal “left out individual elements of the applicant [sic] claim”. When queried about this today, the applicant identified those individual elements which she said had been left out as being the doctor’s certificates, and why she took some time to leave India after getting her visa for Australia. However, as the summary of the Tribunal’s decision set out earlier in these reasons discloses, those matters were considered by the Tribunal and thus this allegation cannot be made out on the facts. But in any event, the Tribunal’s conclusion was based on a credibility finding which did not turn on individual elements of the applicant’s claim but on a consideration of the evidence overall. Consequently, the fifth asserted ground of review is not made out.
Failure to take account of relevant considerations or integers of the claim
The sixth and seventh grounds pleaded in the amended application rely on an allegation that the Tribunal “did not take into account certain relevant considerations or ‘integers’ central to the applicant’s claims”. This cannot be made out on the facts. The factual matters which the applicant put before the Tribunal were considered by it. Moreover, the question of whether the applicant’s claims, evidence and arguments satisfied the Tribunal that she had a well-founded fear of persecution for a Convention reason was properly considered by the Tribunal. At the end of the day, the failure of the applicant to convince the Tribunal that she was telling the truth makes the issues raised by this ground of no moment. As the Tribunal disbelieved the applicant there was nothing credible to consider in the context of the tests under the Convention and the Act.
The Tribunal failed to see that the applicant satisfied the four key elements of the Convention test
For the reasons set out in relation to the third pleaded ground of review, this ground too must fail.
The Tribunal reached a wrong decision
Just as with the third and the eighth pleaded grounds of review, the allegation raised today by the applicant amounts to an invitation to review the Tribunal’s decision on the merits. This is not a proper basis for judicial review and no jurisdictional error is demonstrated by the matters raised in connection with it.
The Tribunal made errors of fact
That the Tribunal may have mistaken a fact or reached an incorrect factual conclusion does not amount to jurisdictional error except, for instance, if the fact is a jurisdictional fact, which is not suggested in the context of this allegation made today which was based on issues connected with the doctor’s certificates. Consequently, this ground does not disclose jurisdictional error on the part of the Tribunal.
The Tribunal did not investigate
Although the Tribunal has power to make inquiries it is not obliged to do so except possibly in rare circumstances which do not exist here. In this case, it was a matter for the applicant to put material before the Tribunal and if that evidence and those arguments did not satisfy the Tribunal that she met the criteria for a protection visa, the issue cannot be turned back on the Tribunal and it be said that it should have done something that the applicant could have or should have done, and yet did not do. This final asserted ground of review does not disclose jurisdictional error on the part of the Tribunal.
Conclusion
As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 17 March 2008
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