SZRBT v Minister for Immigration
[2012] FMCA 1154
•10 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRBT v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1154 |
| MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal. ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal had failed to consider all the applicant’s claims, failed to consider all the evidence before it, failed to undertake inquiries, failed to make a proper, genuine and realistic assessment of the applicant’s claim, conducted the review otherwise than in good faith, denied the applicant a proper hearing and took irrelevant considerations into account. |
| Migration Act 1958, ss.425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 |
| Applicant: | SZRBT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 116 of 2012 |
| Judgment of: | Cameron FM |
| Hearing date: | 26 November 2012 |
| Date of Last Submission: | 26 November 2012 |
| Delivered at: | Sydney |
| Delivered on: | 10 December 2012 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 116 of 2012
| SZRBT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Nepal who arrived in Australia on 12 December 2008 on a student dependent visa. On 8 April 2011 she applied to the Department of Immigration and Citizenship for a protection visa, alleging that she feared persecution in Nepal because of her political opinion and membership of a particular social group. On 24 June 2011 her application for a protection visa was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-13 of the Tribunal’s decision. Relevant factual allegations are summarised below.
The applicant made the following claims in her protection visa application:
a)she was born to a poor family which relied on farming for its income;
b)she was forced to enter into an abusive marriage against her will. Her family wanted her to marry a wealthy man but she had wanted to study. She escaped the arranged marriage with the help of a Maoist friend;
c)she stayed with her Maoist friend at his house and eventually fell in love with him. They got married and she started following the Maoists’ instructions to involve herself with them;
d)her husband was killed by the police and nobody investigated his death;
e)she was raped by a Maoist and told that she would be killed if she told anyone;
f)she came to Australia to save her life; and
g)she came to Australia as a student dependant but had submitted a false marriage document.
The applicant was interviewed by a departmental officer on 31 May 2011. At her interview the applicant submitted an original and a translation of a statement dated 15 April 2011 in which she made the following claims:
a)on 14 February 2007 she married a college friend who was a Maoist and who had helped her escape an abusive marriage. She had brought shame on her family by marrying a Maoist of a lower caste, her parents being Hindus and monarchists;
b)she had been a supporter of the Maoists since high school and had become a member because of her husband;
c)on 21 December 2007 her husband arranged a protest. The police came to disperse the protest and her husband was shot. About seven of the Maoists were captured, including her, and she spent two days in prison. During her detention she was forced to walk on her knees over stones and made to carry stones on her head as punishment for her involvement with the Maoists;
d)she was released because she became very sick. The police warned her against any further involvement with the Maoists;
e)she returned to her husband’s house and received confirmation of his death from the local Maoist leader on 25 December 2007;
f)a few weeks after her husband’s death three Maoists, including the local leader, came to stay at her house. The local Maoist leader raped her and threatened to kill her;
g)she told her sister what had happened and went to live with her. Her sister encouraged her to travel to Australia;
h)she came to Australia as a student dependent with the help of a migration agent; and
i)she was afraid of the police and of being raped.
At the interview the applicant made the following claims:
a)her parents had not pursued her after she refused to enter into an arranged marriage because they did not care about her, given her lower caste marriage;
b)she had helped the Maoists with their activities because she had liked their principles of helping women, trying to establish a new regime and punishing rapists and thieves. She had helped with tea, supper, notes and information for their political activities;
c)she had been involved in three Maoist protests. They had not needed police permits for the protests;
d)her husband was killed by the police on 25 December 2007;
e)since her rape she no longer respected the Maoists. She could not seek help about her rape because she had been involved with the Maoists and the Maoists would not help her because her rapist was a Maoist leader;
f)she had lived with her sister whilst waiting for her student visa and nothing had happened to her there. She had not gone to India because she did not know anyone there and had been scared. Although she did not know anyone in Australia, it was better in its treatment of women than India;
g)she had not applied for a protection visa earlier because she had been told by the person on whom she was allegedly dependent, and thus qualified for a student dependent visa, not to say anything. The person had told her that he would include her in his permanent residency visa application but had later told her that he could no longer help her. Her friends told her about protection visas in November or December 2010 but as she had not known that she could apply for protection in Queensland she had moved to Sydney to apply;
h)she had only met the person on whom she was dependent once but they had exchanged telephone numbers;
i)she could not return to Nepal because the police would accuse her of being involved with the Maoists and the Maoist leader who raped her would harm her again; and
j)if she returned to Nepal she would be hated and would not be accepted by society because widowed women are exploited in Nepal and cannot re-marry.
On 16 June 2011 the applicant submitted the originals and translations of a marriage certificate showing her to have been married on 10 March 2007 and a death certificate showing that her husband had died on 25 December 2007.
The applicant attended a Tribunal hearing on 24 November 2011 and made the following additional claims:
a)she had last spoken to her parents in December 2006. Her parents had found out about her marriage from people in the village and when they found out that her husband was from a lower caste they did not attempt to contact her. She was disowned for marrying a man of a lower caste;
b)her documents were not fraudulent;
c)she had delivered invitations to Maoist meetings. However, she was not told of their plans and was not involved;
d)she did not remember anything about the Nepal elections held in 2008. She had voted once but could not remember when;
e)she was raped two weeks after she was released from detention and stayed at her home for a further two weeks before moving to live with her sister. She and her sister had agreed not to tell the police about the rape because it would cause problems;
f)apart from discrimination against her because she was a widow and a single woman, she had not experienced any problems while living with her sister;
g)her husband had owned some property. After he died she had just left it and did not know what had happened to it. Her sister had arranged everything for her trip to Australia and had financed it;
h)she had met her false husband three or four months before leaving Nepal and again when they travelled to Australia. When they arrived in Australia they lived with a friend of her false husband for two or three days and then she moved to the Gold Coast;
i)she had not needed to apply for protection until her false husband refused to include her in his application to extend his student visa;
j)as a widow and a single woman she would be vulnerable to abuse by Maoists and criminals. She would also be discriminated against and not allowed to go to social functions and festivals. Her family would not support her because they considered her to be a disgrace; and
k)if she returned to Nepal she would protest against the Maoists because of what they had done to her and she would be unable to lead a safe life.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal rejected all of the applicant’s claims and expressed serious concerns about the applicant’s credibility because:
i)the applicant had admitted to submitting a false marriage document in order to secure a student dependent visa;
ii)the applicant claimed to have been a Maoist and to have been involved in her husband’s Maoist activities but was vague about the Maoists’ aims and her own activities and knew very little about the 2008 elections in which the Maoists had had a substantial victory;
iii)it was implausible that the applicant’s parents had made no attempts to pursue her after she ran away from their home having refused to enter into an arranged marriage as a sixteen year old school girl; and
iv)the applicant was frequently confused about key dates in her account, such as the date of her husband’s death, and was confused about her own whereabouts and activities after her husband’s alleged death;
b)the Tribunal found unsatisfactory the applicant’s explanation that for two and a half years she had not applied for a protection visa because she had felt safe on her student dependent visa. The Tribunal found that as the applicant had had no contact with her student husband after her arrival in Australia and had only met him when she was departing for Australia, she could not have relied on a continued association with him. Given the applicant’s significant delay in lodging her protection visa application, the Tribunal concluded that she had not been afraid of serious harm in Nepal at the time she arrived in Australia;
c)the Tribunal gave no weight to the applicant’s purported marriage certificate and a purported death certificate for her husband because:
i)on her own admission she had been responsible for producing fraudulent documents in order to secure a student dependent visa;
ii)country information indicated that document fraud was widespread in Nepal; and
iii)the applicant gave evidence which conflicted with that in her supporting documents, or which was vague and unconvincing regarding events about which she had submitted documentation;
d)the Tribunal found that while it might have been the case that the applicant had refused to enter into an arranged marriage, on her own evidence her parents had not attempted to harm her as a result of her refusal. The Tribunal gave the applicant the benefit of the doubt in accepting that she married a college friend from a lower caste. However, even though it accepted that the applicant’s parents were unhappy with her for refusing to enter into the marriage they had arranged for her and for marrying a person from a lower caste, the Tribunal found on the evidence before it, which was consistent with country information, that the applicant had suffered no serious harm because she had married a person of a lower caste;
e)the Tribunal did not accept that the applicant was active on behalf of the Maoists, whether or not her husband was a Maoist activist. In this regard, the Tribunal noted that the applicant was vague about her activities, demonstrated extremely limited knowledge of the Maoists’ aims and demonstrated very limited knowledge of politics in general in Nepal, including having difficulty recalling whether she had ever voted or what the 2008 election results were. The Tribunal did not accept that the applicant was arrested and detained because of her attendance of a Maoist demonstration in December 2007, instead finding that she had fabricated the story to support her protection visa application. The Tribunal further found that the applicant was confused about the activities she had undertaken leading up to her claimed arrest and that her account of her detention, mistreatment and subsequent release was confused and lacking in detail;
f)the Tribunal did not accept that the applicant was raped by a Maoist leader, finding her account of this event unconvincing, particularly given her evidence that she did nothing about the alleged rape but remained in a house on her own for a further two weeks. Whilst accepting that the situation in Nepal might be volatile and that Nepalese citizens might be vulnerable to criminal activity, including rape, the Tribunal did not accept that there was other than a remote possibility that the applicant would be raped by a Maoist or by anyone else in Nepal;
g)the Tribunal was not satisfied that there was a real chance that the applicant would encounter significant economic hardship such as to threaten her capacity to subsist if she returned to Nepal. Based on the applicant’s experience and education, the Tribunal found that she would be able to find employment in Nepal and in the event that she could not, she would be able to obtain financial and other assistance from her sister as she had in the past;
h)the Tribunal accepted that there might be social discrimination against single women, including widows, in Nepal but found that even if the applicant were discriminated against by being ostracised by her parents and banned from attending social functions and festivals, this would not be sufficiently serious to amount to persecution in a Convention sense. The Tribunal also found that the applicant would be able to receive support from her sister; and
i)the Tribunal was not satisfied that there was a real chance that the applicant would be persecuted for reasons of her political opinion, either as a former Maoist supporter or as a current critic of the Maoists. Having rejected the applicant’s claims to have had any significant involvement with the Maoists and to have been detained, the Tribunal was not satisfied that there was a real chance that the applicant would be at risk of serious harm for reason of her political opinion as a Maoist supporter. In this regard, the Tribunal noted the peace deal struck with the Maoists in 2006 to end the armed conflict in Nepal and the fact that the current prime minister is a Maoist. In those circumstances, the Tribunal found that a Maoist political opinion would not put anyone at risk of serious harm in Nepal in the foreseeable future. The Tribunal also found that the applicant had had minimal involvement with politics of any kind and it did not accept that there was a real chance that she would do anything which could be seen as critical of the Maoists if she returned to Nepal. Additionally, as she did not have a political or other profile the Tribunal found that there was no real chance that any criticism she might voice against the Maoists would result in any harm to her.
Proceedings in this Court
In the application commencing these proceedings the applicant alleged:
1.The Tribunal failed to exercise its jurisdiction by ignoring to consider and make findings in respect of my claims as it did not address the question of whether a person in my position was able to live a life on my own protection or obtain adequate protection. I believe the Tribunal Member ignored or failed to use all the means to make the substantial evidence in terms of my fear on return to Nepal.
2.It is contended that jurisdictional error is evidence in the way in which the Tribunal ignored or failed to make a proper genuine and realistic assessment of the real risk of serious physical or psychological harm that I fear in my country. I fled Nepal for safety reason as I felt that it was inevitable that I would be harmed, raped or killed by the Maoists and I would be discriminated and isolated by the conservative people. The Tribunal Member has deprived me of natural justice and good faith in my case.
3.The Tribunal Member has heavily relied upon cross examination of myself to highlight seeming inconsistencies and then to discount my evidence on that basis. I believe overbearing nature of the comments made by the Tribunal Member clearly coloured the whole of my evidence. The substantial conclusion reached by the Tribunal was an irrelevant consideration and taking an irrelevant consideration into account to cast a shadow on my credibility was a jurisdictional error.
At the hearing of this application the applicant also submitted that the Tribunal did not listen to her and did not believe her.
Ground 1
The allegations made in the first ground of the application fall into two categories. The first category is that the Tribunal failed to consider aspects of the applicant’s claims and the second is that it failed to consider her evidence or to obtain additional evidence relevant to the review.
As to the first category, although it was not expressed exactly in these terms, the applicant’s allegation was that the Tribunal failed to consider whether she could live in Nepal without the need of protection or, alternatively, whether she could obtain protection to address feared persecution. She alleged that because the Tribunal had failed to consider these matters, it had failed to consider her claims.
On the facts, this allegation is not made out. The Tribunal did address the question whether the applicant had a well-founded fear of persecution in Nepal for a Convention reason and it reached its ultimate conclusion having considered all the claims which the applicant made. In this connection, it is significant that the applicant has not identified any aspect or integer of her claim to fear persecution in Nepal which she alleges was not considered by the Tribunal. Rather, she has made a generalised assertion which is contradicted by the terms of the Tribunal’s decision record, as demonstrated by the summary of that decision record appearing earlier in these reasons.
Further, notwithstanding the way the applicant phrased this allegation, the Tribunal had no obligation to consider whether another person who might have been in a position analogous to that of the applicant, might face persecution. The Tribunal’s inquiry was directed to the claims made by the applicant and not to any hypothesised third person.
Turning to the second set of matters raised by the first allegation, the applicant has not identified what evidence was before the Tribunal which it failed to consider. More importantly, she has not identified in what way any evidence which the Tribunal might have overlooked could have possibly deprived her of a successful outcome to her review. I am not persuaded that the Tribunal did fail to consider any such evidence.
The second aspect of the first allegation appears to imply that the Tribunal should have made its own enquiries which might have led to the review having a different outcome. The Tribunal has no general duty to make enquiries, although a failure to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review: Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 at 1129 [25]. It was not suggested, and it is not apparent, that circumstances of that sort existed in this matter.
For these reasons, the first ground of the application is not made out.
Ground 2
In the second ground of her application the applicant alleges that the Tribunal denied her natural justice because the Tribunal failed to make a proper, genuine and realistic assessment of her claim to face a real risk of harm in Nepal. The applicant also appears to allege that the review was not conducted in good faith.
The essence of the first part of the second allegation is that the Tribunal should have found, upon a proper, genuine and realistic assessment of her claims, that the applicant had well-founded fear of persecution for a Convention reason in Nepal. Put another way, the applicant invites the Court to disagree with the Tribunal’s findings on the merits of her claim for a protection visa and to set aside its decision for that reason. However, as explained earlier in these reasons, the Court is not empowered to do that.
The second element of the second allegation appears to allege a want of good faith on the part of the Tribunal. Nothing was advanced by the applicant which would support a finding of that sort. In particular, the applicant has not pointed to any matters which might satisfy the criteria for such a finding such as those discussed in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749. The applicant has not demonstrated that the Tribunal’s review was conducted other than in good faith.
For these reasons, the second ground of the application is not made out.
Ground 3
Exactly what the applicant means by the third allegation made in her application is not absolutely clear. It appears to be an allegation that the questions which the Tribunal posed to her during its hearing had the effect of distorting her evidence and that this led to incorrect factual conclusions which in turn led the Tribunal to make an adverse finding on her credibility.
Absent additional vitiating factors such as bias, intermediate fact finding and determinations of the weight to be given to evidence are matters solely for the Tribunal. Even so, if the applicant were able to demonstrate that the conduct of the Tribunal at its hearing had so overborne her that she was prevented from giving the evidence she wished it to have or from making the arguments which she wished it to consider then she would have been denied the hearing which was implicitly her right under s.425 of the Act. However, the applicant has not taken the Court to any aspect of her hearing with the Tribunal which would lead to a conclusion of that sort. Specifically, she has not tendered a transcript of the Tribunal hearing evidencing such behaviour. The only evidence before the Court touching on this issue is the summary of the Tribunal’s hearing contained in its decision record. Although that summary does indicate that the Tribunal pressed the applicant on a number of issues, I am not persuaded that the applicant was denied a real and meaningful hearing.
To the extent that the allegation that the Tribunal took irrelevant considerations into account means more than that it based its credibility finding on incorrect intermediate findings of fact, the applicant has not identified what irrelevant consideration was taken into account by the Tribunal. In the circumstances, I do not find that the Tribunal took into account a matter which it was obliged to not consider.
For these reasons, the third ground of the application is not made out.
Submissions at hearing
The first of the allegations the applicant made at the hearing of this application was that the Tribunal had not believed her, implicitly submitting that it should have. However, as explained to the applicant at the hearing, submissions of this sort invite the Court to review the merits of the visa application in question, a matter which the Court is not empowered to do. For this reason, that aspect of the applicant’s address does not disclose reviewable error on the Tribunal’s part.
The second element of the applicant’s address was that the Tribunal had failed to listen to her, an implicit allegation that it did not consider all her claims or their integers. On the facts, I find that this allegation is not made out. The applicant’s claims were not complex and were considered by the Tribunal.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 10 December 2012
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