SZNRP v Minister for Immigration - [2009] FMCA 1120

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNRP v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1120

MIGRATION – Review of RRT decision – applicant a citizen of Lebanon – whether Tribunal considered likelihood of physical harm short of death – damage to reputation and effect on work prospects also considered where claim not raised before the Tribunal – where applicant alleged that Tribunal failed to apply real chance test and made illogical findings.

Migration Act 1958, s.91R

VWST v Minister for Immigration [2004] FCAFC 286
VBAS v Minister for Immigration [2005] FCA 212
VBAO v Minister for Immigration [2006] HCA 60
SBBA v Minister for Immigration [2003] FCAFC 90

Applicant:

SZNRP

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1463 of 2009

Judgment of:

Raphael FM

Hearing date:

26 October 2009

Date of Last Submission:

26 October 2009

Delivered at:

Sydney

Delivered on:

26 October 2009

REPRESENTATION

For the Applicant:

In person

Counsel for the Respondent:

Ms L Clegg

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1463 of 2009

SZNRP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Lebanon who arrived in Australia on 9 August 2006 as the wife of an Australian citizen. On 2 December 2006 her husband died. The applicant has remained in Australia and on 7 November 2008, for the reasons which will be detailed hereunder, the applicant applied for a protection (Class XA) visa. The delegate of the Minister refused to grant a protection visa on 5 February 2009 and the applicant applied for review of that decision on 20 February 2009. The applicant attended an interview with the Tribunal and on 14 May 2009 the Tribunal determined to affirm the decision under review.
The convention ground upon which the applicant claimed to be a person to whom Australia owed protection obligations was her membership of the social group, either of “women in Lebanon” or “widows in Lebanon”. The applicant told that she had married her husband in Lebanon where she had been a mature woman who had obtained a university degree and was employed as a teacher. Her husband had been married before and had a number of children. Most of his family remained in Lebanon. The applicant and her husband did not immediately return to Australia after their marriage. The applicant remained in Lebanon for a further period to see out the end of her teaching contract.
After her husband died, the applicant, who had no family of her own in Australia, came under the control of her husband’s family which immediately required her to keep house for a period of four months and 10 days in accordance with the requirements of Sharia law. She was required to do this with her husband’s niece with whom she later fell out and went to live in a women’s refuge where she appears to have been for a considerable time. The applicant became involved in legal proceedings with her husband’s family over the right to his home in Australia and to his superannuation. The husband also owned a house or property in Lebanon. Both the applicant and her husband came from an area of Lebanon near Tripoli, which she claimed was a centre for conservative Muslims whereas she was, herself, more liberal.
The applicant told the Tribunal that she had received, through her husband’s niece, threats to her life from her husband’s family in Lebanon should she make any claim to her husband’s property over there. The family in Lebanon threatened her that they would blacken her reputation should she return.
The applicant told the Tribunal that life was very difficult for widows in Lebanon and would be particularly difficult for her if she returned because she had lived for three years on her own in Australia and people would put rumours about concerning her morals. She said that widows were considered to be a bad omen amongst conservative Muslims and she would be effectively confined to her parents’ home where she would be treated like a poor relation. The applicant told the Tribunal that she was concerned that her husband’s family members in Lebanon were claiming that she had dishonoured them by her activities in Australia since her husband’s death, in particular her speaking to men, and she feared the possibility of an honour killing.
The Tribunal accepted the applicant’s evidence insofar as it consisted of a factual recitation of her history. It accepted that she had been treated poorly by her deceased husband’s relatives in Australia:
“Who have harassed and humiliated her by forcing her to leave the marital home and enforcing on her traditional customs such as a widow’s confinement to the home after her husband’s death. It accepts that she has on occasion and for a short period been sexually harassed by a relative of her husband. The Tribunal accepts that her husband’s family in Lebanon have made threats to her, saying she will be harmed if she exercises her rights in relation to her husband’s property there.” [CB 112]
But the Tribunal concluded that it could not be satisfied that she would suffer serious harm within the meaning of s.91R of the Migration Act 1958 (the “Act”) should she return:
“The Tribunal is not satisfied on the evidence before it that any attempt on her life by her husband’s relatives in Lebanon is other than a remote possibility. The threats made to the applicant appear to have been conveyed to her through a family member in Australia, and there is no evidence before the Tribunal to the effect that the husband’s family in Lebanon are criminals or have a history of violence.” [CB 112]
The Tribunal did not accept that the husband’s family would succeed in damaging the applicant’s reputation:
Even if they were to succeed the Tribunal finds that damage to the applicant’s reputation is not sufficiently serious, without further harm, to constitute persecution in a Convention sense. [CB 113]
The Tribunal rejected the applicant’s claim that she was vulnerable to being the victim of an honour crime because it accepted her evidence that prior to marrying she had not been guilty of adultery or any other sexual transgression and she did not believe that the husband’s family would be able to impugn her reputation to the extent that she would be a victim of this type of offence. The Tribunal did not consider that the applicant would be in serious risk of harm from Muslim fanatics or fundamentalists in Lebanon, even though she was living in an area which was a centre for such people, just because she had been living for three years on her own in Australia.
On 24 August 2009 the applicant filed an amended application with this court seeking review of the Tribunal’s decision. There are four grounds listed. The first ground is that:
“The Tribunal failed to consider that the applicant’s late husband’s relatives in Lebanon might seek to physically harm her, short of an attempt to kill her.”
I am unable to be satisfied that the Tribunal failed to give consideration to this possibility. Reading the Tribunal’s decision as a whole it seems to me that it gave consideration to the possibilities of her being harmed by the husband’s relatives in Lebanon. Having made its decision concerning the threats to her life, on the basis that her husband’s family in Lebanon were not known to be criminals or have a history of violence, I think it is reasonable to infer that the Tribunal took this into account in considering whether or not there was any likelihood of physical harm short of death. The Tribunal noted the applicant’s claim that the family had made threats to her, saying that she would be harmed, which would include physical violence short of death.
The second ground raised by the applicant was that:
“The finding that any attempt on the applicant’s life by her late husband’s relatives in Lebanon was a remote possibility was illogical and irrational.”
The applicant pointed out that the Tribunal had accepted that the husband’s relatives had made threats of harm to her and that they would fight for her late husband’s estate “with the means at their disposal”. In VWST v Minister for Immigration [2004] FCAFC 286 the Full Bench opined that [18]:
“We are not convinced that the analysis in NACB is erroneous: see Transurban City Link v Allan (1999) 95 FCR 553 at [26] to [31]. Accordingly we agree that the current state of the law is that want of logic in the reasons of the RRT is not an available ground of review.”
But I do not think the finding is, actually, illogical. It seems to me that the Tribunal was indicating that “any means at the family’s disposal” would be means that fell short of violence.
The third ground was that:
“The Tribunal took into account and in a relevant consideration when considering the real chance that the applicant’s late husband’s relatives in Lebanon might attempt to take her life.”
This claim is particularised by making reference to the fact that the Tribunal took into account that there was no evidence that the husband’s relatives in Lebanon were criminals or had a history of violence and that this finding was itself difficult to comprehend when the Tribunal had already made a finding that they would fight for the late husband’s estate with the means at their disposal. There was no evidence of the criminality of the husband’s relations and, whilst it is an inference that not everyone might draw, it seems to be an inference that the Tribunal could have drawn from the case before it that this meant that it was unlikely that the relatives would do the applicant physical harm. Thus, given the breadth of the Tribunal’s discretion in this matter, I do not think that the finding amounts to a jurisdictional error.
The fourth claim is that:
“The Tribunal failed to apply the real chance of persecution test when considering whether the applicant’s late husband’s relatives in Lebanon might succeed in damaging her reputation.”
It is accepted that the real chance test is only to be applied where the Tribunal is in some doubt as to whether or not a particular matter might be grounds for finding a well-founded fear. My reading of the Tribunal’s decision is that it was firm in its view that:
“ [because] the applicant appears to have led a blameless life in Lebanon for some 37 years, and to be a woman of some standing in her community because of her education and her profession as a teacher.” [CB ]
the husband’s family would not succeed in damaging her reputation. Given the firmness of this finding there was no need, in my view, to apply the real chance test, especially as the Tribunal did, in a way, do that by saying:
“Even if they were to succeed, the Tribunal finds that damage to the applicant’s reputation is not sufficiently serious, without further harm, to constitute persecution in a Convention sense.” [CB 113]
The applicant appeared before me today and took issue with the Tribunal’s findings. She told me that she believed that she would be in real danger in Lebanon from her husband’s family particularly if she asked for her rights to his property in Lebanon. She took issue with the fact that injuring her reputation would not represent real harm. She said that the Tribunal did not understand what a reproach to women’s honour is and what the relations could do if she went back to Lebanon and asked for her inheritance. She pointed out that the threat of harm had been made to her.
Both the Federal Court, on appeal from this court and the High Court, have considered threats of harm in the context of s.91R(2)(a). In VBAS v Minister for Immigration [2005] FCA 212 Brennan J, as she then was, said at [26]:
“Marshall J had occasion to consider a similar set of facts and a similar argument in respect of s 91R(2)(a) in Minister for Immigration and Multicultural and Indigenous Affairs v VBAO of 2002[2004] FCA 1495 (“VBAO”). In rejecting a submission that oral or written threats to a person’s life are necessarily included in s 91R(2)(a), he considered the categorisation of instances of serious harm in the subsection.”
Then said:
“This is not to deny that threats of the kind directed at the respondent (ie. oral and written threats) can never constitute serious harm, but they do not, of themselves, automatically qualify for that description.”
And at [28]:
“Whether such threats are sufficiently serious to amount to persecution within the meaning of Art 1A(2) of the Convention and serious harm within the meaning of s 91R is a question of fact and degree for the Tribunal: See Mandavi v Minister for Immigration and Multicultural Affairs[2002] FCA 70 at [13] and [25] (Carr J); Ahwazi v Minister for Immigration and Multicultural Affairs[2001] FCA 1818 at [45] (Carr J); Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260 at 268 , 271 (Hill J), which was of assistance to Conti J in the context of s 91R of the Act in NACV v Minister for Immigration and Multicultural Affairs[2002] FCA 411 at [3].”
The finding of Marshall J in VBOA which Brennan J accepted in VBAS was confirmed by the High Court in VBAO v Minister for Immigration [2006] HCA 60. At [20] Gummow J said:
“This reading of the whole of the text of s 91R(2) suggests that no less an element of comparable gravity is involved in the stipulation of a threat to the life or liberty of the person in question. More is required than a possibility which is capable of instilling a fear of danger to life or liberty.”
I am satisfied that the Tribunal considered the threat, which it accepts had been made, appropriately in accordance with the authorities by considering whether or not the threat was likely to have been carried out should the applicant return to Lebanon. It came to the conclusion that if any threats were carried out (and the only one that it considered might be was the threat to harm her reputation) then this was not sufficiently serious to bring her situation within s.91R(2).
The applicant also told me that if she should return to Lebanon and her husband’s family carry out their threats to damage her reputation she would not be able to work. This is a claim which the Tribunal did not consider but which could, possibly, fall within s.91R(2)(f) which is in the following form:
“(2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of ‘serious harm’ for the purposes of that paragraph (a) … (e)
(f) denial of capacity to earn a livelihood of any kind whether denial threatens the person’s capacity to subsist.”
The claim made by the applicant before me was not before the Tribunal. I have considered the Tribunal’s grounds and reasons and the transcript which was helpfully supplied both by the applicant and by the Minister. At [CB 105] the Tribunal refers to evidence given to the delegate at the interview:
“The applicant fears returning to Lebanon for many reasons: she comes from a very strict conservative family and they will not let her go out to work but will keep her at home because of her situation.”
This is not a situation which the applicant claims would arise because of the actions of the husband’s family but the actions of her own. And the Tribunal made a finding that:
“While she may not wish to live within the conservative environment of her extended family or submit to the social constraints of their way of life, the social restrictions described by the applicant are not, in the Tribunal’s view, sufficiently serious as to amount to persecution in a Convention sense.” [CB 112].
To the extent that the Tribunal may not have considered her inability to work within s.91R(2)(f) as a result of the husband’s family’s activity, it would seem to me that I am bound by the views of the Full Bench, Weinberg, Stone and Jacobson JJ in SBBA v Minister for Immigration [2003] FCAFC 90 where at [8] it was held:
It is well established that all substantive issues raised by the evidence before the Tribunal must be considered even if an applicant does not articulate all such claims; Sellamuthu v Minister for Immigration and Multicultural Affairs[1999] FCA 247; (1999) 90 FCR 287 at 294; and Kalala v Minister for Immigration and Multicultural Affairs[2001] FCA 1594 at [24]. It is, however, no part of the Tribunal's function
`to make good a case, which the applicant has not articulated, only because there is some evidence of elements of a claim.'
Parra v Minister for Immigration & Multicultural Affairs[2000] FCA 85 at [13].
For the reasons given above I am of the view that the applicant has failed to make out a claim that the Tribunal fell into jurisdictional error in the manner in which it reached its decision. This is, however, an unfortunate case. The Tribunal seemed to accept that the applicant had been badly treated whilst in Australia and was likely to be badly treated should she return to Lebanon, at least insofar as the mores of western society are concerned. The Tribunal was aware that the person who appeared before it was a sophisticated independent woman of strong views and I do not think that it doubted that some attempt might be made to blacken her reputation or that she might bridle under the constraints of strict adherence to Muslim tenets imposed upon her by her own family as well as by the presence of her late husband’s family.
It may well be that the Minister properly advised would consider that the applicant has a strong case for him to exercise his discretion to allow her to remain in this country on compassionate grounds. And knowing that such an application would not be considered whilst appeals are still under way, the applicant may feel that her best course of action was to approach the Minister and leave this decision to stand. However, that is entirely a matter for the applicant and she has every right to appeal.
The application is dismissed. The Applicant must pay the First Respondent’s costs which I assess in the sum of $5,000.00.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 12 November 2009