SZMXD & Anor v Minister for Immigration & Anor
[2009] FMCA 365
•6 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMXD & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 365 |
| MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – citizen of Brazil claiming fear of persecution for the reason of particular social group – state protection – domestic violence – whether Tribunal failed to ask itself whether laws introduced in relation to domestic violence in Brazil were effective in providing protection to members of particular social groups. PRACTICE & PROCEDURE – Litigation guardian – second applicant is a minor – first applicant is an adult who has no interest in the proceeding adverse to the interest of the second applicant. |
| Migration Act 1958 (Cth), ss.36, 424AA, 476 Federal Magistrates Court Rules 2001, rr.11.08, 11.10, 11.11 |
| Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387; [2004] HCA 25 |
| First Applicant: | SZMXD |
| Second Applicant: | SZMXE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2862 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 25 March 2009 |
| Date of Last Submission: | 25 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 6 May 2009 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Selliah (appeared pro bono) |
| Solicitors for the Applicant: | Davidson James & Associates |
| Counsel for the Respondents: | Mr Johnson |
| Solicitors for the Respondents: | DLA Phillips Fox (Ms Hooper) |
ORDERS
The application is dismissed.
The First Applicant is to pay the First Respondent’s costs fixed in the sum of $7,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2862 of 2008
| SZMXD |
First Applicant
| SZMXE |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The two applicants in this case are a mother and her son. They are from Brazil. The first applicant is the mother, who is a Part C applicant. She has her own claims to be a refugee. The second applicant, the son, is a Part D applicant. He has no refugee claims of his own and has applied for a visa as a member of his mother’s family unit.
The second applicant was born on 11th August 1996. As he is a minor, he needs a litigation guardian (Rule 11.08). As he is a Part D applicant, claiming as a member of his mother’s family unit and has no refugee claim of his own, I consider that his mother, the first applicant, is a proper person to be appointed his litigation guardian. She was born on 4th November 1978 and is therefore an adult. She has no interest in the proceeding adverse to the interest of her son (Rule 11.10).
The application seeks judicial review of a decision of the Refugee Review Tribunal that was handed down on 7th October 2008, affirming the decisions of a delegate of the Minister not to grant the applicants Protection (Class XA) visas. The applicants ask the Court to make orders:
a)in the nature of certiorari, quashing the decision of the second respondent, the Tribunal; and
b)in the nature of mandamus, remitting the applicants’ applications to the Tribunal to be determined according to law.
The application refers to one ground of review:
The Tribunal made a jurisdictional error in failing to consider whether the (first) applicant, as a woman of Indian ethnicity who had been assaulted, would be able to avail herself of effective State Protection. The Tribunal did not turn its mind to the issue of whether laws of general application were applied in a discriminatory way. Further particulars are to be provided.
The applicant’s Outline of Submissions foreshadowed an amended application, but this never eventuated. The submission referred to a proposed additional ground of review:
The Tribunal failed to consider a relevant consideration in failing to apply the gender guidelines.
That additional ground was never argued.
Background
The applicants arrived in Australia on 25th November 2007. They applied for Protection (Class XA) visas just over four months later, on 28th March 2008. Their migration agent, Mr Selliah, who is also a legal practitioner, submitted an application for each of them. In his covering letter he stated:
We respectfully submit that the applicant is a Brasilian native Indian woman who was persecuted and fears for persecution for the Convention reason of particular social group if she goes back to brazil with her son; and she has no male protection.
The applicant fears serious harm to her life and liberty particularly torture, domestic violence and death by her husband. The authorities in Brazil are either unable or unwilling to protect the applicant.[1]
[1] See Court Book page 1
The first applicant attended an interview with a Departmental officer on 23rd May 2008.
Later, a delegate of the Minister refused the application for a protection visa on 4th June 2008. The delegate considered whether the first applicant did in fact belong to a particular social group, referring to the decision in Minister for Immigration and Multicultural Affairs v Khawar[2], and expressed doubt that the first applicant could be regarded as being a member of such a group. The delegate stated:
Even accepting that her great grandmother is an indigenous Brazilian, the applicant has not claimed to have ever been subjected to any discrimination or harm for the reason of her membership of such a group.[3]
[2] (2002) 210 CLR 1
[3] Court Book page 78
The delegate also considered country information about violence against women in Brazil, referring to the establishment of special police stations for women, called Delegacias de Mulher, dedicated to dealing with violence against women.
The delegate was not satisfied that the that the applicant had a well-founded fear of persecution on the basis of her membership of a group divorced women subjected to domestic violence by their ex-husbands or a particular social group in any other combination. The delegate conceded that domestic violence is a serious problem in Brazil and stated:
I accept that the applicant was in abusive relationship. I accept that she was subject to domestic violence, including instances of physical beatings, and ongoing emotional and sexual abuse. I find that this treatment was clearly stressful and unacceptable.[4]
[4] Court book 79
The delegate went on to state that country information indicated that the authorities in Brazil would not decline to assist the applicant if she were to face further harassment from her ex-husband. The delegate further found that it was not unreasonable for the applicant to relocate to another city in Brazil if she did not wish to return to her home.[5]
[5] Court Book 80
After the refusal of their application for protection visas, the applicants applied to the Refugee Review Tribunal for review of the delegate’s decision. The Tribunal received the application for review on 24th June 2008. The applicants nominated their migration agent, Mr Selliah, as their authorised recipient for correspondence.
Application to the Refugee Review Tribunal
The Tribunal wrote to the applicants on 10th July 2008, inviting them to attend a hearing which was scheduled to take place on 26th August 2008[6].
[6] Court Book 97
The applicants’ agent, Mr Selliah, forwarded a 9 page written submission to the Tribunal on 25th August 2008, setting out the applicants’ case in detail. In that submission, Mr Selliah noted that the first applicant has a brother and sister who live in Australia and who were willing to help her.[7]
[7] Court Book 103
Both of the applicants attended the Tribunal hearing on 26th August, as did Mr Selliah and the first applicant’s sister. The first applicant gave evidence with the assistance of a Portuguese interpreter. The Tribunal Hearing Record shows that the interpreter’s accreditation was “NAATI Level 2”.[8]
[8] Court Book 107
The applicants produced their Brazilian passports to the Tribunal.
The Tribunal invited the first applicant to comment on or respond to some information that may have led the Tribunal to find against her claim. The first applicant indicated that she would like to respond in writing. The Tribunal agreed that a written response would be provided before 12th September 2008.[9] It appears that the Tribunal intended to comply with the requirements of s 424AA of the Migration Act.
[9] Court Book 158
The Tribunal heard an oral submission from the applicants’ migration agent to the effect that the first applicant had suffered serious and systematic domestic violence that had caused her psychological and emotional harm.
The applicants’ migration agent forwarded a written post-hearing submission to the Tribunal on 15th September 2008.
The Tribunal handed down its decision on 7th October 2008, affirming the decision not to grant the applicants Protection (Class XA) visas.
The Refugee Review Tribunal Decision
In its decision, the Tribunal set out, under the heading Claims and Evidence, a detailed summary of the matters it considered. The material is:
a)The first applicant’s signed statement submitted with the application for a protection visa;
b)The migration agent’s covering submission;
c)The delegate’s decision record;
d)The submission by the applicants’ migration agent dated 25th August 2008;
e)A summary of the first applicant’s evidence at the Tribunal hearing;
f)The post-hearing submission by the applicants’ migration agent submitted on 15th September 2008; and
g)Independent country information on domestic violence in Brazil, measures adopted to combat domestic violence, and indigenous people in Brazil.[10]
[10] Court Book 160 - 166
The Tribunal’s Findings and Reasons are set out on pages 166 to 173. The Tribunal accepted that the applicants are citizens of Brazil, based on their Brazilian passports.
The Tribunal stated that the first applicant claimed to fear that if she returned to Brazil she would be seriously harmed and may be killed by her ex-husband.
However, the Tribunal was not satisfied that the applicant would face a real chance of serious harm for a Convention reason if she were to return to Brazil. The Tribunal set out its findings and reasons under these headings:
·Harm suffered by the Applicant
·Motivation of the Applicant’s ex-husband
·State Protection
·Discrimination because of the applicant’s ethnicity
·Catholic religion
The Tribunal doubted the accuracy of some of the applicant’s claims to have suffered harm at the hands of her ex-husband, noting that there was no eye witness evidence or any medical evidence. However, the Tribunal stated:
I note, however, that the applicant’s account at the hearing of the harm she claims to have suffered agreed generally with her written claims and with the evidence she gave at her Departmental interview. On this basis I am prepared to give her the benefit of the doubt to the extent of accepting that she suffered domestic violence at the hands of her spouse from some time after the birth of her son up to the time of her divorce in 2002, and that the domestic violence may well have been a factor in the divorce. I am also prepared to accept that the Applicant may well have been harassed and threatened in some way by her ex-husband in the period between her divorce and the time she left Brazil, although I am not satisfied that she can have suffered severe physical and sexual violence as she claims was the case.[11]
[11] Court Book 167 at [78]
The Tribunal considered the first applicant’s ex-husband’s motivation for harming her and was not satisfied that it arose from her ethnicity.
It considered other possible motivations relating to the applicant’s membership of one or more particular social groups in Brazil, including:
·Women
·Married women
·Indian origin native married women
·Part-Indian origin women
·Divorced women
·Divorced women of part Indian origin
The Tribunal stated:
I accept that such particular social groups may be said to exist in Brazil in the sense that all their members might share characteristics or attributes distinguishing the group from Brazilian society at large which are not a shared fear of persecution. I also accept that in her particular circumstances the Applicant might reasonably be seen as belonging to one or more of the particular social groups consisting of ‘women’, ‘part-Indian origin women’, ‘divorced women’ and ‘divorced women of part-Indian origin’. Her role as a single parent could add further permutations to these possibilities.[12]
[12] Court Book 169 at [83]
The Tribunal was not satisfied that the first applicant’s ex-husband was motivated to inflict harm on her by her membership of those or any other social groups. It found:
No other Convention-related grounds for the ex-husband’s actions have been suggested and none is evident on the face of the information before the Tribunal. I am not satisfied, on the basis of this information, that he was motivated by any Convention-related reason to harm her.[13]
[13] Court Book 169 at [85]
The Tribunal then considered the availability of effective state protection. It conceded that there were various difficulties in implementing some of the newer developments to assist women who were victims of domestic violence. It then made this finding:
However I am not satisfied that there is anything in the information before the Tribunal to indicate that the Brazilian authorities would be unwilling to provide protection for the Applicant if she should request it, or that in the City of Sao Paulo where she lives they would be unable to do so.[14]
[14] Court Book 170 at [89]
The Tribunal considered the question of discrimination because of the first applicant’s ethnicity. Whilst it conceded that she may have experienced some degree of discrimination in the past because of her ethnicity, the Tribunal was not satisfied that the applicant had ever suffered serious harm amounting to persecution because of her ethnicity.
The Tribunal then considered whether the first applicant had suffered, or would suffer, serious harm because of her Catholic religion if she were to return to Brazil.
The Tribunal was not satisfied that the harm suffered by the first applicant at the hands of her ex-husband was motivated by her part-Indian ethnicity, her religion, her membership of a particular social group or any other Convention reason. The Tribunal was not satisfied that she would be denied protection by the Brazilian authorities for any reason. Further, the Tribunal was not satisfied that the first applicant had suffered serious harm amounting to persecution because of discrimination arising from her part-Indian ethnicity or that she would face such harm in the future, for that or any other Conventio reason.
The Tribunal was not satisfied that the first applicant had a well-founded fear of persecution for a Convention reason should she return to Brazil.
The Tribunal found that the first applicant did not satisfy the criterion in s 36(2)(a) for a protection visa. It noted that the second applicant, the son, had applied on the basis of his membership of the first applicant’s family. As she did not satisfy the criterion in s 36(2)(a), it followed that he could not satisfy the criterion in s 36(2)(b) for a protection visa.
Application for Judicial Review
The applicants were represented at the hearing by Mr Selliah, who is a solicitor as well as a migration agent. He appeared pro bono, which is to his credit, as he explained that the applicants did not have the funds to brief counsel.
The ground on which the applicant relies is that the Tribunal made a jurisdictional error by failing to consider that the applicant, as a woman of Indian ethnicity who had been assaulted, would be able to avail herself of effective State protection. The Tribunal did not turn its mind to the issue of whether laws of general application were applied in a discriminatory way.
Mr Selliah submitted that the Tribunal, having accepted that the applicant was a member of a particular social groups (identified at paragraph 83 of the Tribunal decision[15]), that her Indian appearance was perceivable by Brazilians and that the authorities still faced difficulties in dealing with domestic violence[16], failed to ask whether such social groups were treated differently by the police in dealing with domestic violence.
[15] Court Book 169
[16] Court Book 170 at [89]
This argument was based on the principle established in Minister for Immigration and Multicultural Affairs v Khawar[17]that where there is fear of harm from private citizens, persecution may still exist if the State authorities nevertheless tolerate or condone such harm in a discriminatory manner.
[17] supra
Mr Selliah submitted that whilst the Tribunal did address the issue of state protection, it failed to ask whether the laws that had been introduced in relation to domestic violence and the police response in implementing those laws had been effective in providing protection to members of those social groups referred to, including part-Indian origin women.
The Tribunal had found that the applicant’s Indian ethnicity arose through her great grandmother and had lived all her life in the city of Sao Paulo. The Tribunal was not satisfied that she could reasonably have been seen to live in a marginalized community or part of the Indian minority in Brazil. Mr Selliah submitted that this finding did not relieve the Tribunal of the task of examining whether women in those social groups were afforded the same protection as other women.
Mr Selliah submitted that the Tribunal did not examine whether there was any distinction between the police treatment or State protection afforded to married or divorced woman, or part-Indian women as opposed to Brazilian women. In failing to address whether effective State protection was available in respect of each of the social groups that it considered applied to the applicant, the Tribunal failed to complete its task of assessing whether this particular applicant was able to avail herself of the protection of the State.
This failure, he submitted, was a jurisdictional error.
The First Respondent’s submissions
Counsel for the first respondent Minister, Mr Johnson, submitted that the Tribunal did consider whether the Brazilian authorities would be able and willing to protect the applicant. The Tribunal specifically referred to the applicant’s ethnicity in its consideration of whether the Brazilian authorities would be willing and able to protect her, in particular at paragraphs [86], [93], [89], [98] and [94] of the Tribunal decision.
The fact that the Tribunal did not accept that the applicant’s ethnicity, or the fact that she was a sufferer of violence from her ex-husband, would lead to a denial of State protection does not mean that those propositions were not considered.
It was also submitted that the further allegation in the application that the Tribunal did not consider whether laws of general application would be applied in a discriminatory fashion was no more than a repeat of the same allegation. The Tribunal did not appear to have accepted that the applicant would suffer in the future any harm so serious as to amount to persecution, much less for a Convention reason. It also found that if the applicant did face such harm in the future the Brazilian authorities would be able and willing to protect her.
Counsel for the Minister referred to the decision of the High Court in Applicant S v Minister for Immigration and Multicultural Affairs[18] at [42]-[43] per Gleeson CJ, Gummow and Kirby J. The implementation or enforcement of a law of general application, involving serious harm, can give rise to an entitlement to protection if it is done in a discriminatory manner (the discrimination being based on a Conventio reason) and the discrimination is not “appropriate and adapted to achieve some legitimate object of the country concerned”. In this case, however, it is submitted that the applicant’s former husband was acting under a law of general application.
[18] (2004) 217 CLR 387; [2004] HCA 25
Conclusions
In Applicant S v Minister for Immigration and Multicultural Affairs,[19] Gleeson CJ, Gummow and Kirby JJ held:
A law of general implementation is capable of being implemented or enforced in a discriminatory manner.[20]
[19] supra
[20] [2004] CLR 217 at [42]
Their Honours went on to hold at [43]:
The criteria for the determination of whether a law or policy that results in discriminatory treatment actually amounts to persecution were articulated by McHugh J in Applicant A.[21]His Honour said that the question of whether the discriminatory treatment of persons of a particular race, religion, nationality or political persuasion or who are members of a particular social group constitutes persecution for that reason ultimately depends on whether that treatment is “appropriate and adapted to achieving some legitimate object of the country [concerned]”[22]…As a matter of law to be applied in Australia, they are to be taken as settled.
[21] Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
[22] Applicant A (1997) 190 CLR 225 at 258
In the case under review, there was nothing in the material before the Tribunal to show that any distinction was made between the treatment by the police of married or divorced women, or part-Indian women as opposed to Brazilian women, in matters relating to the implementation of the laws against domestic violence. There was no obligation on the Tribunal to conduct its own inquiries on that subject.
In my view the Tribunal did consider the question of whether the first applicant, as a woman of part-Indian ethnicity, would be able to access effective State protection. The Tribunal considered the first applicant’s ethnicity and her membership of various social groups. It concluded that the first applicant’s husband was not inflicting harm upon her for any Convention reason and it was satisfied that the first applicant would be able to access state protection.
No jurisdictional error has been made out and the Tribunal decision is a privative clause decision (s 474(2)). As a privative clause decision, it is final and conclusive and not subject to orders in the nature of certiorari or mandamus (s 474(1)).
It follows that the application must be dismissed.
Compassionate Issues
It is not for this court to decide, but the facts of this matter indicate that the first applicant has some compassionate issues which may be worth considering. If the applicant is not successful in going through the judicial process, she may wish to discuss with her migration adviser the feasibility of making an application to the Minister for Immigration and Citizenship for the exercise of the Minister’s discretion under s 417 of the Migration Act.
It hardly needs to be added that the power under that section is entirely a matter for the Minister, if the Minister thinks that it is in the public interest to exercise that power.
The application to this Court will be dismissed.
The question of costs will now be considered, noting that the second applicant is a minor who has played no independent part in these proceedings at all.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 28 April 2009
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