SZMDP v Minister for Immigration
[2008] FMCA 1036
•23 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMDP v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1036 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Thailand because of abuse by her husband – applicant not believed – whether the Tribunal decision was unreasonable or overlooked part of the applicant’s claims considered – no reviewable error found – observations on the need for caution by Tribunal members in drawing adverse credibility conclusions from written statements made by others on behalf of the applicants. |
| Migration Act 1958 (Cth) |
| Minister for Immigration v SGLB [2004] 207 ALR 12 WAEE v Minister for Immigration [2003] FCAFC 184 |
| Applicant: | SZMDP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 935 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 23 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 23 July 2008 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms M Palmer Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 935 of 2008
| SZMDP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 27 March 2008. The Tribunal affirmed a decision of a delegate of the Minister not the grant the applicant a protection visa.
Background facts relating to the applicant's claims and the Tribunal decision on them are briefly summarised in the Minister's written submissions filed on 15 July 2008. I adopt as background for the purposes of this judgment with any necessary amendments, paragraphs 2 through to 5 of those submissions:
The written claims of the applicant, a citizen of Thailand, were contained in a typed statement accompanying her protection visa application: court book “CB” 26-27. The applicant claimed to fear harm from her husband who was a “drug lord” and who constantly beat and sexually abused her. She was not able to seek protection from the police because they were friends with her husband. Her step-mother had also abused her when she was young and forced her to do all the housework. The applicant claimed she could not return to Thailand as she feared she would be harassed, raped, or killed by her step mother and husband.
The Tribunal rejected the applicant’s claims on the basis of adverse credibility findings. It found that the applicant was not an impressive witness and that her evidence was generally implausible and gave “some appearance of improvisation”: CB 63.8.
On the basis of its adverse credibility findings, the Tribunal rejected the applicant’s claims that she had a husband who wished to harm her, or a step-mother who wished to harm her: CB 63.3.
Accordingly, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason upon her return to Thailand: CB 64.4.
The applicant relies upon her show cause application filed on 16 April 2008. The grounds in that application are in a typewritten document attached to the application in the following terms:
1. The Tribunal decision is unreasonable, irrational and illogical and not open to it to make such decision. It failed to exercise its jurisdiction and wrongly exercised its jurisdiction and made jurisdictional error.
Particulars
a) The Tribunal not satisfied the credibility of the applicant because (1) the doubt about who prepared the Protection visa application and (2) the inability to write in English some of words appearing in manuscript in the application and (3) some appearance of improvisation. Applicant gave explanation about some once assisted her application. The Tribunal has gone outside to jurisdiction to conclude for the reasons it not satisfied. It ignored in a way to assess the claim. The Tribunal did not act what is appropriate that is to examine her case in a reasonable way where it satisfied the claims in a prudent way. The Tribunal just closed the door as it does not accept the claim. It did not provide reasonable and rational and logical reason why it did not satisfied other than the reasons given above. The Tribunal did not give realistic consideration to the applicant’s problems. At least it has duty to make inquiries about her actual claims such as who was her husband and make inquiries with Thai authorities about him and why she fear to go back to her country.
2. The Tribunal committed jurisdictional error by failing to deal with an integer of the claim; and failed to consider the claims and statutorily failed to take into consideration.
Particulars
a) Among other claims the applicant made that “her husband always does some suspicious cruelty when he (sex) sleep with me. He tight my neck, pull my hair and slap on my face during the sleep always. He said that he like to cause pain on me during the sleep. One night he attempted to kill me by the log of wood (used for locking the door), and I shouted for help. Luckily the next door people saved me”. The Tribunal did not ask any thing about these claims in its interview and did not make any findings in its conclusion.
3. The Tribunal made a jurisdictional error of law by failing to act in accordance with substantial justice and merits of the case and failing make finding of the Convention ground of Particular Social Group.
Particulars
a) The material presented by the applicant made it necessary the Tribunal to consider and determine the issue.
b) The Tribunal did not consider whether the applicant would have a well founded fear of persecution on the basis of the Convention reasons of Particular Social Group in light of her claim and independent country information referred by the Delegate of the Minister.
c) An applicant who makes a claim to be a refugee on the basis of persecution for being a woman on the basis of Particular Social Group is entitle dot have that claim dealt with. Failure to deal with that claim of Convention ground involved jurisdictional error.
That document has obviously been prepared by someone with some understanding of migration law. The applicant confirmed from the bar table that she had received advice and assistance in the preparation of the application. The application is supported by a short affidavit by the applicant which I have received. I also have before me as evidence the court book filed on 13 May 2008.
I reject the second and third grounds in the application. In my view, the assertion in the second ground relates to an item or items of evidence rather than an element or integer of the applicant's claims. The Tribunal was aware of the applicant's assertions that he husband sexually and physically abused her. Those allegations are reproduced in the Tribunal decision. The applicant's claim was that she was afraid to return to Thailand because of a fear of harm from her husband. The applicant was not believed. It was unnecessary for the Tribunal to consider in its reasoning process every item of evidence that related to the essential claim which was rejected.
I accept the Minister's submission that the specific claims set out in particulars for ground 2 in the application were subsumed by the Tribunal's finding that it did not accept that she faced harm at the hands of her husband: WAEE v Minister for Immigration [2003] FCAFC 184 at [47].
The third ground is an assertion of a failure by the Tribunal to consider a relevant nexus between her claims and refugee's convention. If the applicant's claims had been believed by the Tribunal it may well have been necessary for the Tribunal to consider the nexus of those claims to the convention by reference to a particular social group. However, the applicant was not believed. Because the applicant was not believed it was not necessary for the Tribunal to consider what the relevant convention nexus with her claims might have been.
The first ground in the application is an allegation of unreasonableness, irrationality, and illogicality. The particulars relate to the Tribunal's findings resulting from the applicant's inability to write certain words in English which appeared in her protection visa application. The Tribunal deals with the circumstances in its decision reproduced on page 61 of the court book. The presiding member says:
I asked the Applicant how she had prepared the statement attached to her protection visa application. She said she asked the student what should be included.
The reference to “the student” is a reference to a male Thai student who the applicant had already told the Tribunal had assisted her. He helped by translating the statement for her. The presiding member says he asked how it had been prepared for her, given that it seemed to have been produced on a computer. She said another student, a female from Thailand, helped her. This is person's nickname was Um. She did not know her full name because Um did not want to get involved with her. The presiding member noted that Um had, in fact, become involved with her since she had helped produce the statement. She said she had no one else to help her. The presiding member put to the applicant that the statement seemed to have been written by someone whose native language was English rather than Thai. She said that she had explained her claims in Thai and that these were translated into English by Um. She said she met Um in a park near a railway station, which she often visited. The presiding member asked whereabouts Um produced the statement. The applicant said she did not know and that she picked it up when, by arrangement, she had met Um once more. The applicant confirmed her claim that she completed the protection visa application herself and that the handwriting in it was hers.
The presiding member invited the applicant to write out in English the words "Thailand", "father", "mother", and "passport", all of which appeared in manuscript in the form. Of these, the applicant was only able to write "Thailand". The presiding member put to the applicant that he did not believe she had written out the form and she said she did not know how to explain it.
This was the first issue addressed by the presiding member in his reasons to explain his lack of satisfaction with the credibility of the applicant's account and his lack of satisfaction that she does not, in fact, face harm in Thailand at the hands of her husband or anyone else. The presiding member said at CB 63:
The Applicant did not prove to be an impressive witness at the hearing. Having heard her explanation as to how she came to prepare her protection visa application and the attached statement I am not satisfied that any reliance can be placed on it. Her inability to write in English some of the words appearing in manuscript in the application form might, just, be explained if the form was dictated to her by another person. However, her evidence on this issue was generally implausible and gave some appearance of improvisation. I do not accept it.
To my mind, it is a harsh and artificial approach to base an adverse credibility finding on protection visa claims upon the fact that applicants are assisted in preparing documents. It is notorious that very large numbers of protection visa applicants receive various forms of assistance in producing applications, including applications for this Court. Indeed, this applicant acknowledged that she had been assisted in preparing her show cause application to this Court. Applicants are assisted by persons who they commonly describe as “friends” but who may well be providing commercial services in the nature of migration assistance. Such persons often charge for their services and may not be registered under the Migration Act 1958 (Cth). In such circumstances, such persons place themselves at risk of criminal prosecution. It is hardly surprising that large numbers of applicants are reluctant to reveal to persons in authority precisely what role those persons have played.
It does not logically follow that what has been written in a form is false because it has been written by some person other than the applicant. It does not logically follow that an applicant is to be wholly disbelieved because he or she seeks to protect the role played by an unregistered migration agent. The Tribunal needs to be cautious not to take too harsh an approach to this particular issue given the nature of the industry that has developed around protection visa applications. Kirby J in Minister for Immigration v SGLB [2004] 207 ALR 12 at [73] point 7 emphasised the need for a generous approach to the assessment of the credibility of protection visa applicants and his words should be borne in mind:
Remembering the purpose of credibility: Credibility is often seen as the crucial issue in Tribunal determinations of refugee status. The references in the Refugees Convention to the existence of "fear", and to the grounds of that emotion, necessarily imply that those deciding refugee claims will have to make highly personal evaluations of the subjective feelings and motivations of applicants. As I said in Minister for Immigration and Multicultural Affairs v Rajamanikkam, "[m]any, perhaps most, claims to refugee status involve examination of the truthfulness of the factual assertions of the applicant. Many turn on the assessment of credibility". There was some suggestion during the hearing of this appeal that inconsistent statements by asylum seekers might suggest fabrication of evidence, and might justifiably lead to negative conclusions as to credibility. While such a conclusion is sometimes justified, refugee cases involve special considerations where credibility is an issue. There is no necessary correlation between inconsistency and credibility in such cases. Many factors may explain why applicants present with the appearance of poor credibility. These include: mistrust of authority; defects in perception and memory; cultural differences; the effects of fear; the effects of physical and psychological trauma; communication and translation deficiencies; poor experience elsewhere with governmental officials; and a belief that the interests of the applicants or their children may be advanced by saying what they believe officials want to hear. The Tribunal must be firmly told - if necessary by this Court - that the process is one for arriving at the best possible understanding of the facts in an inherently imperfect environment. It is not to punish or disadvantage vulnerable people because they have made false or inconsistent statements, or are believed to have done so.
Nevertheless, the approach taken by the presiding member was open to him. The Tribunal was entitled to test the applicant's credibility and it was apparent that she had falsely claimed that she completed the protection visa application herself. The Tribunal was entitled to use that falsity to support its more general adverse credibility findings. The fact that many would have taken a more generous approach does not alter that conclusion.
Accordingly, I reject the first ground of review. On my own reading of the material, I can see no jurisdictional error in the Tribunal decision or its process. I conclude that the decision is a privative clause decision and it follows that the application must be dismissed. I will so order.
Costs should follow the event in this case. The Minister seeks costs fixed in the amount of $3,200. The applicant claims impecuniosity, but as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order. I am satisfied that costs of not less than $3,200 have been properly and reasonably incurred on behalf of the Minister when assessed on a party and party basis. I will order that the applicant pay the Minister's costs and disbursements of and incidental the application fixed in that amount.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 25 July 2008
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