SZLYM v Minister for Immigration
[2008] FMCA 1091
•23 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLYM v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1091 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – no breach of s.425 of the Migration Act 1958 – applicant must have known from the Tribunal’s questions that the credibility of her entire account was in issue – in judicial review proceedings Court cannot review the Tribunal’s findings of fact or its conclusion on the merits of review. |
| Migration Act 1958, ss.424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZLYM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 277 of 2008 |
| Judgment of: | Cameron FM |
| Hearing date: | 23 July 2008 |
| Date of Last Submission: | 23 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 23 July 2008 |
REPRESENTATION
| The Applicant appeared in person |
| 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 $3,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 277 of 2008
| SZLYM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Thailand where she claims she was in a relationship with a Cambodian man. She alleges that she was physically and sexually abused by him and that this subsequently led to her having to flee the country. The applicant arrived in Australia on
8 June 2007.
The applicant claims to fear persecution in Thailand because of the relationship she had with this man who she alleges will find her anywhere she goes in Thailand. She also claims that because he is a drug addict she cannot get any help from the police because of corruption.
After her arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on
17 September 2007. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental 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, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s application for a protection visa are set out on pages 4 – 7 of the Tribunal’s decision (Relevant Documents (“RD”) pages 72 – 75). Relevantly, they are in summary:
a)while at university the applicant met and had a relationship with a boy of whom her parents did not approve. She ran away from university and her parents. The applicant and the boy lived together from the end of January 2007 until she left Thailand;
b)she left Thailand because she had problems with her boyfriend including that he was already married, he sold drugs and had friends in the mafia;
c)her boyfriend became violent after they began living together and beat and sexually abused her and on many occasions tried to kill her. He assaulted her on five or six occasions but she never needed to seek medical treatment for the assaults;
d)she wanted to leave her boyfriend and tried to do so, but he and his friends always found her and hit her to make her go home;
e)they found her because she continued to attend university and her job at KFC and, in any case, they would find her anywhere she went in Thailand. The applicant later stated that her attempts to get away occurred during university break, and during this period her boyfriend did not allow her to go to work;
f)she could not seek help from the police in Thailand because they are corrupt and heavily biased against women. She made reports twice to the police about the assaults and they merely told her boyfriend not to hit her again;
g)as a young separated woman she cannot live anywhere in Thailand without persecution;
h)she thought her boyfriend believed she was going to her parents’ home when in fact she came to Australia. As far as she knew, her boyfriend had not been to her village since she has been in Australia and although she was told by someone that a man had been to look for her, but she was not sure if it was him; and
i)she was able to obtain a temporary business visa as she was a part-owner of a hairdressing salon and had owned it eight months prior to her departure. The applicant later stated that in 2006 and at the time of the visa application she worked for a company selling clothes and shoes.
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 consider that the applicant was a truthful or credible witness, noting that at times she was extremely vague and gave the impression that she was evasive and trying to avoid answering questions. Further, there were inconsistencies and deficiencies in the applicant’s evidence relating to her core claims, including that:
i)she did not mention in her protection visa application that she had lived in Bangkok, that she studied at university and worked at KFC while living there, that she had an interest in a hairdressing salon or that she had worked for a retail clothing company; and
ii)she made inconsistent comments as to how her temporary business visa application was made, first stating that she had applied herself and later saying that the clothing and shoe retailer company had lodged it for her;
b)in light of these inconsistencies, the Tribunal was not satisfied that the applicant was telling the truth in relation to any of her claims;
c)the Tribunal considered that the applicant’s evidence about the relationship with her boyfriend and her fears in relation to him were also vague, inconsistent and implausible, noting that:
i)although the applicant said she had been beaten by her boyfriend five or six times, she never had to seek medical treatment even for what she said was a knife wound on her wrist which she treated with cream;
ii)her evidence as to whether she was attending university and her job at KFC during the period when she said she was assaulted was inconsistent; and
iii)although she said that her boyfriend would find her anywhere in Thailand and that she tried to hide from him, she does not think that he has made any attempt to locate her at her family home where he believes she went when she left Bangkok;
d)even if the basis of the applicant’s account were accepted, in the Tribunal’s view, the history of violence given by the applicant did not amount to a credible account of serious harm amounting to persecution as she never required medical treatment after the alleged assaults and she did not take serious, obvious and more reasonable measures than flight overseas to get away from her boyfriend;
e)the Tribunal did not accept that the applicant left Thailand to escape harm amounting to persecution from a violent boyfriend from whom she could not obtain protection by any other means; and
f)there was no evidence to suggest that young separated women are, in fact, persecuted for this reason in Thailand. Moreover, according to her oral evidence, the applicant was not “separated” as she lived alone in Bangkok for some years before living with her boyfriend and there was also no reason to suggest that she could not return to her family.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
(a)The Tribunal made a jurisdictional error of law as it failed to raise important question about my fear of persecution if I return to Thailand rather it attempted to contradict and discredit me and failed to accord procedural fairness in accordance with s.425 of the Migration Act.
(b) The Tribunal made jurisdictional error because it’s over reliance on inconsistencies in my claims (I do not know lot) concerning peripheral matters. It failed to ask itself the correct legal question whether I suffered persecution or not under the Australian refugee law.
(c) The Tribunal committed jurisdictional error as it failed to put every issues under s.424A although it put lot of disbelief which I did not answer because there is not mentioned my real problems.
In her oral submissions today the applicant also raised matters concerning the Tribunal’s conclusion on the merits of her application. I will now deal with each of the pleaded grounds in turn and lastly with the matters raised in oral submissions today by the applicant.
Failure to accord procedural fairness in breach of s.425
As to the first ground pleaded in the application and dealing with the second element of it first, nothing in the Tribunal’s decision record bears out the allegation that the Tribunal set out to contradict or discredit the applicant. With the exception of the information from the departmental file concerning the trafficking of women for the sex industry, which was disregarded by the Tribunal when reaching its decision, all of the evidence before the Tribunal was given to it by the applicant and it did not seek contradictory information. If the Tribunal discerned contradictions and difficulties in the applicant’s narrative then, as a review of the Tribunal’s decision record reveals, and most particularly its summary of the evidence which the applicant gave it, that was because the narrative itself contained those deficiencies.
The applicant also implies that the Tribunal did not approach its task conscientiously but embarked on the review with a pre-formed intention to affirm the delegate’s decision. No motivation for such an intention has been suggested and neither has any evidence been advanced which would support a conclusion that the Tribunal did not approach its task in good faith. An allegation such as this is serious indeed implying as it does personal fault on the part of the Tribunal member and such an allegation must be clearly proved. Not only is this allegation not clearly proved, it is entirely unsupported by evidence.
I now turn to the first element of the first allegation, namely, that the Tribunal failed to raise important questions about the applicant’s claim to fear persecution. Because this application is framed in terms of s.425 of the Act, any suggestion that the applicant intended to say that the Tribunal ought to have elicited from her an elaboration of her account may be dismissed as incorrect.
In the context of s.425, what the allegation is really saying is that the Tribunal failed to notify the applicant of determinative issues arising in relation to the decision under review. However, the Tribunal’s decision record reveals that it went to some lengths to set out to the applicant the matters which were causing it concern. Indeed, it did so in such a way that she must have known that the credibility of her entire account was in issue. As a result, there is no basis to conclude that the Tribunal failed to discharge its obligations under s.425 to notify the applicant of the determinative issues.
Thirdly and finally, in relation to the first ground pleaded in the application, contained in the particulars to the allegation is a suggestion that the alleged failure to raise important issues also amounted to a breach of s.424A of the Act. Such an assertion cannot be made out in light of the fact that the Tribunal did give the applicant a comprehensive s.424A(1) notice and otherwise based its decision on the information given by the applicant herself at the Tribunal hearing, which information falls within the exception to the operation of s.424A(1) found in s.424A(3)(b). In light of these facts, no breach by the Tribunal of s.424A is disclosed.
In no other respect do the various particulars of the first allegation add any additional substance to that allegation. Consequently, the first pleaded ground does not disclose a basis upon which the Tribunal’s decision might be set aside.
Tribunal’s over-reliance on inconsistencies in applicant’s claim
Turning now to the second ground pleaded in the application, it can be observed that it is a complaint about the weight which the Tribunal put on certain aspects of the evidence or about the conclusions which it drew from that evidence. Such matters are the preserve of the Tribunal. The Court cannot substitute its own views of the facts of a claim or review the Tribunal’s conclusions concerning such facts. As to the allegations that the Tribunal failed to ask the right legal question, this supposes that there was a factual basis for the application of the relevant tests. In this case there was not because the applicant was disbelieved.
Breach of s.424A
Turning to the third pleaded ground, the alleged breach of s.424A, for the reasons already given concerning the s.424A issue raised by the first ground pleaded in the application, the third ground is also not made out.
Merits review
Finally, today the applicant made fairly detailed submissions as to the merits of her application and recounted her personal history as a basis upon which the Tribunal’s decision might be reconsidered or reviewed. However, just as the Court cannot review the Tribunal’s factual findings so it cannot review the Tribunal’s conclusion on the merits of a review application which comes before it. The Tribunal’s role is to make findings of fact and to reach conclusions on the merits of protection visa applications. It is for the Court to ensure that the Tribunal applies correct procedure and applies the law correctly.
If the Tribunal applies correct procedure and applies the law correctly, the Court cannot set aside the Tribunal’s decision even if it were to disagree with its findings and conclusions.
Conclusion
For these reasons, jurisdictional error on the part of the Tribunal has not been demonstrated. Consequently, the application will be dismissed.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 1 August 2008
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