SZLRW v Minister for Immigration
[2008] FMCA 464
•10 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLRW v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 464 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of a decision of the Refugee Review Tribunal affirming a decision of the delegate of the Minister not to grant a protection visa to the applicant – applicant a citizen of Thailand claiming fear of persecution as a result of having been in a “tribal” marriage – credibility – no failure to comply with Migration Act 1958 (Cth) ss.424A, 424AA or 425 – no reviewable error. |
| Migration Act 1958 (Cth), s.424a, 424AA, 425, 474 |
| Applicant: | SZLRW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3683 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 10 April 2008 |
| Date of Last Submission: | 10 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 10 April 2008 |
REPRESENTATION
| Applicant: | In Person |
| Solicitors for the Applicant: | Not legally represented |
| Counsel for the Respondents: | Mr Smith |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs in the sum of $4,500.00.
I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3683 of 2007
| SZLRW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is a young woman from Thailand. She seeks from the Court a review of a decision of the Refugee Review Tribunal refusing her application for a protection visa. She claims that the Tribunal fell into jurisdictional error in three ways:
a)By a constructive failure to exercise jurisdiction in not considering her claim or integers of her claim.
b)By making a procedural error in breach of either s.424A of the Migration Act or s.424AA of the Migration Act.
c)By asking a wrong question or failing to take a relevant consideration into account in dealing with the question of what the Applicant said was her customary or tribal marriage.
She asks the Court to set aside the Tribunal decision and remit her application to the Tribunal for determination according to law. The First Respondent, the Minister for Immigration and Citizenship, has filed a Response denying that there is a jurisdictional error in the Tribunal's decision.
Background
The Applicant arrived in Australia on 6th May 2007. On 14th June 2007 she applied for a Protection (Class XA) visa. She claimed in her application for a visa that she had an affair with a tribal boy which was opposed by her parents. She had been a university student but during university holidays she claimed to have met the person concerned and had undergone a tribal marriage.
However, she claimed that that very same day she found that her husband was previously married and had children and that he was also a drug addict. She claimed that he subjected her to violence and abuse and was also ill treated by what she described as the husband's ex wife and family. It appears however that she was referring to the woman who was the husband's current wife.
She claimed to have left the relationship after a short time and with the assistance of her parents left Australia. She claims to be a member of a particular social group as a young separated woman in Thailand and claimed that in that capacity she could not live in any part of Thailand without persecution.
A delegate of the Minister for Immigration and Citizenship considered her application but rejected it. The delegate considered that the Applicant's claims lacked credibility. The delegate referred to inconsistencies in the Applicant's claims and said:
The applicant's claim to have remained living in a tribal village and suffering sustained abuse over an unnamed period of time at the hands of her husband, his family and his ex wife is simply implausible. In the absence of any countervailing evidence, the inconsistencies in the application lead me to conclude that the applicant's claims are not genuine.
Even if the applicant was genuinely in an abusive marriage relationship, I consider it was nevertheless open to the applicant to leave her husband and relocate.[1]
[1] See Court Book at page 37
The delegate refused the application for a visa on 21st June 2007.
Application for Review by the Refugee Review Tribunal
On 18th July 2007 the Applicant applied to the Refugee Review Tribunal for a review of the delegate's decision. The Tribunal wrote to the Applicant and invited her to attend a hearing which took place on 4th October 2007. The Applicant attended the hearing and gave evidence with the assistance of an interpreter in the Thai language. The Tribunal asked the Applicant a number of questions about her application and the Applicant answered those questions and gave evidence on her own behalf.
The Tribunal signed its decision on 16th October and handed that decision down on 6th November 2007. The Tribunal affirmed the delegate's decision not to grant the Applicant a Protection (Class XA) visa. A copy of the Tribunal decision record can be found at pages 63 to 73 of the Court Book. In that decision record the Tribunal sets out the Applicant's claims and evidence, including giving what appears to be a detailed summary of the Applicant's oral evidence to the Tribunal[2].
[2] See Court Book at page 66 and 71
The Tribunal’s Findings and Reasons
The Tribunal's findings and reasons, found at pages 71 to 73 of the Court Book, accepted that the Applicant is a citizen of Thailand on the basis of the Applicant's Thai passport.
However, the Tribunal did not accept that the Applicant was a witness of truth. The Tribunal comprehensively rejected the Applicant's claims on the basis of a lack of credibility. The Tribunal considered the Applicant's application for a visitor's visa and the application for a protection visa, and found that it was implausible that the Applicant would marry against her parents' wishes, and within the space of 13 days leave that marriage and apply for a visitor's visa to Australia with the full support of her family, who she had alleged were vehemently opposed to the marriage. The Tribunal found that evidence to be implausible.
It was on that basis that the Tribunal was not satisfied that the Applicant was a person to whom Australia had protection obligations under the Refugees Convention and found that she did not satisfy the criterion set out in sub-section 36(2)(a) of the Migration Act for a protection visa.
Application for Judicial Review
The Applicant commenced proceedings in this Court for judicial review on 29th November 2007 by filing an application and an affidavit in support. In the application the Applicant seeks writs of certiorari and mandamus. She relies on three grounds:
i)The Tribunal committed jurisdictional error in failing to make a decision. The Tribunal failed to make a finding in all material claims; alternatively it did not deal with the integers of the claim.
ii)The Tribunal failed to provide information which is part of the reason for the decision in writing pursuant to s.424A of the Migration Act, or it failed to provide clear particulars orally pursuant to s.424AA of the Migration Act. The Tribunal erred jurisdictionally.
iii)The Tribunal made a jurisdictional error by asking the wrong question and identifying the wrong issue, or it failed to take relevant consideration into account. The Tribunal decision is illogical and irrational.
The Applicant provided particulars of each of those grounds. She has not filed any written submissions, but attended the Court and made oral submissions. She told the Court that the Tribunal had not considered her evidence about having been persecuted and ill treated by her husband's ex wife or other wife. She also claimed that the Tribunal did not consider her evidence about having been engaged in a tribal marriage.
The Applicant later told the Court that before she came to Australia she lived in Bangkok and her parents lived in the country in Thailand. She said that she went to the hills to get married, but realised that the husband already had a wife, and it was after that that she applied for a visa and came to Australia. She claimed to have been persecuted and does not dare go back to Thailand.
Counsel for the Respondent Minister, Mr Smith, submitted that the Applicant's first and third grounds can be placed in one group under a heading of a failure by the Tribunal or a constructive failure to exercise jurisdiction in not considering the Applicant's claim in making its decision. Ground 2 alleges procedural error in breaching either or both of s.424A of the Migration Act and s.424AA.
Conclusions
Ground 1
The first ground alleges that the Tribunal failed to make a decision or failed to make a finding on all of the material claims or not dealing with the integers of the claim in two ways:
a)The Tribunal failed to make a finding or deal with the issue of the persecution by the husband's ex wife.
b)The Tribunal failed to deal or making findings about whether the Applicant's fear was well founded for the Convention reason of a particular social group.
In considering that claim it appears from the Tribunal decision record that the Tribunal was aware of the Applicant's claim that she had been persecuted by the husband's former wife or current wife. The Tribunal referred specifically to that claim at page 71 of the Court book, saying:
She stated that her husband's ex wife and family treated her badly and assaulted her frequently. She claims to have been forced to do all the cooking and housework for the family. She claims that her husband's ex wife attempted to pour kerosene over her head and threatened to light it.[3]
[3] See Court Book at page 71
In my view, the Tribunal did consider and went on to reject that claim. The claim was rejected on the basis of credibility. The Tribunal just did not accept that the Applicant was a credible witness and made the finding that the Applicant was not a witness of truth. The Tribunal rejected the Applicant's claim in its entirety.
Ground 2
Dealing with ground 2, where the Applicant claims the Tribunal failed to provide information for comment in breach of s.424A(1) of the Migration Act, or failed to provide clear particulars orally under s.424AA of the Migration Act, the Applicant claimed that the particulars of that ground are:
The Tribunal said that it is implausible that the applicant would marry against her parents' wishes and within the space of 13 days leave the marriage and apply for a visitor's visa to Australia with the full support of her family, who she alleges were vehemently opposed to the union. The Tribunal finds this evidence to be implausible and does not believe that a daughter, who in early April 2007 fled her parents' home to marry a man who her parents were vehemently opposed to, would within weeks of the marriage have their full support for a prospective visit to Australia and their full financial backing for the duration.
The answer to this claim is that what the Applicant claims to be information upon which the Tribunal relied as a reason or part of the reasons for affirming the delegate's decision is not information at all. It was the Tribunal's finding. It was the Tribunal's assessment of the credibility of the Applicant's evidence. Information within s.424A of the Migration Act does not include the Tribunal's thought processes or its assessment of the evidence of the Applicant. It cannot be then that statement which the Applicant claimed to be information is in fact information and consequently there cannot be a breach of s.424A of the Migration Act.
In any event, as Mr Smith of counsel has pointed out, the matter should now be considered under the amendments to the Migration Act which came into operation on 29th June 2007. By those amendments there came about s.424AA of the Migration Act and there came an amendment to sub-section 424A(3) of the Act. There is now a s.424A(3)(ba) which has the effect of saying that:
Section 424A - Information and invitation given in writing by Tribunal
(3) This section does not apply to information:
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department;
Section 424AA relates to the situation where an applicant appears before the Tribunal because of an invitation under s.425. Section 424AA(a) provides that:
Section 424AA - Information and invitation given orally by Tribunal while applicant appearing
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
Even leaving aside the fact that what the Applicant says was information was not in fact information, I am satisfied that the Tribunal did put to the Applicant during the hearing the inconsistencies between what she claimed in her application for a visitor's visa and what she claimed in her application for a protection visa. Those inconsistencies got straight to the heart of the Applicant's claim.
Ground 3
The third ground the Applicant makes relates to jurisdictional error by asking a wrong question identifying a wrong issue and failing to take a relevant consideration into account. The Applicant also claimed the Tribunal decision is illogical and irrational.
The Applicant gave three particulars in that claim:
i)The Tribunal did not consider the customary marriage as a marriage.
ii)The Tribunal confused itself that the Applicant answering "not legally married" in the forms enough to conclude that she did not marry.
iii)The Tribunal did not consider there was a marital relationship between the Applicant and her husband.
In the Tribunal decision it is clear that the Applicant was asked questions by the Tribunal about the circumstances of this marriage. The Tribunal did deal with the circumstances of the marriage, and noted as follows:
The applicant when she completed the visitor visa application form in Thailand indicated that she had never been married. The applicant when she completed her protection visa application in Australia indicated that she had never been married. The applicant at hearing before the Tribunal indicated that she was not married, and that she had not disclosed the tribal marriage because it had not been formally registered in Thailand and thus was not an official marriage.[4]
[4] See Court Book at page 72
I am satisfied from that paragraph that the Tribunal did consider the circumstances of the marriage that the Applicant alleged. I am satisfied the Tribunal was not shown to have confused itself as to what the issue was, and the Applicant's claim that the Tribunal did not consider that there was a marital relationship between the Applicant and her husband is in effect no more than a challenge to the Tribunal's factual finding.
The fact is that the Tribunal did not accept any of the evidence about this tribal marriage. The decision is a decision made on the ground of credibility. The Tribunal comprehensively rejected the Applicant's claims on the basis that it found the Applicant was not a witness of truth.
It follows that all three of the Applicant's grounds fail.
I am mindful of the fact that the Applicant is not legally represented. I am conscious of the fact that the Court should give some attention to whether any other jurisdictional error has been made out.
I am not of the view that there has been shown to be any breach of s.425 of the Migration Act. The Tribunal invited the Applicant to attend the hearing. The issues that were discussed were the credibility of the Applicant's claim, and in fact the Tribunal decision was based on a credibility finding. This was exactly the issue that the delegate found, because the delegate rejected the Applicant's claim, again on the basis of the credibility or lack of credibility of the claim. In each case the delegate and the Tribunal found the Applicant's claims to be implausible.
There is no breach of s.425 of the Migration Act.
In dealing with s.424A of the Act counsel for the Respondent has very helpfully made a submission on this very point. He submitted that the Tribunal had referred to information that was contained in the Applicant's application for a visitor's visa, including the fact the Applicant was not married and had resided with her parents at one address for some time and living in Australia.
He submitted that this could be “information” within the meaning of s.424A and it could be the fact that the Tribunal considered that that would be the reason or part of the reason for the decision. However, he dismissed that view because the same information was contained in the Applicant's protection visa application.
Counsel drew the Court's attention to the amendments of the Migration Amendment (Review Provisions) Act 2007, which as I said, came into operation on 29th June 2007. In particular information described in s.424A(3)(ba), which was added by that amendment, does not fall within s.424A(1), because it is information that:
“The applicant gave during the process that led to the decision that was under review, other than such information that was provided orally by the Applicant to the Department; or...”
Even if the information referred to was contained in the application for the visitor's visa, that does not affect the fact that because it was included in the application for a protection visa it is clear there was no obligation on the Tribunal under s.424A(1) because of the operation of s.424A(3)(ba).
I am satisfied there is no jurisdictional error, and consequently the Tribunal decision is a privative clause decision as defined by sub-section 474(2) of the Migration Act. Privative clause decisions are final and conclusive and are not subject to orders in the nature of certiorari and mandamus, which the Applicant seeks.
It follows that the application must be dismissed.
There is an application for costs on behalf of the First Respondent Minister. The Applicant has been unsuccessful in her claim and it is an appropriate matter for a costs order. The amount sought is $4,500.00 which is within the scale set out in the Federal Magistrates Court Rules. The Applicant wishes to pay by instalments, I am satisfied that whilst I should make the order, I will allow time to pay.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 11 April 2008
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