SZOOY v Minister for Immigration
[2010] FMCA 934
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOOY v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 934 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Tribunal’s decision was affected by bias or apprehended bias – whether the Tribunal’s findings were open to it on the evidence before it – whether the Tribunal had regard to the Applicant’s supporting material – whether the Tribunal was obliged to investigate the Applicant’s allegation of sexual assault. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 65(1)(b); 91R; 474; pt.8 div.2 |
| Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 |
| Applicant: | SZOOY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1842 of 2010 |
| Judgment of: | Emmett FM |
| Hearing date: | 24 November 2010 |
| Date of Last Submission: | 24 November 2010 |
| Delivered at: | Sydney |
| Delivered on: | 2 December 2010 |
REPRESENTATION
| Applicant appeared in person assisted by a Hindi interpreter |
| Counsel for the Respondent: | Mr T. Reilly |
| Solicitors for the Respondent: | Ms K. Hooper (DLA Phillips Fox) |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1842 of 2010
| SZOOY |
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 26 July 2010 and handed down on 27 July 2010.
The Applicant claims to be a citizen of the Republic of the Fiji Islands and a member of the particular social group “women suffering domestic violence in Fiji”. She also claims to be a lesbian and to fear persecution in Fiji for that reason (“the Applicant”).
The issues in this case are whether the Tribunal’s decision was affected by bias or apprehended bias, whether the Tribunal’s findings were open to it on the evidence before it, whether the Tribunal had regard to the Applicant’s supporting material, and whether the Tribunal was obliged to investigate the Applicant’s allegation of sexual assault. These issues are considered below in the context of considering whether the Tribunal’s decision is affected by jurisdictional error.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the Applicant’s protection visa application claims and the decision of the delegate of the First Respondent (“the Delegate”) and a summary of the Tribunal’s review and decision.
Background
The Applicant arrived in Australia on 16 August 2009 having departed legally from Fiji on a passport issued in her own name and a visitor’s visa issued on 29 June 2009.
On 6 November 2009, the Applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 8 January 2010, the Delegate refused the Applicant’s application for a protection visa.
On 27 January 2010, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 26 July 2010, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 23 August 2010, 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 s.65(1)(b) mandates that 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”).
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 of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.
The Applicant’s application for a protection visa
The Applicant provided a statement in support of her protection visa application. She stated that, on 17 December 1999 she married. She said that soon after she was married her husband began hitting her and making her life miserable and also tried to kill her on a number of occasions. The Applicant stated that on 16 January 2008 she separated from her husband. The Applicant stated that after she separated she lived with her parents. She said that her husband continued to threaten her and came to her parent’s place and punched her and slapped her. She said her father called the police but that her husband left before the police arrived. She said she attended the hospital in Suva for treatment of her injuries and that the hospital gave her a certificate which she gave to police for prosecution. However, she stated that the police did not charge her husband. She stated she believed this was because the police were bribed by her husband.
The Applicant stated that she had lodged a number of complaints against her husband at Narere police station in Fiji but that police failed to take any action against him. The Applicant stated that she and her husband have a five year old daughter who lives in Fiji with her parents.
The Applicant stated that after she separated in 2008, despite several requests, her husband refused to divorce her and began again to beat and threaten to kill her. She said that when he discovered she had started working again, he came over to her parent’s place in the middle of the night and asked for money and when she refused he smashed the windows of the house and hit her. She stated that she tried moving places but that her husband always found her.
The Applicant stated that in about July 2008 she commenced a sexual relationship with a close friend [Ms X] who knew about her relationship with her husband. The Applicant stated that she spent some time with [Ms X] at [Ms X]’s house and some time at her house. She stated that when her husband came to know of this relationship “he became furious as a result his oppression became unbearable.”
The Applicant stated that her family came to know of her same sex relationship through her husband and upon discovering that she was in a lesbian relationship they cut off relations with her.
The Applicant stated that she decided to come to Australia to seek refuge for her daughter and herself because she was so scared of her husband. She stated that she has continued to be subject to domestic violence following her separation in 2008, she has no male family member to protect her except her father who is now 56 years old and that her husband beat him recently with an iron bar.
The Delegate’s decision
On 8 January 2010, the Applicant attended an interview with the Delegate.
On 8 January 2010, 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 Delegate accepted that the Applicant and her father had made complaints about her husband’s violence towards them both and that the police had responded to both the complaints. The Delegate was satisfied that the Applicant would be able to access effective assistance and protection from authorities in Fiji.
The Tribunal’s review and decision
On 28 January 2010, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
The Applicant provided further documents in support of her review application. The Applicant provided a statement saying that her husband had been approaching her lesbian lover [Ms X] in Fiji and calling her names and humiliating her. She stated that [Ms X] had told her that her husband had said that he would hire someone “to hit me in Australia” and that her husband had approached her parents to take her daughter. She stated that [Ms X] told her that her husband went often to her parent’s home and threatened them. Her statement enclosed a letter purportedly from the Fiji police detailing her complaints in respect of the domestic violence carried out by her husband and sent to her by [Ms X].
The statement from a sergeant at the Fiji police office, dated 4 January 2010, states that the sergeant is the police officer in charge of the Narare police station for the last ten years. He stated that he attended a domestic dispute in respect of the Applicant on several occasions. He said the Applicant told her that she had been assaulted and sworn at by her ex-husband’s de facto wife. He stated that she told him that she sought employment with the police force because she thought it may help her situation and as she had difficulties finding employment in Fiji. The sergeant stated that the Applicant told him she had been facing difficulties during her marriage as her husband is “a druggist and alcoholic and he always ill-treat her and also assaulted her”. He stated that her husband was charged for assault occasioning actual bodily harm in 2007.
On 19 February 2010, a Tribunal file note stated that the Applicant was phoned at the request of the Tribunal Member and told that the Tribunal Member wished to take evidence from her female lover in Fiji, [Ms X]. The Applicant was also asked to submit any documents relating to her domestic violence claims, including medical certificates, complaints lodged with the police or any other documents to support her domestic violence claims.
On 19 February 2010, 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 30 March 2010 to give oral evidence and present arguments. The Applicant sought to postpone the hearing on medical grounds and, by letter dated 8 April 2010, the Tribunal member granted the request for postponement and rescheduled the hearing for 28 May 2010. The Applicant attended the Tribunal hearing and gave evidence.
On 23 March 2010, the Applicant appointed an authorised recipient and provided the details of her migration agent to the Tribunal.
On 6 April 2010, the Tribunal wrote to the Applicant informing her that a new Tribunal Member had been assigned to complete her review.
On 24 May 2010, the Applicant’s migration agent sent the Tribunal a written submission in support of the Applicant’s review. The submission summarised the Applicant’s claims and made further submissions in relation to gender related persecution and refugees. The submission stated that [Ms X] was not responding and that the Applicant was preparing a statutory declaration. A statutory declaration was duly provided to the Tribunal on 26 May 2010. That statutory declaration stated that the Applicant had made “protracted follow ups to call [Ms X]” but that her attempts had failed. The statutory declaration provided the telephone number for [Ms X] on which the Applicant had been attempting to ring her.
The Applicant also provided to the Tribunal a letter from a consultant psychologist, Barbara Majchrowska, dated 21 May 2010. The report recited the Applicant’s claims of domestic violence and appeared to diagnose her as suffering from post-traumatic stress disorder, anxiety, depression and stress.
The Applicant’s migration agent did not attend the Tribunal hearing.
On 28 May 2010, the Applicant attended a hearing before the Tribunal. Following the hearing, the Tribunal sent to the Applicant a letter, dated 8 June 2010, giving the Applicant information that may be the reason or part of the reason for affirming the decision under review (“the s.424A Letter”). The s.424A Letter was sent in accordance with s.424A of the Act and identified the relevant information, explained its relevance and invited the Applicant to comment in writing by 2 July 2010.
On 1 July 2010, the Applicant responded to the s.424A Letter.
On 26 July 2010, the Applicant notified the Tribunal that her migration agent no longer acted on her behalf.
The Tribunal’s decision record is accurately summarised in the written submissions of counsel for the First Respondent, Mr Reilly as follows:
“4. The Tribunal found the Applicant was not credible, and that her claim to have a relationship with a woman or to be a lesbian was untrue. The Tribunal noted inter alia that no evidence from the woman concerned or other supporting evidence had been provided; that the Applicant now claimed to be unable to contact this woman; and that the Applicant was pregnant at the time of the Tribunal hearing, which the Tribunal thought was most likely because she had an ongoing relationship with a man as alleged in the “dob-in letter” received by it. Having regard to this conclusion the Tribunal also rejected the Applicant’s claim that her husband wished to harm her, noting additionally that there was also no corroboration of this claim from the Applicant’s family or others, and that the Applicant had not applied for a divorce. As a result the Tribunal found the Applicant’s claims were not well founded. See generally CB 147-149.
5. The Tribunal’s conclusion that the Applicant was not credible and her claims untrue is a finding of fact par excellence: Re MIMA; ex parte Durairajasingham (2000) 168 ALR 407 (HCA/McHugh J) at [67]. This conclusion was open to the Tribunal for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision, and there is no error of law in the Tribunal making a wrong finding of fact or engaging in unsound reasoning: see MIAC v SZNPG [2010] FCAFC 51, (2010) 115 ALD 303 at [20] and cases there cited.”
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of a Hindi interpreter.
On 7 October 2010, the Applicant attended a directions hearing before me. The Applicant confirmed that she wished to continue with the application. The Applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing.
At the directions hearing, the Applicant was referred to the Court’s Legal Advice Scheme for free legal advice. The Applicant has participated in the Court’s Legal Advice Scheme and received free legal advice. The Applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in her own language.
At the commencement of the hearing, the Applicant confirmed that she had not filed any amended application or submissions in support of her application and that she had no further documents to present to the Court this morning in support of her application. On 5 November 2010 the Applicant filed an affidavit sworn by the Applicant on 4 November 2010.
At the commencement of the hearing the Applicant was given leave by consent to rely on an annexure to her affidavit dated 4 November 2010 headed “Amended Application Attached to the Affidavit”. The Applicant confirmed that those were the only grounds upon which she now relied in support of her application for judicial review to this Court. They are as follows:
“1. The decision of the Tribunal was infected with jurisdictional error and Procedural error and the decision was infected with jurisdictional error and Procedural error (sic) was detrimental to the applicant getting a fair hearing because the Tribunal perceived bias against the applicant.
2. The pregnancy report was given to the Tribunal and a wrong inference was made of the evidence and tribunal did not give me or my adviser an opportunity for a hearing after the report that was forwarded by the Rapist Ashneel who deliberately produced The report of the pregnancy as he wanted me to come to normal and the pregnancy Was a force not with consent.
3. There was no investigation on the part of the forced pregnancy; the tribunal took The decision on its own concluding the hearing and no opportunity and therefore the tribunal decision was infected with jurisdictional error and procedural error.
4. The relationship between judicial review on grounds of apprehended bias and irrationality in reasoning, was extensively discussed by Allsop J, with whose reasons Moore and Temberlin (sic) JJ agreed, in NADH of 2001 v Minister for Immigration & Multicultural and indigenous Affairs [2004] FCAFC 328 (2004) 214 ALR 264 – “where the fact finding has been conducted in a manner which can be described, as here as in substantial respects unreasoned, and mere assertion lacking rational or reasoned foundation, at time as plainly and e facie wrong and as selective of material going one way, these considerations may found a conclusion that the posited fair minded observer might or indeed would, reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly.
5. There is no defence on the part of the Tribunal to state that it allowed a hearing and it concluded nor she could say whatever she wanted before the decision. The applicant is not a person from a legal background and she would have no knowledge in how to conduct her own hearing.
6. Because she is poor as against this a rich victim in my situation who has abundant funds will be able to engage a top notch lawyer and get a fair decision and my weaknesses in this area compels me to get an unfair justice.
7. Conduct in relation to the hearing which might cause the relevant apprehension that the Tribunal did not have a mind prepared to allow the applicant and opportunity and genuinely to maintain its detachment of judgment until that opportunity was fully afforded, would reveal a jurisdictional failure by the Tribunal.
8. The applicant submits that this is the evidence that is used to highlight the inconsistency between the information held by the Tribunal and the applicant’s claim and the Police Report as well as Barbara’s psychological report has not been evidenced. Although there was no supporting evidence from [Ms X] as she is a human being and I do not know her whereabouts as I too far and not reachable or I am unable to make a search as this is beyond my reach. I have statutorily declared my relationship in respect of: [Ms X] and apart from it is my husband whom I fear and fall well within the definition and act of Section 36 of the Migration Act for Conventional reasons as I fear from husband who attempted to kill me.
In conclusion, the Tribunal has a statutory duty and function of fact finding and in the instances quoted above the Tribunal did not direct the hearing to specifics and let the hearing continue without investigation of the force rape by Ashish and no investigation was made on the address of [Ms X] who lives in Fiji.”
Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of the application generally.
Grounds 1, 5 and 7
Grounds 1, 5 and 7 allege bias or apprehended bias on the part of the Tribunal.
To the extent that Grounds 1, 5 and 7 allege bias or apprehended bias, for the reasons below, no such allegation is made out. Such a claim is serious and requires evidence, such as a transcript of the Tribunal hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the Applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).
The Applicant was directed on 7 October 2010 by this Court to file and serve any affidavit containing additional evidence to be relied upon including the transcript of the hearing, by 5 November 2010. The Order informed the Applicant that evidence of a Tribunal hearing was to be presented as a transcript verified by affidavit and that a tape recording would not be received without leave of the Court obtained prior to the hearing. No such evidence was filed by the Applicant. In the circumstances, the Court accepts as accurate the Tribunal’s summary of exchanges that it had with the Applicant at the hearing.
A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).
A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).
The Tribunal found that its rejection of the Applicant’s claims to be a lesbian caused it to doubt her credibility generally and that this was a factor in considering the plausibility of her claims with regard to her husband. The Tribunal’s consideration of the Applicant’s claim to be a lesbian and to fear harm for that reason is dealt with in detail in ground 2 below. In short, the Tribunal’s rejection of the Applicant’s claim to be a lesbian was open to it on the evidence and material before it and for the reasons it gave.
The Applicant’s claim to fear harm in Fiji by reason of her husband’s alleged past domestic violence and the Tribunal’s consideration of those claims and its findings are considered below.
The Tribunal had regard to the report from the sergeant at the Narere police station but found that it was so inconsistent with the Applicant’s oral account that the Tribunal did not place weight on it as a reliable source of evidence.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal explored the Applicant’s claims and supporting material with her in some detail at the hearing, in particular, a report from a sergeant from the Narare police station. It put to her concerns it had about her evidence and noted her responses. The Tribunal noted that it asked why the sergeant had written that her husband was charged with assault occasioning actual bodily harm and noted that the Applicant said that she did not think he was charged. The Tribunal noted that, in reply to its question if this was the only charge the husband had ever faced to her knowledge, the Applicant responded that he was never charged with anything. The Applicant also stated that the sergeant’s comment that the husband left her and her daughter in 2007 was incorrect because it happened in 2008. The Tribunal noted that it put the inconsistencies in her oral evidence with the sergeant’s report and noted her responses. The Tribunal also put to her that the sergeant’s letter indicated that the police had considerable concern for her and her safety and wanted to give her protection. The Tribunal noted her response that each time she complained they took no action.
In those circumstances, the Tribunal found that there was no reliable police record of complaints about the Applicant’s husband’s alleged violence.
The Tribunal also had regard to the Applicant’s failure to take any serious step towards seeking a divorce from her husband and that if she genuinely feared harm from him she would have taken steps either in Fiji or after her arrival in Australia, towards divorce.
The Tribunal also had regard to the psychologist’s report stating that the Applicant had symptoms of post traumatic stress disorder, anxiety, depression and stress. However, the Tribunal was not satisfied that those symptoms were due to the husband’s alleged violence rather than other incidents in her life.
The Tribunal also noted that in her response to the s.424A Letter where the Tribunal said that the information in the “dob-in” letter may also lead the Tribunal to infer that she had not been truthful when she claimed that she feared being harmed by her husband in Fiji, the Applicant did not refute the Tribunal’s inference. Her response was confined to the circumstances of the alleged assault. The Tribunal concluded that:
“It may be that [the Applicant] was a victim of domestic violence at some point when she was living with her husband. However, having regard to all these matters, I do not consider plausible her claim that her husband currently intends to seriously harm her, and therefore am satisfied that the chance that he will do so if she returns to Fiji is remote.”
The Tribunal explored with the Applicant the circumstances of her separation from her husband and noted her statement that her husband now had a new partner and a child aged about two. She said he was living somewhere in Suva, although she did not know if he was living with his new partner. She said that her most recent contact with him was five to six months before she came to Australia, around February or March 2009. The Tribunal noted the Applicant’s response that he used to come to her parent’s place while she was at work, most recently around June/July 2009 to see his daughter. The Applicant stated that on those occasions he swore at her family and referred to the Applicant’s relationship with [Ms X].
The Applicant confirmed that the husband’s most recent assault to her was in December 2008 and that she had complained to the police at Narere police station about that and they had done nothing. She said that she did not know why the police sergeant’s letter did not mention any complaint by her after 2007.
The Tribunal rejected the Applicant’s claims of any ongoing threats of harm to her from her husband. The Tribunal noted that there was no other evidence to support the Applicant’s claims of violence by her husband. The Tribunal found that in the absence of such material and its adverse finding in relation to her credibility about her claims to be a lesbian affected her credibility in relation to her claims of a fear of persecution in Fiji from her husband by reason of future domestic violence.
The Tribunal also explored in some detail with the Applicant her relationship with [Ms X] and her allegations of assault upon her father by her husband. The Tribunal also identified country information to which it had regard, particularly in relation to homosexuality in Fiji.
In the circumstances, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings.
Accordingly, Grounds 1, 5 and 7 are not made out.
Ground 2
Ground 2 asserted that the Tribunal made a wrong finding in rejecting her claim to have become pregnant as a result of an assault.
In support of Ground 2, the Applicant asserted that the Tribunal had made its decision not upon her claims but in a “dob-in” letter received by it that stated that the Applicant was pregnant at the time of the Tribunal hearing and in a relationship with a man. The Applicant said that she was not given any opportunity to explain what had happened and that the Tribunal did not discuss the “dob-in” letter with her.
I took the Applicant to the s.424A Letter in the Court Book, marked Exhibit 1R. I explained to her that the information in the “dob-in” letter was put to the Applicant in writing, together with the relevance of that information. The relevant particulars were stated by the Tribunal to be as follows:
“The particulars of the information are as follows:
The Tribunal has received an allegation that you have given “false information” in relation to your claim to be a lesbian and to fear being persecuted in Fiji for that reason. The information is that you are in an ongoing relationship with a male, and that you were pregnant at the time of the Tribunal hearing.
The Tribunal has also received evidence that your pregnancy was terminated on 28 May 2010.
This information is relevant to the review because the Tribunal could infer from this that you have not been truthful when you claim that you are a lesbian and that, if you returned to Fiji, you would wish to resume a previous relationship with a woman. The Tribunal could also infer that you have not been truthful when you claim that you fear being harmed by your husband in Fiji.
If the Tribunal relies on this information in making its decision, it could therefore conclude that you do not have a well-founded fear of being persecuted in Fiji for a Convention reason.
You are invited to give comments on or respond to the above information in writing.”
I also took the Applicant to her response to that letter in Exhibit 1R. The Applicant agreed that she had received the s.424A Letter and that she had provided a response. However, she maintained her complaint that the Tribunal should have thereafter invited her to another hearing to tell her side in response to the Tribunal’s concerns.
In relation to the Applicant’s complaint about the Tribunal failing to invite her to a second hearing, such a complaint does not establish jurisdictional error on the part of the Tribunal. There is no obligation on the Tribunal to invite the Applicant to another hearing where the Tribunal has given the Applicant information that may be the reason or part of the reason for affirming the decision under review in accordance with s.424A of the Act. Moreover, there is no evidence before this Court that the Applicant asked for a further hearing from the Tribunal. In particular, there is no suggestion in her response to the s.424A Letter that she wished to have another hearing to discuss those matters.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal had regard to the “dob-in” letter as undermining the Applicant’s claim to be a lesbian. That issue was squarely raised by the Tribunal with the Applicant at the hearing when the Tribunal stated that it told the Applicant that it had some doubts that she was a lesbian or that she was in a relationship with [Ms X]. The Tribunal noted that it agreed with the Applicant that if she wished to submit any further evidence she could do so within seven days of the hearing.
The Tribunal noted that the Applicant confirmed in her response to the s.424A Letter that she was pregnant at the time of the Tribunal hearing. The Tribunal noted that the Applicant alleged that she fell pregnant as a result of a sexual assault occurring in early April 2010. However, the Tribunal had particular regard to the fact that in her response to the s.424A Letter the Applicant expressed an intention to report the assault to police. However, the Applicant had not done so in the three months since the alleged result occurred and submitted no evidence to the Tribunal that she had done so since expressing the intention to report it in her response. The Tribunal found that the more likely scenario was that she fell pregnant in the course of an ongoing relationship with a man.
In considering the Applicant’s claim to be a lesbian the Tribunal had regard to the fact that there was no evidence beyond that of the Applicant that she had a lesbian relationship in Fiji with [Ms X]. The Tribunal noted there was no supporting evidence such as a statement from [Ms X] or letters or photographs reflecting the nature of the relationship. The Tribunal also noted that there was no oral or written evidence from the Applicant’s aunt in Australia whom the Applicant stated knew all about her relationship with [Ms X].
The Tribunal also had regard to the fact that the Applicant claimed to have lost contact recently with [Ms X] because she could no longer reach her by telephone and that she must have moved to an address not known to the Applicant. The Tribunal found that, given the claimed previous closeness of the relationship, “this apparently sudden and unexplained unavailability by [Ms X] may in truth be attributable to [the Applicant]’s reluctance to for this person to give evidence to the Tribunal.”
The Tribunal also noted that the Applicant claimed to have publicly kissed [Ms X] on a Suva club on Christmas Day and for [Ms X] to have been aware that the Applicant’s husband’s friends were at a nearby table at the time. The Tribunal found this “a highly implausible scenario” for further reasons which it stated.
These concerns expressed by the Tribunal caused it not to be satisfied that the Applicant is now or ever was a lesbian, or that she ever had a relationship with a female partner in Fiji.
Accordingly, the Tribunal found that the Applicant did not have a well founded fear of persecution in Fiji for any reason associated with the perception that she is a lesbian.
As is clear from the reasons above, the Tribunal made clear its concerns with the Applicant’s explanation of sexual assault. They referred in particular to the failure of the Applicant to report the assault, despite telling the Tribunal that she intended to do so. In the circumstances it was open to the Tribunal not to accept the Applicant’s explanation about having her pregnancy terminated. That is because she became pregnant because of the sexual assault.
In the circumstances, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.
Accordingly, Ground 2 is not made out.
Ground 3
In support of Ground 3, the Applicant asserted that the Tribunal should have investigated her allegations of sexual assault. However, there is no general duty on the Tribunal to investigate claims made by an applicant (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in joint judgment). The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
The Applicant offered no more information or evidence in support of the sexual assault other than that contained in the response to the s.424A Letter. As stated above in these reasons, the Tribunal made clear its concerns about the Applicant’s explanation and the reasons why it did not accept that she was pregnant as a result of a sexual assault.
As stated above, those findings and conclusions were open to the Tribunal on the evidence and material before it and for the reasons it gave.
Grounds 4 and 6
Grounds 4 and 6 are more in the nature of submissions. The Applicant agreed that they did not assert any error.
Ground 8
In support of Ground 8 the Applicant stated that the Tribunal had made its decision based on the “dob-in” letter and it did not have regard to the police report and her psychological report. Further, she asserted that the Tribunal had failed to investigate [Ms X]’s address in Fiji.
In relation to the Applicant’s assertion that the Tribunal had failed to investigate [Ms X’s] address in Fiji, the evidence before the Tribunal was clearly that the Applicant had tried to reach [Ms X] but that her address was unknown. In those circumstances, this was not a fact readily ascertainable by the Tribunal (see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In the circumstances, there was no obligation on the Tribunal to investigate [Ms X]’s address in Fiji.
In relation to the Applicant’s assertion that the Tribunal did not have regard to the police report and the psychological report, a fair reading of the Tribunal’s decision record does not support such an assertion. As is clear from the reasons above, the Tribunal had regard to the police sergeant’s letter in some detail. However, the Tribunal did not find it reliable in circumstances where it found a number of inconsistencies between what was stated in that Court and the Applicant’s own oral evidence. As stated above, those concerns were put to the Applicant at the hearing and her responses noted.
In relation to the psychological report, the Tribunal made clear that it was not satisfied that the symptoms from which the Applicant was said to suffer were because of past incidents involving her husband’s violence. It is for the Tribunal to evaluate the evidence before it and to make factual findings based on that evidence. The Tribunal did so. The findings were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). Otherwise, the Applicant’s claims are more in the nature of a disagreement with the findings can conclusions of the Tribunal. Such complaints invite merits review which this Court cannot undertake.
Accordingly, Ground 8 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. [e.g. TD: 52-58, 67-69, 76, 82] 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 ninety (90) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 2 December 2010
0
10
0