SZRCG v Minister for Immigration and Citizenship

[2013] FCA 483

FEDERAL COURT OF AUSTRALIA

SZRCG v Minister for Immigration and Citizenship

[2013] FCA 483

Citation:

SZRCG v Minister for Immigration and Citizenship [2013] FCA 483

Appeal from:

SZRCG & Anor v Minister for Immigration and Citizenship [2013] FMCA 50

Parties:

SZRCG and SZRCH v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

File number:

NSD 265 of 2013

Judge:

RARES J

Date of judgment:

9 May 2013

Legislation:

Migration Act 1958 (Cth) ss 36, 91R(1)(b) and (2)(a), 424A, 424AA

Cases cited:

Minister for Immigration and Ethic Affairs v Guo (1997) 191 CLR 559 applied
Minister for Immigration and Ethic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied

MZYIA v Minister for Immigration and Citizenship (2011) 121 ALD 291 applied

SZBYR v Minister for Immigration and Citizenship (2006) 235 ALR 609 applied

Date of hearing:

9 May 2013

Place:

Sydney

Division:

GENERAL DIVISION

Category:

No catchwords

Number of paragraphs:

21

Counsel for the Appellants:

Mr R Turner

Solicitor for the Appellants:

Turner Coulson Immigration Lawyers

Counsel for the First Respondent:

Mr J King

Solicitor for the First Respondent:

DLA Piper Australia

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 265 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZRCG
First Appellant

SZRCH
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	9 MAY 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellants pay the first respondent’s costs.  

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 265 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZRCG
First Appellant

SZRCH
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE:	9 MAY 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

1. This is an appeal from a decision of the Federal Circuit Court of Australia, SZRCG v Minister for Immigration [2013] FMCA 50 refusing the appellants constitutional writ relief. The appellants husband are husband are wife, but only the wife had a substantive claim for a protection visa, the husband’s claim being purely derivative. The appellants are citizens of Mauritius. The judge below rejected the appellant’s claims that the Refugee Review Tribunal made jurisdictional errors in deciding, on 3 January 2012, to affirm the Minister’s delegate’s decisions not to grant them protection visas.

   THE ISSUES

2. There were four grounds advanced below, but one of those was abandoned during the course of the hearing as being effectively unnecessary.  Essentially, the appellants argued that her Honour ought to have found that the Tribunal had not taken into account all of the integers of the wife’s claim that could give rise to a well founded fear of persecution, namely that, first, in her younger years, she had suffered from a series of sexual assaults by her father, and, secondly, her family had made threats to her. The appellants argued that another way of understanding the second asserted error was that the Tribunal applied an incorrect test in assessing the claim. Those two grounds were argued together. The third ground was that the Tribunal failed to comply with the requirements of s 424A of the Migration Act 1958 (Cth), by giving particulars to the wife of evidence that her husband gave in her presence, which, so the argument ran, was information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review. That ground relied on the husband’s evidence that shortly after their marriage in a Muslim ceremony in January 2007, that occurred while she was still legally married to her ex-husband, the ex-husband had telephoned the new husband and verbally abused and threatened him and his wife, adding that he did not want to see the new husband again.

   BACKGROUND

3. It is not necessary to go into detail as to the factual background in order to deal with the legal issues that have arisen.  The wife is about 36 years old, and the husband about 38 years old.  The wife first came to Australia on a student visa on 15 April 2008.  She returned to Mauritius twice:  first, between 12 to 28 August 2008, and, secondly, between 16 May 2009 and 14 September 2009.  After each of those visits she returned here.  The husband first came to Australia on 16 June 2010 and joined his wife on a student visa that was valid until 20 August 2010.  The appellants made applications for protection visas on 11 August 2010.

   THE TRIBUNAL’S REASONS

4. The Tribunal expressly recorded in the findings and reasons section of its decision that the bases of the wife’s claims of a well-founded fear of persecution were that she would be seriously harmed were she to return to Mauritius, first, by her own family because of her conversion to Islam, and, secondly, by her ex-husband who had subjected her to domestic violence for the duration of her marriage.  The Tribunal recited those matters as her substantive claims, before saying that it rejected them for reasons that followed.

5. Immediately following the Tribunal’s statement of her claims in that way, it recorded that it accepted that the wife had been subjected to abuse by both her family and her ex-husband over a period of many years, and that she had complained about this to the authorities, but they had not came to her assistance.  The Tribunal found that the country information, detailed in its decision, was consistent with her claims about that abuse and the lack of the State’s response. That is to say, the Tribunal found that the authorities in Mauritius did not deal adequately with domestic violence, and although it was a crime, that law was not effectively enforced by the police, so that women remained in abusive domestic situations without the ability to have recourse to protection by State authorities.

6. The Tribunal then found that, after she had left her parents’ home, where she was living with her ex-husband in December 2006, there was no evidence that either the wife’s family or her ex-husband had harmed her, apart from subjecting her to verbal abuse.  The evidence of the verbal abuse to which the Tribunal had referred, included threats by her ex-husband to kill and harm the wife.  The Tribunal observed that the wife did not leave Mauritius for Australia until April 2008, some 16 months after she had left her parents’ home.  It noted that, in that period, she had not been harmed and had lived with her current husband from January 2007, until she left Mauritius.  The Tribunal referred to her two returns to Mauritius in 2008 and 2009.  It found that in her first return she had signed documents agreeing to the divorce sought by her ex-husband, and had gone to his lawyer’s office to sign documents in response to a written request that she should do so.  The Tribunal found that at that time the ex-husband was in Madagascar, but that, although he clearly knew that his wife would sign the divorce documents he did not seek to contact her.  The Tribunal set out her husband’s evidence of the telephone conversation he had had with the ex-husband, given in her presence during the Tribunal hearing, that occurred shortly after their marriage in a Muslim ceremony in January 2007.  It found that, apart from that telephone conversation, the ex-husband had not attempted to contact either the wife or her current husband since she had left him in December 2006, although she had sought on many occasions to contact her children through her ex-husband.

7. The Tribunal then found that when the wife came back to Mauritius in May 2009, and remained there for four months, it was unlikely, had her ex-husband or her family wanted to find her, they would not have been able to do so.  The Tribunal found that the wife knew of her ex-husband’s circumstances through her acquaintance with people who worked for his continuing employer.  It found that there was no evidence that the ex-husband had attempted to locate her during the four months she was in Mauritius, and that their divorce had been made final in 2009.  The Tribunal also found that as far as the wife was aware, by then her ex-husband had re-married.  It concluded that this behaviour did not indicate that the ex-husband was pursuing any grievance against either of the appellants.

8. The Tribunal then dealt with a number of other claims that the appellants had made and that are not the subject of complaint in these proceedings.  The Tribunal said that it had considered whether there was any real chance that the wife would be subjected to persecution if she returned to Mauritius in the foreseeable future.  It stated that, in making its findings, it had given weight to her delay in applying for protection until well over two years after she had arrived in Australia in April 2008, her return to Mauritius twice since first arriving here, without incurring any serious harm there from anyone, and her application for a protection visa, made just nine days before her student visa was due to expire on 20 August 2010.  The Tribunal found that the appellant was now happily married to her present husband, who had demonstrated his willingness to assist and support her.  It found that neither her ex-husband, nor her own family had done her serious harm since she had left her parents’ home in December 2006, where she had lived with her family and her now ex-husband.  The Tribunal concluded that, taking all the evidence into account, it was not satisfied that there was a real chance that the appellants would face Refugee Convention based persecution were they to return to Mauritius now or in the foreseeable future, and accordingly that they were not entitled to protection visas. For these reasons, the Tribunal not satisfied that either appellant was entitled to a protection visa pursuant to s 36 of the Act.

   THE APPELLANTS’ SUBMISSIONS

9. The wife argued that she had made a clearly articulated claim to fear persecution on her return, but that the Tribunal had not properly characterised that as a claim in the findings and reasons section of its decision. She contended that this amounted to a failure to consider her clearly articulated claim that she had suffered constant sexual harassment, assault, and rape by her father as a child and teenager, together with death threats from her father during that period, attempts by her mother to kill her when she was 12 years old, assaults by her ex-husband, and death threats by her ex-husband. The Tribunal accepted the wife’s factual claims that she had been subjected to abuse by her family and ex-husband over a period of many years before December 2006. However, the wife argued that the Tribunal had omitted in its summary of the claims it had to consider any reference to her claims to fear persecution by her family and ex-husband were she to return based on her experience of earlier abuse. Rather, she complained, the Tribunal had confined the claims it was considering to her fear of being seriously harmed by her own family because of her conversion to Islam. She contended that this left out of account the many years of actual physical and verbal abuse, including the attempts to kill her, which the Tribunal had accepted had occurred. She also contended that the Tribunal had failed to comply with s 424A of the Act and how it could use that information once her husband had given his evidence about the threats made by her ex-husband in the January 2007 telephone conversation.

   THE TRIAL JUDGE’S REASONS

10. The appellants reargued the same points they had made before her Honour on appeal.  Consequently, it is convenient to deal with her Honour’s reasons for rejecting those submissions together with the same points made on the appeal.  The trial judge found that the material before the Tribunal did not squarely raise any claim that the assaults the appellant had experienced in the past, might be repeated should she return to Mauritius.  Her Honour found that there had not been a substantial clearly articulated claim arising on the material before the Tribunal that the wife feared the past sexual assaults by her father to the extent that it could lead to a well founded fear of future persecution. I am not satisfied that any error has been shown in her Honour’s conclusion on that basis.

11. Her Honour also found that the Tribunal sufficiently dealt with the verbal and other abuse suffered by the wife in the past in its finding that since December 2006 she had not been seriously harmed.  Her Honour reasoned that, accordingly, the Tribunal had considered that claim in finding that it was not satisfied that she had a well-founded fear of persecution on that basis.

12. The trial judge also rejected the argument that the Tribunal had applied the wrong test in its approach to the consideration of the appellant’s claims because it failed to ask itself whether the pre-December 2006 abuse and the January 2007 verbal abuse and threats could lead to the wife having a well founded fear of persecution.  Her Honour concluded that, in its assessment of the wife’s claims, the Tribunal had proceeded in the way identified by Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ in Minister for Immigration and Ethic Affairs v Guo (1997) 191 CLR 559 at 576-577. Their Honours said that an applicant for a protection visa must establish that his or her fear of persecution for a Convention reason is a well-founded fear. That is an objective requirement additional to the subjective requirement that he or she must hold such a fear (191 CLR at 571). Their Honours reasoned that, in determining whether there is a real chance that an event will occur or occur for a particular reason, the degree of probability that similar events have or have not occurred, for particular reasons in the past, is relevant in determining the chance that the event or the reason will occur in the future (191 CLR at 576).

13. In my opinion, that is the process that the Tribunal undertook in making its factual findings and in its reasoning that I have summarised above. It did not make any jurisdictional error in doing so. The threats to kill the wife, of themselves, would be sufficient to amount to serious harm to her, for the purposes of s 91R(1)(b) and (2)(a) of the Act. In considering whether it erred in the way complained of, it is trite law that the Court must approach consideration of the Tribunal’s reasons in the manner identified by Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. Although the articulation of the appellants’ claims by the Tribunal was not perfect, I think it is clear enough that its immediate acceptance of her claims of having been abused by her family and ex-husband over a period of many years, demonstrated that the Tribunal squarely addressed them in its reasoning process, and took them into account in assessing the reality whether she had a well-founded fear of persecution in the future were she to return to Mauritius. I am not satisfied that her Honour erred in rejecting grounds one and two before her. Indeed, I am satisfied that her Honour was correct to have done so for the reasons above.

14. The third ground involved characterising the telephone conversation that the husband said that he had had with the ex-husband shortly after the religious marriage in January 2007 as information that cast on the Tribunal an obligation to act under ss 424A or 424AA of the Act. The wife argued that the information in the husband’s evidence to the Tribunal undermined her case because it suggested that both she and her husband were not at risk from the ex-husband and that the Tribunal had, in fact, used the telephone conversation in this way in arriving at its decision. In particular, she argued, that having set out the evidence of that conversation and the wife’s subsequent incident-free visit to Mauritius in May 2009, the Tribunal concluded that there was nothing in that material that indicated her ex-husband was pursuing any grievance against either appellant.

15. The Minister argued that the telephone call was, in fact, evidence that supported the wife’s case because it included a threat by the ex-husband that he could harm both of the husband or the wife at any time. He contended that, as such, were it to amount to information within the meaning of s 424A, the conversation was incapable of being a reason, or part of the reason for the Tribunal affirming the decision to refuse to grant a protection visa. The appellants had argued that the Tribunal should have given particulars to them under s 424A(1) identifying what the husband had said in his evidence and stating that that could lead it to conclude that the ex-husband had no intention of harming either appellant if they returned to Mauritius. She argued that each statement on this issue set out the findings and reasons section of the Tribunal’s decision was “information” for the purpose of s 424A(1).

16. In SZBYR v Minister for Immigration and Citizenship (2006) 235 ALR 609 at 615-617 [16]-[22] Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ considered the proper construction of s 424A. They noted that the reason, or part of the reason, for affirming a decision that is under review, was that the applicant for review was not a person to whom Australia owed protection obligations under the Convention. Their Honours said the word “information” in its context in s 424A was related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. They cautioned against the use of s 424A as a means of creating a back door route to merits review of credibility findings made by the Tribunal in judicial review proceedings.

17. In MZYIA v Minister for Immigration and Citizenship (2011) 121 ALD 291 at 298-299 [25]-[26], Gray J discussed the decision in SZBYR 235 ALR at 615 [17]. His Honour said that what the plurality said there could not have been intended to substitute an objective test that the information, in its terms, contained “a rejection, denial, or undermining” of the claims of an applicant for review, for the subjective test that the Tribunal had to consider as to whether that the information would be the reason, or part of the reason, for affirming the decision. His Honour observed that the subjective effect of information in relation to an applicant’s claims may not always be apparent from the terms of the information and said that “the essential question is how the Tribunal proposes to use the information in its reasoning process”. He went on to identify that the Tribunal’s reasons for its decision was an important source of ascertaining whether or not the information was used in the way complained of, and indeed in most instances, would be the only source of that matter.

18. Her Honour was not satisfied that the Tribunal’s findings about the telephone call was information that, in the circumstances, was part of its reason for affirming the decision under review and accordingly she rejected the ground. 

19. The Tribunal had found that the wife had given no evidence of being subjected to any substantive harm since December 2006.  The evidence of the January 2007 telephone conversation tended to support the appellants’ case that the ex-husband was continuing to make threats.  But, the Court is not able to go into the merits of the Tribunal’s ultimate reasoning process in arriving at its decision as to whether the requirements of the Act have been complied with for the purposes of ensuring that the appellants had a hearing and a decision that was made according to law.

1. Having carefully considered the way in which the Tribunal reasoned, I am not satisfied that it used the evidence of the telephone call as the reason, or part of the reason, for affirming the decision under review.  In my opinion, the Tribunal’s essential reason for affirming the decision under review was as it stated in [81] that “neither her ex-husband nor her own family has done her serious harm since she left her parents home where she lived with her family and her husband in December 2006”.  In my opinion, that was the reason for the Tribunal’s finding that it was not satisfied there was a real chance that the appellants would face convention-based persecution when they returned to Mauritius in the foreseeable future.

   CONCLUSION

2. For these reasons I am of opinion that the appeal must be dismissed with costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:       23 May 2013