SZQHK v Minister for Immigration
[2011] FMCA 645
•1 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQHK v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 645 |
| MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for judicial review – citizen of Nepal claiming fear of persecution by Maoist terrorists – credibility issues – whether Tribunal failed to consider relevant material – whether merits review – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.424A, 425, 474 |
| SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 Re Minister for Immigration; Ex parte Applicants (2003) 201 ALR 437 NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23; (2001) 75 ALJR 848; 179 ALR 296 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | SZQHK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1129 of 2011 |
| Judgment of: | Scarlett FM |
| Hearing date: | 19 August 2011 |
| Date of Last Submission: | 19 August 2011 |
| Delivered at: | Sydney |
| Delivered on: | 1 September 2011 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Newman |
| Solicitors for the Applicant: | Newman & Associates |
| Solicitor for the Respondents: | Ms Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Application filed on 3 June 2011 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1129 of 2011
| SZQHK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. On 11th May 2011 the Tribunal affirmed the decision of a delegate of the Minister for Immigration and Citizenship not to grant the Applicant a Protection (Class XA) visa.
By her Application, filed on 3rd June 2011, the Applicant seeks orders that the Tribunal decision should be quashed and the matter be remitted to the Tribunal differently constituted.
It is doubtful that this Court has the power to make a direction about the constitution of the Refugee Review Tribunal for the purposes of a particular review. This is a matter that falls within the power of the Principal Member (see SZEPZ v Minister for Immigration & Multicultural Affairs[1] at [11]-[14]).
[1] [2006] FCAFC 107
The grounds of the Application are:
1. The Tribunal erred in law and in its jurisdiction when in considering the claim that the applicant be granted asylum it posed questions not within the applicant’s knowledge and then used the applicant’s answers to attack her credibility.
Particulars
At page 13 the applicant was asked why when she claimed 15 men had come to her shop to rape her but stopped at tearing her clothes and beat her instead.
2. At page 15 the Tribunal found in any event the incident lasted only a few minutes and did not constitute persecution. This finding ignored the context in which it took place namely the continuing harassment for donations by Maoist terrorists.
The Minister filed a Response on 8th June 2011 denying that the application for judicial review establishes any jurisdictional error in the decision of the Refugee Review Tribunal.
Background
The Applicant is a citizen of Nepal. She arrived in Australia on
2nd March 2010. On 19th March 2010 she applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa.
The Applicant provided a statement to the Department on 6th April 2010 in which she claimed she had suffered persecution from Maoist terrorists. She claimed that the terrorists had come to the shop that she owned with her husband demanding a donation of money and also demanding that her husband join them. They said that the husband was not able to go with them. The terrorists returned later and beat the Applicant and her husband. They gave the terrorists some money but the terrorists asked for more.
The terrorists returned on several occasions and the Applicant and her husband gave them more money. On a later occasion the terrorists returned when the Applicant’s husband was not there. The Applicant stated:
They entered the shop and closed the shop. They attempted to rape me, touched my sensitive area and beat me. I was screaming from inside. People started to knock from outside. After about half an hour they open the shutter. They told the crowd that they were Maoists. They threatened them that they would take action against those who interfere. They destroyed whole shop. They looted money from the shop and threw all the goods on the street.[2]
[2] See Court Book at page 37
The Applicant stated that she and her husband reported the matter to the police. The police arrested the terrorists but later released them.
The Applicant and her husband left the area and lived with a relative in Kathmandu. They found out that the terrorists were looking for them so they decided to leave Nepal.
The Applicant obtained a place with a theatrical group which visited Australia to perform at a festival in Adelaide. The Applicant left her husband and the children in Nepal. The Applicant travelled from Adelaide to Sydney and applied for a protection visa.
On 11th August 2010 the Department of Immigration and Citizenship invited the Applicant to attend an interview with a departmental officer on 8th September 2010.[3]
[3] Court Book at 49
The Applicant’s migration agent wrote to the Department on
26th August 2010, confirming that she would attend the interview.
The migration agent also advised the Department that:
She claimed that her husband, who was looking after her kids back in Nepal, left the kids and got married with a new woman. She claims that her kids are living with her sister temporarily.[4]
[4] Court Book at 52
The Applicant’s migration agent forwarded translated copies of receipts issued to the Applicant for various sums of money paid to the Maoists.[5]
[5] Court Book at 53-56
The Applicant attended the hearing with the Departmental officer on
8th September 2010.
Under cover of a letter dated 7th October 2010 the Applicant’s migration agent forwarded various translated documents to the Department.[6]
[6] Court Book 57
On 15th October 2010 the Applicant’s migration agent forwarded a written submission to the Department.[7]
[7] Court Book 65
The Applicant’s application for a protection visa was refused on
9th February 2011.[8]
[8] Court Book 70
In the Protection (Class XA) Visa Decision Record, the Minister’s delegate stated that she was not satisfied that the Applicant had substantiated a claim of well founded fear of persecution for these reasons:
Firstly, I have serious concerns as to the applicant’s credibility…
Secondly…the contradictory testimony regarding the location and address details of the applicant in the few years prior to coming to Australia leads me to have serious doubts as to whether she did in fact own a business in Butwal…The vagueness of the documents leads me to doubt their genuineness, and therefore, I give them little weight…
Nevertheless, even if I am mistaken, I do not accept that the applicant would face persecution on return to Nepal…
Country information supports the idea that there may be risk for some political figures to be targeted by Maoists. Notwithstanding, the applicant does not claim to have a political or ideological opposition to the Maoist cause, nor does the applicant claim to have been involved in any political activities in Nepal…
I do not accept that there is a real chance that the applicant will suffer persecution from Maoists or anyone else in Nepal either now or in the reasonably foreseeable future.[9]
[9] Court Book 87-88
Application to the Refugee Review Tribunal
After her application for a protection visa was refused, the Applicant applied for a review of the delegate’s decision by the Refugee Review Tribunal. Her application was received by the Tribunal on 1st March 2011.[10]
[10] Court Book 90
The Tribunal wrote to the Applicant on 28th March 2011, inviting her to appear at a hearing that was scheduled to take place on 10th May.[11]
[11] Court Book 100
On 9th May 2011 the applicant’s migration agent forwarded a three page submission to the Tribunal.[12]
[12] Court Book 104-106
The Applicant attended the Tribunal hearing the next day and gave evidence with the assistance of an interpreter.
The Tribunal handed down its decision on 11th May 2011, affirming the decision of the delegate not to grant that Applicant a Protection (Class XA) visa.
The Refugee Review Tribunal Decision
In its Decision Record, the Tribunal noted the details of the Applicant’s claim from her Protection Visa application. It also summarised the evidence given at the Departmental interview, the submission from the Applicant’s migration agent and the Applicant’s oral evidence to the Tribunal. The Tribunal also referred to country information about the guerrilla war waged by the Maoist terrorists in Nepal from 1996 and 2006.
In its Findings and Reasons, the Tribunal expressed “serious concerns” about the Applicant’s credibility, noting the vagueness and uncertainty in the way she gave her evidence, and stating that there were “significant inconsistencies” between the Applicant’s written statement of claims and her evidence at the Tribunal hearing.[13]
[13] Court Book 132 at paragraph [47]
The Tribunal accepted the Applicant’s claim that she and her husband, as owners of a successful small business, were subjected to some physical harassment and extortion by Maoists until 2006.
However, the Tribunal rejected some key claims made by the Applicant:
The Tribunal does not accept that the applicant was forced to give money to the Maoists after she and her husband were forced to do so in 2005.[14]
…The Tribunal does not accept that the applicant was threatened by Maoists after she moved to Kathmandu in 2008 or 2009. She does not claim to have ever confronted Maoists in person, even though she stayed for a period with a sister who was resident in Kathmandu.[15]
…On the evidence before it, the Tribunal is not satisfied that the applicant has suffered harm sufficiently serious as to amount to persecution in a Convention sense in Nepal.[16]
[14] Court Book 132 at [49]
[15] Court Book 133 at [50]
[16] Ibid at [51]
The Tribunal considered whether there was a real chance that the Applicant would be persecuted in a convention sense if she were to return to Nepal in the foreseeable future, and decided that there was not. Whilst the Tribunal noted that the Maoists, according to the country information, continued to extort money from individuals and attack political opponents, it stated that the applicant no longer had a business and was unlikely to attract adverse attention for that reason.
The Tribunal also considered whether the Applicant, as a woman alone with young children, would be seriously harmed for a Convention reason if she returned to Nepal, even though the Applicant had not made this claim. The Tribunal made this finding:
While the situation in Nepal for a single woman with young children would be very difficult and economically harsh, according to the US State Department’s comments on women in their 2010 Country Report, the Tribunal is satisfied that her large family would provide the applicant with the protection and support she needs to subsist in Nepal, and she has demonstrated herself to be a resourceful businesswoman in the past.[17]
[17] Court Book 134 at [54]
The Tribunal was not satisfied that there was a real chance that the Applicant would be persecuted for a Convention reason if she were to return to Nepal in the foreseeable future.
The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
Application for Judicial Review
The Applicant submitted that the Tribunal in its analysis ignored relevant material, posed questions that could not be answered except by way of surmise and then rejected those posited answers for implausibility. Thus, it had fallen into jurisdictional error.
The particular claim that the Applicant had made concerned her account of fifteen Maoist terrorists storming into her shop whilst her husband was away and physically and sexually assaulting her whilst her neighbours were hammering at the door in an attempt to protect her. The Applicant’s solicitor, Mr Newman, submitted that the Tribunal had remarked that if 15 people had come to the shop intent on rape they would have done so, in effect asking the Applicant to explain what was not in her power to do. The question was also improper, he submitted. The Tribunal knew from the applicant’s oral and previous written testimony that the villagers were pounding on the shop door and that this could conceivably have disturbed them. This failure to consider essential evidence led to a finding or at least a misperception that the Applicant was lacking in credibility.
Further, it was submitted that in weighing up the Applicant’s claims about the continued interest in her by the Maoists during her sojourn in Kathmandu the Tribunal omitted to consider the Applicant’s claim that whilst she was there she moved around in order to avoid detection.
It was also submitted that the Tribunal had downplayed the shop incident, saying that it had lasted only a few minutes. The question for consideration was whether the incident could reasonably have evoked a sufficient degree of fear in the Applicant’s mind.
Mr Newman also submitted that the Tribunal had reasoned that the applicant would no longer be of interest to the Maoists if she were to return to Nepal, as she no longer had a business. However, the Applicant had reported the matter to the police, which would have still attracted the attention of the Maoists.
Ms Johnson, who appeared for the Minister, submitted that it was still not clear as to what was the claimed jurisdictional error in respect of the way the Tribunal dealt with the Applicant’s claim of having been beaten and sexually assaulted in her shop. Paragraph [47] of the Tribunal’s Findings should be considered in the context of the Tribunal’s reasons for its decision. The Tribunal said that parts of the Applicant’s statement appeared to have been learned by rote. When the Tribunal asked her questions about her claims, the Applicant could not give an explanation.
Ms Johnson submitted that it was open to the Tribunal to find that the Applicant’s claim had been learned by rote, considering her apparent inability to explain why it was that it was the Maoists’ intention to rape her and why they would not have carried out their intention.
It was open to the Tribunal to question the Applicant at the hearing about her claim and put to her the perceived implausibility in her account. The Tribunal was entitled to exercise some control over the direction of its hearing by asking questions. Proceedings before the Tribunal are not adversarial but inquisitorial (see Re Minister for Immigration; Ex parte Applicant S154/2002[18] at [57]). The Tribunal is entitled to ask questions to satisfy itself about matters (NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [19] at [14]-[125]; Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka[20] at [52]). In determining whether an applicant has a “well founded” fear of persecution, the Tribunal may need to resolve questions of credit, attribute weight to particular evidence and consider the inherent improbability of events (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang[21] at 281-282).
[18] (2003) 201 ALR 437
[19] [2004] FCAFC 328
[20] [2001] HCA 23; (2001) 75 ALJR 848; 179 ALR 296
[21] (1996) 185 CLR 259
As to the second ground of the Application, that the Tribunal, in finding at [51] that the assault on the Applicant was not sufficiently serious to amount to persecution in the Convention sense, ignored the context in which it took place, Ms Johnson submitted that when the paragraph is read in its entirety, it is clear that the Tribunal considered both the physical assault and the extortion demands when it determined that it was not satisfied that the Applicant had suffered serious harm amounting to persecution.
It is submitted on behalf of the Minister that the Applicant is, in fact, seeking impermissible merits review of the Tribunal decision.
Conclusions
I am not satisfied that the Applicant has made out any jurisdictional error on the part of the Tribunal.
The Applicant’s first ground concerns the Tribunal’s approach to her claim that she was assaulted, both physically and sexually, by Maoist terrorists. The criticism is that, in asking her why the terrorists did not carry out their stated aim of raping her, the Tribunal posed questions to the Applicant that she could not answer and then used her inability to explain as a means of impugning her credibility.
Mr Newman submitted that the Applicant could not possibly know the reason why the terrorists did not go through with their threat.
The Tribunal had ignored relevant material and thereby committed jurisdictional error.
I am not persuaded that the Tribunal has been shown to have ignored any relevant material in considering this key aspect of the Applicant’s claim. It is open to the Tribunal to question the Applicant thoroughly about an important aspect of her claim to have a well-founded fear of persecution and I am not satisfied that the Tribunal’s questions were improper.
The Tribunal made adverse findings about the Applicant’s credibility, based on the vagueness of her answers and the implausibility of parts of her account. These are matters for the Tribunal alone to decide. It is immaterial whether the Court would have come to a different conclusion on the evidence before the Tribunal. It is not open to the Court to conduct merits review of the Tribunal’s decision.
The Tribunal’s finding that some parts of the Applicant’s history “appeared at her hearing to have been learned by rote, even when lacking in plausibility”[22] is a finding on credit that was entirely a matter for the Tribunal.
[22] Court Book 132 at [47]
The Applicant’s second ground complains that the Tribunal found the incident referred to by the Applicant “downplayed” the seriousness of the incident and ignored the context in which it took place, namely the continuing harassment for donations by Maoist terrorists.
The Applicant’s complaint that the Tribunal “downplayed” the incident (made in the Applicant’s written submissions) is, with respect, an attempt at merits review. Provided that the Tribunal considered the relevant evidence, it is entirely a matter for the Tribunal as to what weight it puts on the Applicant’s account of the incident.
The Tribunal clearly did consider the context in which the alleged attack occurred. The Tribunal accepted that the Applicant and her (then) husband, as owners of a successful small business, were subjected to some physical harassment and extortion by Maoists until 2006.[23]
[23] Ibid at [48]
The Tribunal’s finding that the harm suffered by the Applicant was not sufficiently serious as to amount to persecution was based on the Applicant’s own evidence. The Tribunal stated at paragraph [51]:
While it accepts that the extortion carried out by the Maoists in 2005 caused serious harm to the applicant’s business, it does not accept that the financial hardship was such as to threaten her capacity to subsist…The physical assault associated with the extortion by the Maoists in 2005 did not last for more than a few minutes, according to the applicant’s written statement, and did not result in serious or continuing injury to the applicant.[24]
[24] Court Book 133 at [51]
There was evidence upon which the Tribunal was entitled to make the factual findings that it did, and the Tribunal’s factual findings were entirely a matter for the Tribunal. There is no evidence that the Tribunal ignored any relevant material.
I am not satisfied that any jurisdictional error has been made out. There is no breach of s.424A or s.425. The Applicant was invited to attend a hearing, which she did. She gave evidence and presented arguments in support of her case. The Tribunal was not satisfied that the Applicant had established a well-founded fear of persecution based on its adverse view of her credibility, which was one of the reasons given by the delegate for refusing her application for a protection visa.
In the absence of jurisdictional error, the Tribunal decision is a privative clause decision and, as such, is not subject to the orders in the nature of certiorari and mandamus that the Applicant seeks (s.474).
The Application will be dismissed. The Court will hear submissions on costs.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 22 August 2011
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