SZNSW v Minister for Immigration - [2009] FMCA 1233

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNSW v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1233

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal approached its decision making with a mind open to persuasion – whether the Refugee Review Tribunal failed to properly consider a psychological report provided by the Applicant in support of her claims.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91R(2); 91S; 474; pt.8 div.2

Applicant:

SZNSW

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1635 of 2009

Judgment of:

Emmett FM

Hearing date:

30 November 2009

Date of Last Submission:

30 November 2009

Delivered at:

Sydney

Delivered on:

11 December 2009

REPRESENTATION

Solicitors for the Applicant:

Mr M. Jones

Counsel for the Respondent:

Mr H. Bevan

Solicitors for the Respondent:

Mr B. May, Australian Government Solicitor

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1635 of 2009

SZNSW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 5 June 2009 and handed down on 9 June 2009.
The applicant claims to be a citizen of Lebanon and of Muslim faith (“the Applicant”).
The Applicant arrived in Australia on 27 March 2008 having departed legally from Beirut on a passport issued in her own name and a prospective marriage visa issued on 6 March 2008. The Applicant had previously visited Australia from 5 February 2007 to 2 March 2007 on a visitor visa.
On 4 December 2008, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 20 February 2009, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 4 March 2009, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 5 June 2009, the Tribunal affirmed decision of the Delegate not to grant a protection visa.
On 9 July 2009, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

The Applicant claimed in her protection visa application to have travelled to Australia with the intention of marrying an Australian citizen. The Applicant did not marry that Australian citizen but married another Australian citizen whom she subsequently left alleging he became physically abusive when he discovered she was not a virgin.
The Applicant claimed that she feared persecution from her family and relatives by reason of her failure to marry the first Australian citizen to whom she was engaged and her abandonment of her husband following his alleged abuse towards her. She further claimed that her decision to pierce her nose since arriving in Australia had been interpreted by her family as a rejection of her religion and culture.
The Applicant claimed that her actions had brought shame on her family. She stated that authorities in Lebanon would not intervene in honour killings and perpetrators of honour crimes often received reduced sentences or no sentence at all.

The Delegate’s decision

The Applicant provided in support of her protection visa application a psychologists report dated 14 October 2009.
On 20 February 2009, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.

The Tribunal’s review and decision

On 4 March 2009, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
The Applicant provided further documents in support of her application.
On 20 March 2009, the Tribunal wrote to the Applicant informing her that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 29 April 2009 to give oral evidence and present arguments.
On 29 April 2009, the Applicant and a witness, being the Applicant’s sister, attended the Tribunal hearing and gave evidence.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The decision of the Tribunal is accurately summarised by counsel for the First Respondent in his written submissions as follows:
“The Tribunal noted the Applicant’s experiences in Australia were relevant insofar as they impact on the way she is perceived in Lebanon (RD 94 [43]).
The Tribunal accepted the Applicant’s account of her relationship history (RD 94 [44]).
The Tribunal noted that the Applicant did not report suffering any adverse consequences of any kind at home in Lebanon following her decision to sever her relationship with her first fiancé (RD 95 [46]).
The Tribunal did not accept the Applicant’s claim that she had been beaten by her brother because the Applicant had made that claim for the first time at the hearing (RD 95 [47]).
The Tribunal accepted that the Applicant’s way of life in Lebanon and in Australia may cause her to be viewed with “some suspicion and lead her to being subject to some ostracism”. However, the Tribunal found that, unpleasant though such treatment might be, it did not constitute “serious harm” for the purposes of s 91R(2) of the Migration Act 1958 (Cth) (RD 95 [47]).
The Tribunal considered independent country information on the topic of honour killings but noted the anticipated changes to the law in this regard and also that honour killings had been condemned by religious authorities. It also considered that the Applicant’s “perceived indiscretions” fell “well short of the most commonly reported reason for honour killings, namely adultery or pre-marital sex” (RD 95 [48]).
In this regard, the Tribunal did not accept the Applicant’s claim that her former husband had spread “false rumours about her virginity”. The Tribunal doubted the Applicant’s credibility concerning this claim and in relation to the motives for her marriage. In reaching this conclusion, the Tribunal relied on the “temporal proximity” of the marriage to the on-going process of appeal against the decision to cancel the previous visa, and the short time between the trauma of the engagement with Mr Allouche and the subsequent, almost immediate, estrangement of her husband (RD 95 [49]).
In light of its findings above, the Tribunal did not accept that the Applicant is considered as having dishonoured her family (RD 95 [51]).
For these reasons, the Tribunal found that there was not a real chance that the Applicant would be persecuted for reasons of her membership of a particular social group (being Lebanese women who have dishonoured their family) now or in the reasonably foreseeable future (RD 95 [52]).
Accordingly, the Tribunal affirmed the decision under review (RD 96 [53]-[54]).”

The proceeding before this Court

The Applicant was represented before this Court by Mr Michael Jones, solicitor.
On 19 August 2009, the Applicant attended a directions hearing before me and was given leave to file and serve an amended application, any further evidence, by way of affidavit, and submissions in support.
On 17 November 2009, the Mr Jones, on behalf of the Applicant, filed submissions and a list of authorities.
At the commencement of the hearing, Mr Jones sought leave to rely on grounds which he said were incorporated in his submissions and undertook to the Court to file an amended application in accordance with those submissions within 24 hours. The First Respondent, through its counsel, Mr Bevan, consented to Mr Jones’ application. Following Mr Jones’ submissions to this Court in support of the grounds identified in his written submission, filed on 17 November 2009, Mr Jones sought to reduce those grounds to writing during Mr Bevan’s oral submissions.
Ultimately, by consent, the Applicant was given leave to rely on two grounds handwritten by Mr Jones at the hearing in a document initialled and dated by me. Mr Jones confirmed that those were the only grounds upon which the Applicant relied. Those grounds are as follows:
Ground 1
“The Tribunal failed to give reasonable consideration to the evidence relating to the country information before it, with the result that a reasonable person would have an apprehension that the Tribunal had a closed mind and was not prepared to consider the evidence in favour of the Applicant.”
Ground 2
“The Tribunal came to a conclusion about he Applicant’s credibility with regard to a specific claim that her husband had spread rumours about her virginity, and generally in respect of her claims about the persecution she would suffer, without giving any consideration to a relevant psychological report that was before it.”

Ground 1

At the heart of ground 1, is a complaint by the Applicant that the Tribunal misstated the country evidence before it indicating, that it had a closed mind and was not prepared to consider evidence in favour of the Applicant.
In support of that contention, Mr Jones referred to the following paragraph from the Tribunal’s decision record in the Findings and Reasons section:
“The Tribunal has examined available country information on the topic of honour killings and has cited some relevant sources above. Given this information the Tribunal finds that this phenomenon in Lebanon is not widespread, that the country has demonstrated a political will to make changes to the law in regard to this and the practice has been condemned by religious authorities. There are established organisations and NGOs dedicated to the stamping out of this practice. The perceived indiscretions which the applicant is seen to have committed fall well short of the most commonly reported reason for honour killings, namely adultery or pre-marital sex.”
Mr Jones submitted that there were four pieces of evidence contained in that paragraph which purported to summarise country information before it. They are as follows:
i)That honour killings in Lebanon are not widespread;
ii)That Lebanon has demonstrated a political will to make changes to the law;
iii)That honour killings have been condemned by religious authorities; and,
iv)That organisations and NGOs are dedicated to the stamping out of this practice.
In relation to (i) above, the Tribunal stated in the Claims and Evidence section of its decision record the following:
“One of the articles provided by the applicant, titled Lebanese women suffer under outdated laws and dated 12 March 2008 was produced by a group called “Arabs and Muslims Against “Honour” Crimes Lebanon. The article bemoans the treatment of women as second class citizens by Lebanese law. It also states, inter alia, “…although so-called ‘honour crimes’ are not widespread in Lebanon, as in some other Arab countries, every year a number of women are killed by male relatives under the pretext of defending family honour.””
Mr Jones conceded that the quotation cited by the Tribunal from country information before it was accurate. However, Mr Jones submitted honour killings take place every year and simply because they are “not widespread” does not undermine the existence of honour killings and the consequent risk to the Applicant.
In relation to (ii) above, the Tribunal stated the following:
“Another article from the same source dated November 1^st, 2007, titled One Honour Killing a Week in Lebanon, states that “It is estimated that there is approximately one honour killing a week in Lebanon, although there are no official figures for this and other forms of gender violence.” And also “Despite these problems, there is work being done to improve the situation in Lebanon. There is now more interest in the subject of domestic violence, with the media willing to cover cases and a number of medical students writing their thesis on battery and abuse. The Social Affairs Ministry has launched a national campaign to highlight violence against women, children and the elderly, although this is hampered by a lack of funding and an unwillingness to transgress traditional boundaries.””
Mr Jones submitted that it was a misstatement of that country evidence to suggest that honour killings had been condemned by “religious authorities”. Mr Jones said that the country information makes clear that it was only one department of the government and that the work of that department in launching a national campaign was hampered by “a lack of funding and an unwillingness to transgress traditional boundaries.” Mr Jones submitted that to summarise that information as Lebanon demonstrating a political will to make changes to the law misstated that evidence, in that, it was only one government department launching a national campaign to highlight violence against women, children and the elderly. Mr Jones submitted that because it was hampered by a lack of funding and unwillingness to address traditional boundaries, it was not correct to say that Lebanon has demonstrated a political will to make changes to the law.
In relation to (iii) above, the Tribunal stated as follows:
“An article sourced from BBC News, Ya Libnan Saturday, 13 October, 2007 titled: Shiites in Lebanon ban honour killings states:
Lebanon’s most senior Shiite Muslim cleric issued a religious edict on August 2, 2007 banning honor killings, calling the custom of murdering a female relative for sexual misconduct “a repulsive act.”
The fatwa by Grand Ayatollah Mohammed Hussein Fadlallah was a rare condemnation of the practice by a prominent cleric. Fadlallah’s office said he issued the statement in response to reports that honor killings were increasing.
“I view an honor crime as a repulsive act, condemned and prohibited by religion,” Fadlallah, the most revered religious authority for Lebanon’s 1.2 million Shiites, said in a statement.”
Mr Jones submitted that the country information made clear that it was one cleric and that such condemnation was rare and that honour killings were increasing. Mr Jones submitted that to summarise that information as a condemnation of honour killings by “religious authorities” misstated that country information.
In relation to (iv) above, the Tribunal quoted a 2008 country report on Human Rights practices for Lebanon issued by the Bureau of Democracy, Human Rights and Labor of the US Department of State on 25 February 2009. That report stated that the Lebanese Council to Resist Violence Against Women (a local Non Government Organisation), “worked actively to reduce violence against women by offering counselling and legal aid and raising awareness about domestic violence.” The report also referred to another local NGO, KAFA (Enough) Violence and Exploitation which stated that prosecutions were rare in respect of domestic violence.
In addition to the information quoted by the Tribunal Member, there was country information, dated 12 March 2008, in the form of a document, headed Arabs and Muslims Against Honour Crimes Lebanon, which referred described the work of KAFA as “a group dedicated to combating violence and exploitation of women and children.” The document also stated that, in conjunction with the Lebanese Council to Resist Violence to Women and other organisations, KAFA also undertakes advocacy work, lobbying the government to implement fair laws and policy.
Mr Jones submitted that the Tribunal’s summary and characterisation of the country information before it, discloses that the Tribunal approached its task of evaluating the Applicant’s evidence in a manner that would have caused a reasonable bystander to apprehend that the Tribunal approached its consideration of the Applicant’s evidence with a closed mind. For the reasons below, that submission is not made out.
The Tribunal’s decision record makes clear the full source of the country information to which it had regard. In the circumstances, the Tribunal’s summary of the country information is apparent on the face of the Tribunal’s decision record. It may well be that the information to which the Tribunal referred could have been characterised in other terms or summarised differently. However, a fair reading of the Tribunal’s decision record as a whole makes clear that the context in which the summaries of that information by the Tribunal were made was the Tribunal’s acceptance that honour killings occur in Lebanon in domestic situations, particularly adultery or pre-marital sex. However, the Tribunal found that the Applicant’s “indiscretions” fell well short of those reasons.
The Applicant claimed that she was at risk from her family of being killed because of the way she had lived her life in Australia. Namely, that she had not proceeded to marry her first finance, had subsequently not remained married to the man she did marry and had recently had her nose pierced. The Applicant claimed that she had been beaten by her brother in Lebanon “at some point”. The Tribunal rejected the Applicant’s claim of having been beaten by her brother in the past as the claim was made by the Applicant for the first time at the Tribunal hearing and after the Delegate’s decision.
The Tribunal also rejected the Applicant’s claim that her husband had spread false rumours about her virginity which would place her at risk of harm from her family were she to return to Lebanon. The Tribunal found that there was “temporal proximity” of the Applicant’s marriage to her ongoing process of appeal against the decision to cancel her sub-class 300 visa; that there was a “short time lapse” between what the Applicant described as the trauma of the “engagement” with her original fiancé; and, that she had left her husband two days after the marriage. These matters caused the Tribunal to have concerns about the credibility of the Applicant in relation to the Applicant’s claim of her husband spreading false rumours about her virginity.
The Tribunal accepted the Applicant’s claim that her way of life in Lebanon and in Australia may cause her to be viewed with some suspicion and lead to her being subjected to some ostracism. However, the Tribunal found that such treatment did not constitute harm of the type or severity contemplated by the Convention and by s.91R(2) of the Act.

The Tribunal recognised the existence of a particular social group of Lebanese women who have dishonoured their family as a particular social group to which the Convention may apply. However, the Tribunal did not accept that the Applicant would have been considered as having dishonoured her family.
In summary, a fair reading of the Tribunal’s decision record makes clear that the Tribunal did not accept the Applicant’s relevant claims of past persecution that her husband had spread false rumours about her virginity and of being beaten by her brother in Lebanon. The Tribunal found that other conduct in which the Applicant had engaged did not amount to conduct that would have been regarded as having dishonoured her family.
As stated above, the Tribunal gave reasons for its rejection of the Applicant’s evidence of past persecution and of her claim that her husband spread false rumours about her virginity. Those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave. Those findings are a rejection of the Applicant’s claim to be a member of a particular social group that was persecuted for a Convention-related reason.
A fair reading of the Tribunal’s decision record makes clear that it was the adverse credibility findings in respect of the Applicant that caused the Tribunal to affirm the decision under review. The country information to which it had regard, and which it accepted, may have been capable of more expansive summaries. However, the source of those summaries was quoted in the Tribunal’s decision record. In the circumstances, I am not satisfied that a reasonable bystander would apprehend that the Tribunal had approached its consideration of the Applicant’s evidence with closed mind by reason of the tribunal’s summaries and characterisations of the country information before it.
Accordingly, ground 1 is rejected.

Ground 2

Ground 2 contends that the Tribunal failed to have regard to evidence provided by the Applicant in the nature of a report from her psychologist in considering the applicant’s overall credibility.
The Applicant had provided to the Delegate a copy of a report of a psychologist, Mr George Tsironis, dated 14 October 2008, in support of her protection application visa. That report concluded that the Applicant suffered from “extreme depression”, although there was no suggestion of any abnormality of the formal content of thoughts to suggest major mental illness. The report referred to the verbal and physical abuse the Applicant claimed was inflicted on her by her husband. The report made the following conclusion:
“Moreover, this lady reports being a virgin and this in my opinion carries a lot of weight when you take her culture into consideration as to how much [the Applicant] values family and traditional values together with her honesty and her genuineness for the relationship to be successful
Finally, it is a disgrace for [the Applicant] to return to Lebanon under the conditions she arrived and will be frowned upon by family and locals and will be viewed as an outcast and her dreams of having a successful relationship will be slim as men in her country will not give her the respect.”
The Tribunal referred to the psychologist’s report in the Claims and Evidence section of its decision record where the Tribunal stated as follows:
“The applicant also provided a report from Mr George Tsironis, Psychologist and Hypnotherapist dated 14 October 2008. She had attended therapy at his consulting rooms on a monthly basis since May 2008. A recent medical report from the HSA indicates that the applicant was “not on medication” and appeared “clinically not depressed”.
A copy of the “HSA” was tendered by the First Respondent. That report was part of the medical check requirements in support of the Applicant’s application for a protection visa. There is no other reference to the HSA report in the Tribunal’s decision record. Moreover, a fair reading of the Tribunal’s decision record does not suggest that the inconsistency in the two reports, as to the existence of depression in the Applicant, was a matter that formed any part of the reason for affirming the decision under review. Certainly, the two reports were not made at the same time. The psychologist’s report was dated 14 October 2008, the HSA report was dated 16 January 2009.
In the Findings and Reasons section of its decision, the Tribunal referred to the psychologist’s report as follows:
“Given the applicant’s marriage occurred a short time after her difficulties with her former fiancé, Nazir Allouche, in fact, the report of the psychologist is dated 14 October 2008, the day after her marriage to Abdul Qadir Hijazi, the Tribunal sought confirmation form the applicant that her marriage was not entered into for the purpose of remaining in Australia. She replied in the negative.”
Mr Jones submitted that these were the only mentions in the Tribunal’s decision record of the psychologist’s report. However, that submission does not take into account the fact that the Tribunal does appear to have accepted the trauma involved in the Applicant’s engagement to her first fiancé, which is referred to in the psychologist’s report.
Ultimately, the only issue that was the reason for the Tribunal affirming the decision under review was the Tribunal’s adverse findings in respect of the Applicant’s credibility. Mr Jones submitted that, in assessing the Applicant’s credibility, the Tribunal should have had regard to the psychologist’s report.
However, that report was not capable of addressing the matters that led the Tribunal to make adverse credibility findings in respect of the Applicant’s claims. Those matters were the timeline of her conduct in Australia in relation to the trauma of the break-up of her engagement, her subsequent marriage, her estrangement two days later from her husband and the “temporal proximity of the marriage to the ongoing process of appeal against the decision to cancel her sub-class 300 visa.” Neither was there any suggestion in the psychologist’s report that the Applicant was unable to give coherent evidence. Indeed, as referred to above, the psychologist specifically found that, other than her depression, there was no suggestion of abnormality of the form or content of thought to suggest major mental illness. The Tribunal’s rejection of the Applicant’s new claim about past abuse from her brother, was based on its adverse credibility findings arising from the “temporal proximity” concerns it had, as referred to above.
Accordingly, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave. I do not accept the Applicant’s contention that the Tribunal failed to consider the psychologist’s report. A fair reading of the Tribunal’s decision makes clear that the Tribunal was mindful of the existence of the report and its contents and considered it in a meaningful way. However, ultimately, the Tribunal did not find the psychologist’s report relevant to its consideration of the Applicant’s credibility. As stated above, that finding was open to it on the evidence and material before it and for the reasons it gave.
Accordingly, ground 2 is not made out.

Conclusion

A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about her evidence and noted the Applicant’s responses. The Tribunal also identified independent country information to which it had regard. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 11 December 2009