SZRLY v MINISTER FOR IMMIGRATION & ANOR
[2012] FMCA 848
•14 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRLY v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 848 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether Refugee Review Tribunal’s adverse credibility findings were open on the evidence and material before it – whether Refugee Review Tribunal failed to properly consider the applicant’s claims – whether Refugee Review Tribunal’s findings were open on the evidence and material before it – whether Refugee Review Tribunal was obliged to investigate pursuant to sections 424 and 427 of the Migration Act 1958 (Cth) – whether Refugee Review Tribunal failed to give the applicant an opportunity to provide further material in support of her claims – no jurisdictional error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 424, 427, 430, 474, Pt.8 |
| Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 Minister for Immigration v Khawar (2002) 210 CLR 1 Siaw v Minister for Immigration and Multicultural Affairs [2001] FCA 953 Abebe v Commonwealth of Australia (1999) 197 CLR 510 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Multicultural Affairs v Yusuf (2001) 206 CLR 32 Xu v Minister for Immigration & Multicultural Affairs (1999) 95 FCR 425 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528 VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277 W389/01A v Minister for Immigration and Multicultural Affairs (2002) FCR 407 NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528 |
| Applicant: | SZRLY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1059 of 2012 |
| Judgment of: | Emmett FM |
| Hearing date: | 3 September 2012 |
| Date of Last Submission: | 3 September 2012 |
| Delivered at: | Sydney |
| Delivered on: | 14 September 2012 |
REPRESENTATION
The applicant appeared in person.
| Appearing for the Respondents: | Ms L Buchanan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The proceeding before this Court, commenced by way of application filed on 15 May 2012, is dismissed.
The applicant pay the costs of the first respondent fixed in the amount of $6,471.
NOTE: The application for costs is in accordance with the relevant schedule in the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1059 of 2012
| SZRLY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 3 May 2012 and handed down on 4 May 2012.
The applicant claims to be a citizen of the Republic of South Africa (“South Africa”) and of Christian faith and Zulu ethnicity.
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, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the Tribunal’s review and decision.
Background
The applicant arrived in Australia on 11 January 2012 as an undocumented arrival, having departed legally from South Africa on a passport issued in her own name.
On 12 January 2012, the applicant, who was assisted by a migration agent, lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act. Copies of the applicant’s passport, health card, student identity card, and a Statutory Declaration were included with the application.
On 7 March 2012, the Delegate refused the applicant’s application for a protection visa.
On 8 March 2012, the applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 3 May 2012, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 15 May 2012, 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, is 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
Pursuant to s.91R(1) of the Act, a Convention related reason must be the essential and significant reason for the persecution, must involve serious harm to the person and involve systematic and discriminatory conduct. Section 91R(2) of the Act expands on the notion of persecution and serious harm when considering Art.1A(2) of the Convention.
The applicant’s application for a protection visa
The applicant claimed that she feared returning to South Africa and Ethiopia.
The applicant claimed that she left South Africa in 2005 because her father and brother were murdered by the African National Congress party (“the ANC”) because of their political opposition.
The applicant claimed that her father and brother were politically active supporters and members of the Inkatha Freedom Party (“IFP”). The applicant claimed that her father had stood as the local candidate for the position of Councillor in opposition to the ANC Councillor.
The applicant claimed that in 2003 her father was murdered by supporters of the ANC or the ANC Councillor. To avenge their father’s death the applicant claimed that in 2005 her brother set fire to the ANC Councillor’s house, killing the ANC Councillor’s wife and child. The applicant claimed that two days later her brother was beaten to death. The applicant claimed that the police did not investigate the crimes because the ANC Councillor prevented the police from investigating. After the murders, the applicant claimed that her
step-mother, along with her two step-brothers left the house because of threats made against them.
The applicant claimed that her neighbour with whom she was staying informed her that the ANC Councillor was looking for the remaining members of her family as he wanted to kill them. The applicant claimed that, as a result, her neighbour arranged for her and her son to go to Ethiopia.
The applicant claimed that she could not return to South Africa because her eldest son was a child of rape and therefore would be ostracised if returned to South Africa because the child would be considered a “foreigner”, where “mothers and children of foreigners are treated with abuse and called ‘makwerehere’ (‘foreigner’)”.
The applicant claimed that she fled Ethiopia in January 2012 when she was told by police that she would be killed if she did not disclose the whereabouts of her husband.
The applicant claimed that her husband was a supporter of the Oromo movement in Ethiopia. She claimed that her husband did not involve her in his political activities because “he was well aware of [the applicant’s] background, in particular that [the applicant] knew from direct personal experience that involvement in opposition political activities in South Africa and Ethiopia were very dangerous”.
The applicant claimed that her husband disappeared on 9 December 2011. Afterwards, the applicant claimed that she was arrested while at home by Ethiopian police and taken to jail in Addis Ababa where she was interrogated. The applicant claimed that she was detained on three occasions over three weeks without charge.
During her detention, the applicant claimed that she was beaten with a plastic pipe on her calves, thighs and back, and was denied food. The applicant claimed that on one occasion she was handcuffed and hung by her wrists from the ceiling of a cell for a day. The applicant claimed that she was only released when she became physically ill due to her pregnancy and the police not wanting her “dying in their jail”.
The applicant claimed that upon her release, her mother-in-law informed her that it was no longer safe for her, the applicant, to live in either Ethiopia or South Africa.
The Delegate’s decision
On 14 February 2012, the applicant attended an interview with the Delegate.
On 7 March 2012, 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 was willing to accept that the applicant’s level of “anxiety, stress and physical complaints, especially when coupled with pregnancy” may have adversely affected the applicant’s ability to recall the events of claimed persecution in South Africa. However, the Delegate found that it was not an adequate explanation for the “major discrepancies” in the applicant’s account of events to the Department and that the claims were fabricated “in order to construct a nexus between them and the Convention”.
In relation to her claims arising in Ethiopia, the Delegate found that the applicant lacked knowledge of her husband’s claimed involvement in the Oromo movement; lacked supporting documentation or evidence; and, gave information to the New Zealand authorities which was inconsistent with the information she had provided in her Australian protection visa application and interview.
The Delegate was not satisfied that the applicant had provided a credible account of her experiences in either country. If returned to either South Africa or Ethiopia, the Delegate was not satisfied that the applicant would face persecution because of her alleged imputed political opinion. The Delegate did not find it necessary to consider whether the applicant faced a real chance of persecution for reason of her membership to a particular social group in South Africa, as the Delegate found that the applicant could safely reside in Ethiopia.
The Tribunal’s review and decision
On 8 March 2012, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 19 March 2012, 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 28 March 2012 to give oral evidence and present arguments. That hearing was rescheduled at the applicant’s request.
On 22 March 2012, the applicant’s migration agent wrote to the Tribunal attaching submissions for the Tribunal’s review.
On 4 April 2012, the Tribunal wrote to the applicant confirming that the hearing had been rescheduled for 16 April 2012. The applicant’s migration agent returned a Response to Hearing Invitation for the new hearing date, and the applicant ultimately attended this hearing.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The decision of the Tribunal is accurately summarised by the solicitor for the first respondent in her written submissions as follows:
“14. On 3 May 2012, the Tribunal affirmed the decision in relation to the applicant (RD 212-240). In doing so the Tribunal found as follows:
- The Tribunal was not satisfied as to the credibility of the applicant. The Tribunal considered it relevant that the applicant had travelled to New Zealand on a South African passport in what she claimed was her true identity in February 2010. The Tribunal considered that the detail of the answers provided to the New Zealand authorities at the time she was interviewed by them to be relevant, including addresses of where she then worked in South Africa and who had booked her flight. While the Tribunal accepted that the applicant may have been reluctant to give details of her protection claims to the New Zealand authorities, it did not accept she would not say anything about protection claims at that time rather than maintain a pretence of going there only to visit. The Tribunal found that the level of detail provided to the New Zealand authorities suggested she had then been telling the truth and the Tribunal preferred that evidence to the extent of the inconsistency with what was now claimed (RD 234-7 [125]-[135])
- The Tribunal therefore found, as the applicant had claimed to the New Zealand authorities, that the applicant had been living in Mpumalanga in South Africa at that time with her partner and her children and not in Ethiopia. The Tribunal also found that in South Africa she and her partner worked with two other people sewing clothing to order and had done so for the past four and a half years. While the Tribunal accepted that the applicant had provided a birth certificate that indicated her daughter had been born in Ethiopia, it found that she visited there for the birth of her daughter and had returned to South Africa (RD 237 [136]).
- The Tribunal therefore found that the applicant was a South African citizen, that her passport had been legitimately obtained and that the reason she had not used her old one was because, as she said at hearing, her old passport would have shown that she had been refused entry to New Zealand (RD 237 [137]).
- In light of these findings, the Tribunal did not accept that the applicant had left South Africa in 2005 after her father and brother were killed by an ANC councillor and supporters due to their political activities, or that she was forced into an abusive relationship in Ethiopia as a result of fleeing South Africa. Nor did the Tribunal accept that the applicant faced harm in Ethiopia and had to flee. The Tribunal accepted that the applicant may have scars on her body as claimed, but as indicated at hearing, the Tribunal would need to determine the causes of those scars (Rd 237 [138]-[139]).
- The Tribunal also did not accept the applicant's claims regarding her father and brother or that she could not have obtained assistance from authorities due to country information discussed with the applicant at hearing that indicated the ANC and IFP had been in a coalition at the time of her claims regarding her father and the IFP held positions in the local government. The Tribunal rejected all such claims and found the applicant would not face harm if she were to return to South Africa from the ANC or South African authorities because of any real of imputed political opinion (RD 238 [140]-[144]).
- The Tribunal accepted that the applicant's son had been born after a rape in 2004 and that her partner and father of her daughter was Ethiopian. However, the Tribunal found that she was living with her partner and did not accept that the applicant would face harm as the mother of a fatherless child of rape or as the partner of a foreigner and mother of his child in South Africa. The Tribunal also did not accept the applicant's partner had been abusive. The Tribunal considered the country information submitted by the applicant regarding xenophobia in South Africa, but found that this mostly related to Zimbabweans and given her work history did not accept the applicant would face persecution on this basis and rejected the applicant's claims to fear harm as a member of the particular social groups of single women, divorced women, women who have been raped, mothers of children of rape or of foreigners in South Africa (RD 239 [145]-[146]).
- The Tribunal also considered the country information regarding the status of women in South Africa but did not accept that the applicant would face persecution on this basis. Nor did the Tribunal accept that she would face harm as a failed asylum seeker (RD 239 [146]).
- The Tribunal then went on to consider complementary protection. It considered the applicant's claims that Australia will breach its obligations arising from the same claims and that she will have difficulties subsisting in South Africa. The Tribunal did not accept, in light of its factual findings, that the applicant would be ostacized from the workplace or that as a necessary and foreseeable consequence of the applicant being removed to South Africa there is a real risk that she will significant harm as defined by s 36(2A) of the Act (RD 239-240 [147]-[149]).
- The Tribunal noted that the applicant also claimed her unborn child would be discriminated against in South Africa as a foreign child. The Tribunal found that the applicant's unborn child is not included in the protection visa application and the Tribunal did not have jurisdiction regarding those claims (RD 240 [150]).
15. The Tribunal was therefore not satisfied that Australia owes protection obligations to the applicant and affirmed the decision under review.”
The Tribunal ultimately rejected the applicant’s claims to fear persecution in both South Africa and Ethiopia based on the applicant’s lack of credibility.
Consequently, the Tribunal affirmed the Delegate’s decision not to grant the applicant a protection visa.
The proceeding before this Court
The applicant was unrepresented before this Court.
On 14 June 2012, the applicant attended a directions hearing before me. I explained to the applicant that this Court had no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the Tribunal’s decision is affected by a mistake going to the jurisdiction of the Tribunal. 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, as well as submissions in support.
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, evidence 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.
The applicant confirmed that she relied on the grounds contained in her application filed on 15 May 2012 as follows:
“1. Procedures required by the Migration Act 1958 (the Act) and the Regulations to be observed in regards and connection with the making of the decision were not observed.
Particulars
(a) Central to the decision of the Tribunal was the issue of credibility in its findings.
(b) In arriving at that conclusion the Tribunal made specific reference to at 135 that:
‘I find that on the evidence before me that the applicant was telling the truth to the New Zealand authorities in 2010 and I prefer what she said then to what she has said since her arrival in Australia in Australia in 2012 to the extent of any inconsistency. Having regard to what the applicant told the New Zealand authorities I do not accept that that she left South Africa in 2005 after her father and her brother were killed by an ANC Councillor, his son or his supporters because of her father’s or brother’s involvement in the IFP, as she claimed in her application for a Protection Visa. I do not accept that, as she claimed to the Tribunal, she was forced into an abusive relationship in order to remain Ethiopia. I do not accept that, as she claimed, she had to flee Ethiopia because of husband’s involvement in the Oromo movement. I do not accept that the applicant’s husband disappeared, that she herself was arrested and tortured by the police in Ethiopia, or that she then left Ethiopia, or that she then left Ethiopia illegally, crossing the boarder into Kenya and then flying from Nairobi to South Africa.’
1.1 These findings and conclusions by the Tribunal above were erroneous findings and mistaken conclusions and in particular, there was no evidence before Tribunal to support neither on which these findings and conclusions were based in accordance and breach of section 430 of the Migration Act 1958 (the Act), and contradictory to the Findings of the Tribunal at 134 where it stated that:
‘I accept that the applicant may have been reluctant to go into details about her situation at the time when she was interviewed in New Zealand…’
2. The Tribunal constructively failed to exercise jurisdiction and it’s decision is vitiated by jurisdictional error.
Particulars
(a) The Tribunal failed to consider the substance of my claims and application in that it failed to appreciate that I was claiming to be a refugee because I, personally, had come to the attention of the ANC Councellor who have vowed to kill me having killed my father and brother.
(b) The Tribunal failed to appreciate that the Convention definition of ‘refugee’ looks both to the individual circumstances prevailing in his or her country of nationality. The Tribunal failed to treat my case and application for review as one in which I had claimed to have been individually targeted by the ANC Councilor and the Ethiopian police and that both government authorities are unable to protect and prevent me from serious harm in the future, contrary to the authority and principle established in Craig v South Australia where the High Court stated:
‘If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision or the tribunal which reflect it.’
Likewise in Ex part Hebburn Ltd; Re Kearsley Shire Council, Jordan CJ states:
‘A constructive failure to exercise jurisdiction as occurring when a decision-maker misunderstands the nature of the jurisdiction which he or she is exercise and applies a wrong and inadmissible test or misconceive(s) his or her duty or fails to apply himself or herself to the question which the law prescribes or misunderstands the nature of the opinion which he or she is to form.’
3. The Tribunal made erroneous findings and came to mistaken conclusions in its decision on the face of the record.
Particulars
(a) There was no evidence before the Tribunal to support the finding and conclusion at 136 that I only visited Ethiopia for the birth of my daughter and returned to South Africa in breach of Section 430 of the Act.
(b) There was no evidence before the Tribunal to support the findings and conclusions at 140, 141, 142, 143 and up to and including 149 respectively in reach of Section 430 of the Migration Act.
4. The Tribunal failed to make necessary and relevant inquiry into critical facts the existence of which is easily ascertained in breach of Section 427(1)(d) and 424 of the Migration Act 1958.
Particulars
(a) It failed to invoke its power in section 424(1) and 427(1)(d) to seek additional information with regards to the SCARS on my body and failed to use the powers sourced from s.427 to inquire and investigate through medical process on Expert Forensic examination and report on the scars on my body given that this was a live issue at the hearing and one that goes to credibility of my claims of torture and brutality.
5. The Tribunal denied me procedural fairness and natural justice and failed to take into account relevant materials and considerations:
Particulars
(a) I informed and sought the approval of the Tribunal with regards to additional materials of documentation relevant to my claims in regards to my father’s death and cause of death at the hearing from the investigating police officer.
(b) I also sought and informed the Tribunal that I was going to provide the Tribunal with relevant documentation about the identity of family friend and the issue of my paternity as to whom my real father is as opposed to what the Tribunal finds.
(c) The Tribunal stated and refused me this request and opportunity that: it was not necessary for me to provide it with any other materials or documentation contrary to the provisions in Section 414, 415, 420, 424(1), 424A and 430 of the Migration Act 1958 (the Act).
[Errors in the original.]
The applicant also read an affidavit sworn by her on 15 May 2012 and filed with her initiating application. Relevantly, the affidavit was as follows:
“23. I requested and told the Tribunal that I will be filling (sic) and giving the Tribunal additional probative materials regarding the death of my father and how he did (sic) from the investigating police officer in charge of his murder, and also material documentary relevant evidence regarding who my pertanity (sic) and identity of my father as I have claimed in my application.
24. The Tribunal member refused me the opportunity to provide and produce these relevant critical material information relevant to my claims to be a refugee, stating that, it is unnecessary and that he does not require any further materials from me to make its decision.
25. The Tribunal therefore, denied me procedural fairness and natural justice and completely failed to have regards (sic) to relevant materials and considerations relevant to my claims to be a refugee and my application for protection visa.
26. Had the Tribunal given me the opportunity to submit these additional information it would have found that
(i) I am a refugee and in need of Australia’s protection;
(ii) That I have been telling the truth consistently as I have claimed regarding the identity and name of my parternal (sic) father and
(iii) That my father died when he was shot as a result of his candidacy for and to replace the sitting ANC Councillor.”
The solicitor for the first respondent, Ms Buchanan, cross-examined the applicant. The applicant agreed that the Tribunal had given her time at the end of the hearing to give any further response.
The applicant was invited to make submissions in support of each of the grounds and in support of the application generally.
Ground 1
Ground 1 appears to be a complaint about the Tribunal’s finding that the applicant was telling the truth to the New Zealand authorities in 2010 and preferred that evidence to the information given by her since her arrival in Australia in 2012 in support of her protection visa application. The applicant contends that that finding was contradictory to the Tribunal’s acceptance of the applicant’s evidence that she may have been reluctant to go into details about her situation at the time she was interviewed in New Zealand.
At the hearing, the applicant declined to make any submissions in support of ground 1.
The Tribunal’s decision record makes clear that it considered relevant the level of detail told by the applicant to the New Zealand authorities in relation to her work in South Africa. For example, the Tribunal noted that she had given the names and addresses of travel agents she had used. The Tribunal noted that when it asked her how she could have possibly done this if she had booked the ticket in Ethiopia, the applicant said that they had bought a ticket for her in South Africa.
The Tribunal also noted that it put to the applicant that it found it difficult to accept that if her persecution claims were true, she would not have said something to the New Zealand authorities, rather than attempting to maintain the pretence that she had only come to visit New Zealand. The Tribunal found that she had an opportunity to tell the authorities that she was running away from Ethiopia, rather than being put on a plane to leave that country.
The Tribunal found that the level of detail given by the applicant to the New Zealand authorities suggested to the Tribunal that she was telling the truth at that time.
Properly read, the Tribunal’s statement that it accepted that the applicant may have been reluctant to go into detail about her situation at the time when she was interviewed in New Zealand, does not contradict the Tribunal’s finding that it preferred to accept as accurate the information she had given to the New Zealand authorities. It is no more than a summary of the exchanges the Tribunal had with the applicant about its concerns in respect of this issue.
The Tribunal ultimately found that if what the applicant said in Australia about her fears of persecution was true, she would have said something to the New Zealand authorities even if it was not the full details of her situation rather than maintaining the pretence.
It was open to the Tribunal to find that the applicant’s evidence to the Tribunal was inconsistent with what she had told the New Zealand authorities. Further, it was open to the Tribunal to find that inconsistency adversely affected the applicant’s credibility. The Tribunal’s findings were open to it on the materials and evidence 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).
To the extent that ground 1 alleges a breach of s.430 of the Act, no such breach is made out.
Accordingly, ground 1 is not made out.
Ground 2
Ground 2 appears to assert that the Tribunal failed to consider the applicant’s claim that she had come to the attention of the ANC Councillor who had threatened to kill her and her father and brother and that she feared harm from that person; and that the authorities in Ethiopia are unable to protect her.
In support of ground 2, the applicant said that the Tribunal did not ask her much about her case and concentrated on what had happened in New Zealand. The applicant said that the Tribunal did not give her a chance to say anything apart from talk about New Zealand. A fair reading of the Tribunal’s decision record does not support those complaints.
There was no transcript of the Tribunal hearing provided to this Court, nor did the applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 14 June 2012, the applicant was given an opportunity to file a transcript of the Tribunal hearing. The applicant was also directed to give notice if she wished to rely on recordings of the hearing. However, no step was taken by the applicant to rely on any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the applicant and exchanges it had with the applicant at the Tribunal hearing. The Court is entitled to accept the Tribunal’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing, in the absence of any evidence to the contrary (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).
However, a fair reading of the Tribunal’s decision record makes clear that the Tribunal explored the applicant’s claims with her at the hearing; understood that the applicant had claimed that the ANC Councillor had sworn to kill her and each member of her family; and that, since she had been in Ethiopia, the ANC Councillor was looking for her and her son to kill them. The Tribunal also noted that it put to the applicant concerns about her evidence that may cause it to reject her claims on credibility grounds.
Ultimately, the Tribunal was not satisfied that the applicant’s father was killed in 2003 in the circumstances claimed by the applicant or that her brother was killed in 2005 as claimed. The Tribunal also did not accept that the applicant had to leave South Africa with her son in 2005 because the ANC Councillor had threatened to kill her and her family.
At the heart of the Tribunal’s adverse credibility findings was the failure by the applicant to satisfy the Tribunal’s concerns about the inconsistencies in the information given by the applicant to the New Zealand authorities with her refugee claims made in Australia. The Tribunal also found the applicant’s refugee claims in Australia in respect of the activities of the IFP and ANC to be inconsistent with country information before the Tribunal. The Tribunal noted that it put this country information to the applicant and noted the applicant’s comments.
Having regard to country information before it, the Tribunal was not satisfied that the applicant and her family would not be protected by authorities in the area where they lived.
It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
The Tribunal considered the applicant’s claims that she would be killed by the ANC because of her father’s and brother’s political involvement with the IFP. However, the Tribunal found that there was not a real chance that the applicant would face persecution from the ANC for reasons of her imputed political opinion or her membership of a particular social group. The Tribunal also considered whether the applicant would be persecuted in Ethiopia because she was the mother of a child of rape and of a child who was foreigner. The Tribunal also went on to consider the applicant’s post hearing submissions that she would face persecution as a single woman, living in a rural area, facing a high maternal mortality rate. After consideration of all of the applicant’s claims, the Tribunal was not satisfied that any of the claims advanced by the applicant were truthful.
It is well established that where the Tribunal has found that the applicant does not have a well-founded fear of persecution, then there is no requirement for the Tribunal to proceed to consider if there is effective state protection for the applicant (Minister for Immigration v Khawar (2002) 210 CLR 1 and Siaw v Minister for Immigration and Multicultural Affairs [2001] FCA 953 at [9] per Sundberg J). In the circumstances of the case before this Court, the Tribunal was not satisfied that the applicant was a refugee as claimed and rejected comprehensively her claims made in support of her protection visa application.
As stated above, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.
In the circumstances, the applicant’s complaints in ground 2 appear to be no more than a disagreement with the Tribunal’s findings. Such complaints invite merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
Accordingly, ground 2 is not made out.
Ground 3
Ground 3 appears to contend that there was no evidence to support the Tribunal’s finding that the applicant only visited Ethiopia for the birth of her daughter and returned to South Africa, and that the Tribunal made certain other findings in breach of s.430 of the Act, thereby committing jurisdictional error.
At the hearing, the applicant had nothing to say in support of ground 3.
Section 430 of the Act requires the Tribunal to set out its findings and the evidence and material that relate to those findings only (s.430(1)(d) of the Act). However a failure to comply with this section will not necessarily lead to a finding of jurisdictional error (Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [68] per McHugh, Gummow and Hayne JJ); Xu v Minister for Immigration & Multicultural Affairs (1999) 95 FCR 425 at [17]; and Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [70] per McHugh J).
In this case, the Tribunal made a number of factual findings based on various pieces of evidence. As stated above, the Tribunal’s findings were open to it on the material and evidence and for the reasons it gave, including its adverse credibility findings and its comprehensive rejection of the applicant’s claims made in support of her protection visa application.
The only finding specifically challenged by the applicant in ground 3 is the finding that she visited Ethiopia for the birth of her child before returning to South Africa. The Tribunal found that the applicant lived in South Africa rather than Ethiopia, including at the time of her daughter’s birth. The Tribunal found that the applicant had visited Ethiopia for the birth of her daughter but had then returned to South Africa. As stated above, those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave.
Otherwise, ground 3 challenges the merits of the Tribunal’s decision. As stated above, this Court has no power to engage in merits review.
Accordingly, ground 3 is not made out.
Ground 4
Ground 4 appears to assert that the Tribunal should have investigated the source of the scars on the applicant’s body and that the Tribunal’s failure to do so was a breach of ss.424 and 427 of the Act.
Section 424 of the Act provides that the Tribunal may get any information that it considers relevant. Section 427 of the Act provides that the Tribunal may arrange for the making of an investigation or medical examination.
However, there is no legal obligation for the Tribunal to consider whether it should exercise its permissive powers under ss.424 and 427 of the Act (see WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277 at [21], [24] and [25] per Heerey, Nicholson and Mansfield JJ; VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 at [27] per Crennan J; and W389/01A v Minister for Immigration and Multicultural Affairs (2002) FCR 407 at [74]-[78] per Nicholson J).
It may be that, in certain circumstances the Tribunal may be obliged to make some further investigation (see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per the Court; and NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528 at [18]-[21] per Jacobson J).
However, there is no general obligation on a Tribunal to investigate an applicant’s claims. The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire. Moreover, there is no obvious failure by the Tribunal in the case before this Court to make an obvious enquiry about a critical fact, the existence of which is easily ascertained. As stated above, none is identified by the applicant.
In the particulars in support of ground 4, the applicant asserts that if the Tribunal had investigated the scars on her body, it would have supported the applicant’s credibility and claims of the torture and brutality she claimed to have suffered. In fact the Tribunal’s decision record suggests that the only request made by the applicant to the Tribunal was that the Tribunal look at her scars.
In any event, the Tribunal accepted the applicant’s evidence that she had scars on her body, however, the Tribunal was not satisfied as to the source of the scars. There was no other evidence before the Tribunal to suggest that any particular investigation, medical examination or additional information would have established the origin of the applicant’s scars.
In the circumstances, it does not appear that there was any request made pursuant to ss.424 or 427 of the Act. The request was that the Tribunal look at the applicant’s scars and the Tribunal declined. To the extent that such a request is capable of amounting to a request to obtain additional information or a request that the Tribunal conduct any further investigation, for the reasons above, the Tribunal’s decision to take no further action is without jurisdictional error.
In the circumstances, there was no error by the Tribunal in failing to make any further investigation or enquiry in relation to the scars which it accepted the applicant bore.
It is for the applicant to satisfy the Tribunal, being the relevant decision-maker, that she meets the criteria for being a refugee. If the Tribunal, as the relevant decision-maker is not so satisfied, pursuant to s.65(1) of the Act, the applicant must be refused a protection visa.
Accordingly, ground 4 is not made out.
Ground 5
Ground 5 asserts that the Tribunal denied the applicant procedural fairness in failing to give the applicant an opportunity to provide further material in support of her claims.
The Tribunal stated in its decision record as follows:
“121. I explained to the applicant that, as I had mentioned earlier, she was entitled to seek additional time to comment on, or to respond to, the information I had given her in the course of the hearing. I gave her until 23 April 2012 to give her the opportunity to talk to her representatives and to make any further comments or response she wished to make. In the event nothing further was received.”
As stated above, in cross-examination in respect of her affidavit, the applicant agreed that she had in fact been given this further opportunity by the Tribunal.
There is no evidence before the Court to suggest that the applicant sought any further time beyond that given to her by the Tribunal to obtain any such further information or that such request was refused.
Accordingly, ground 5 is not made out.
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the applicant matters of concern it had about her evidence and noted the applicant’s responses. The Tribunal also identified independent country information to which it had regard. The Tribunal also put to the applicant independent country information before it and invited the applicant to comment upon it. 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-five (95) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 14 September 2012
0