SZRMN v Minister for Immigration and Anor
[2012] FMCA 1161
•4 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRMN v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1161 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether Refugee Review Tribunal considered all the applicant’s claims – whether the Refugee Review Tribunal considered all the consequences to the applicant resulting from her claims – whether Refugee Review Tribunal correctly applied the “real chance” test – no jurisdictional error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 474, Pt.8 |
| Levy v Minister for Immigration and Multicultural Affairs [1998] FCA 1666 |
| Applicant: | SZRMN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1089 of 2012 |
| Judgment of: | Emmett FM |
| Hearing date: | 4 December 2012 |
| Date of Last Submission: | 4 December 2012 |
| Delivered at: | Sydney |
| Delivered on: | 4 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms S Haddad |
| Solicitors for the Applicant: | Newman & Associates |
| Appearing for the Respondents: | Mr O Jones |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The proceeding before this Court, commenced by way of application filed on 18 May 2012, is dismissed.
The applicant pay the costs of the first respondent fixed in the amount of $5,300.
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 1089 of 2012
| SZRMN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Ex Tempore
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 20 April 2012 and handed down on the same day.
The applicant claims to be a citizen of Nepal and of Hindu faith (“the applicant”).
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the Applicant’s protection visa application claims and the decision of the delegate of the First Respondent (“the Delegate”) and a summary of the Tribunal’s review and decision.
Background
The applicant arrived in Australia on 14 October 2010 having departed illegally from Nepal on a false passport issued in the name of Goma Bhandara.
On 17 August 2011, the applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 8 December 2011, the Delegate refused the applicant’s application for a protection visa.
On 16 December 2011, the applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 20 April 2012, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 18 May 2012, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
In their written submissions in SZRLA v Minister for Immigration and Citizenship & Anor (SYG929/2012), Minter Ellison, the solicitors for the first respondent, attached a useful summary of the relevant legislative scheme. That summary is as follows:
“1. Under section 65(1) of the Act, the first respondent may grant a visa if he is satisfied of a number of matters, including that the prescribed criteria for the particular visa have been satisfied.
2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (Regulation 2.01 of the Migration Regulations 1994 (the Regulations) and to the Regulations).
3. Section 36(2)(a) of the Act provides that:
(2) A criterion for a protection visa is that the Applicant for the visa is:
(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
4. The 'Refugees Convention' is defined in section 5 of the Act as meaning the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. The 'Refugees Protocol' is defined in that section as meaning the Protocol relating to the Status of Refugees done at New York on 31 January 1967.
5. Subject to certain exceptions, provided for in section 36(3) of the Act, Australia has protection obligations under the Refugees Convention to persons who satisfy the definition of 'refugee' in Article 1 of the Refugees Convention. Article 1A(2) of the Refugees Convention defines a refugee as a person who:
owing to 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, is unable or, owing to such fear, is unwilling to return to it.
6. Section 36(2)(aa) of the Act provides that:
(2) A criterion for a protection visa is that the applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.
7. Under section 411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.
8. Relevantly, in conducting that review, the second respondent must comply with the natural justice hearing rule, the requirements of which are exhaustively stated in Division 4 of Part 7 of the Act (section 422B(1) of the Act). That Division contains sections 424A and 425, which provide that:
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.
425 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
9. Under section 474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under section 474(1)(a) of the Act, a privative clause decision is final and conclusive.
10. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.”
The applicant’s application for a protection visa
The applicant provided a statement in support of her protection visa application in which she made the following claims:
a)The applicant was married off at the age of 15 without the agreement of herself or her family.
b)Marriage was forced upon her by her husband’s family who had the backing of Maoists.
c)The applicant’s husband is 14 years older than the applicant.
d)Two months after her wedding, the applicant began to plan her escape whilst in Kathmandu. However the applicant’s husband had relatives in Kathmandu as well as Maoist connections and the applicant was never left alone.
e)The applicant’s family was aware that the applicant had been unable to show affection or acceptance towards her husband, although she bore him two children in 2003 and 2007.
f)During the marriage the applicant “encountered extreme hardship and violence”, including force that she described as rape.
g)The applicant’s brother attempted to have the marriage anulled. However neither the brother nor the police were able to assist the applicant in ending her marriage.
h)In 2010 the applicant’s brother provided her with a false passport which the applicant used to enter Australia on 14 October 2010.
The Delegate’s decision
The applicant was invited to attend an interview with the Delegate. The applicant did not attend the scheduled interview and did not contact the Department to advise them that there was a reason why she was unable to attend an interview.
On 7 December 2011, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom applicant has protection obligations under the Convention.
The Delegate found that the applicant’s claims were not based on Convention grounds and that she is not a refugee within the meaning of the Convention.
Further the Delegate was not satisfied that the applicant had substantiated her claims and, as she had failed to attend the scheduled interview, those claims were unable to be tested by the Delegate.
The Tribunal’s review and decision
On 16 December 2011, the applicant lodged an application for review of the Delegate’s decision with the Tribunal.
The applicant provided no further documents in support of her review application.
On 1 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 4 April 2012 to give oral evidence and present arguments.
On 4 April 2012, the applicant attended the Tribunal hearing with her migration agent and gave evidence.
The applicant restated her claims of having been forced into her marriage by her husband and that she did not wish to remain with him.
The Tribunal then explored the applicant’s claims with her including whether her husband was violent towards her. That exchange was summarised by the Tribunal in its decision record as follows:
“29. The Tribunal asked the applicant if her husband was violent towards her. She stated that there was “nothing like that”. The Tribunal commented that in her written statement she indicated that she was subjected to violence and sexual assault. The applicant stated that each time she and her husband had sexual relations she felt as if she was being raped because she did not wish to be in the marriage with him. She stated however that he was not physically violent towards her or force her to have sexual relations with him. The applicant later stated that her husband beat her when she tried to leave him. The Tribunal indicated to the applicant that she was contradicting her earlier evidence that her husband was not physically violent towards her. The applicant stated that it did not happen frequently so she did not mention it when she was initially asked. The Tribunal commented that the applicant appeared to be exaggerating her claims to enhance the application. She did not directly respond.”
The Tribunal referred to information from external sources that it identified relating to the status of women in Nepal, particularly women seeking a divorce. The Tribunal commented that recent developments in Nepal have made divorce more accessible to women and that women could now seek a divorce on the grounds of rape. However, the Tribunal noted that women continued to be stigmatised and disadvantaged by conservative elements in Nepalese society.
The Tribunal noted that nevertheless, women in Nepal “still face bleak prospects for life after marital dissolution”. The Tribunal commented that these developments came into force in 2010. The Tribunal put to the applicant that it would now be easier to seek a divorce from her husband than in 2004, when such an attempt had failed. The Tribunal also commented that the applicant appeared to have the knowledge, the determination and financial resources to seek a divorce.
The Tribunal noted the applicant’s evidence that she was reluctant to proceed with divorce because of the social stigma that would attach and that her husband would not permit it.
The Tribunal put to the applicant that her written claims of violence in her marriage appeared to have been fabricated in light of her oral evidence to the Tribunal. The Tribunal also put to the applicant that her husband’s cooperative approach to her decision to come to Australia for a year or two did not support her claim that he was seeking to confine and mistreat her. The Tribunal noted that the applicant did not directly respond.
At the conclusion of the hearing, upon request for the applicant’s advisor, the Tribunal gave the applicant two weeks for any further submissions. However no further submissions were provided.
The Tribunal noted that country information before it indicated that strong stigma attached to divorced women in Nepal and that they may find remarriage difficult in conservative rural communities.
The Tribunal accepted that the applicant’s marriage was not a happy one and that she wished to leave the marriage. However the Tribunal found that the applicant had exaggerated her claims to enhance her protection visa application and had fabricated her claims of sexual assault and violence by her husband.
The Tribunal found the applicant’s claims to have been forced into marriage to have been “contrived”.
The Tribunal found that the applicant could divorce her husband in Nepal despite inherent difficulties in doing so.
The Tribunal considered country information before it which indicated that divorced women in Nepal face ostracism. The Tribunal accepted that if the applicant pursued divorce in Nepal, she may suffer disapproval and ostracism in Nepalese society. However The Tribunal found that any disapproval or ostracism faced by the applicant would not amount to harm of such a nature or extent as to constitute persecution for Convention purposes.
The Tribunal referred to two examples where claimed harm was found not to amount to persecution. Those examples were in Levy v Minister for Immigration and Multicultural Affairs [1998] FCA 1666 (“Levy”) per Tamberlin J and Mataka v Minister for Immigration and Ethnic Affairs [1996] FCA 1503 (“Mataka”) per Lindgren J.
The Tribunal was not satisfied that the applicant faces a real chance of persecution in Nepal for a Convention reason.
The Tribunal also considered whether the applicant was at risk of significant harm under the complementary protection criterion and concluded that she was not.
Accordingly the Tribunal affirmed the decision under review.
The proceeding before this Court
The applicant was represented before this Court by Ms Haddad, of counsel.
Counsel for the applicant confirmed that she relied on the grounds contained in an application filed on 18 May 2012 as follows:
“1. The Tribunal appeared to accept from the applicant’s evidence that she was estranged from her husband in Nepal and wanted to divorce him and that there were children of the union and that she was of a low caste.
2. The Tribunal considered the applicant’s position if she were to return to Nepal as a divorcee or as an estranged spouse but considered that she would only face social ostracism and the odd look of askance but this would not amount to persecution. But paragraph 34 of the Tribunal noted that women “still face bleak prospects for life after marital dissolution”. The Tribunal did not go onto define what was meant by that expression but against a background of extreme poverty (Nepal being the poorest country on earth) the endangerment of physical life must be within its compass.
3. In so finding the Tribunal erred in its jurisdiction in that it failed to consider and weigh the evidence before it when it decided that the applicant would not face persecution and also failed to consider the social class into which she would fall if she were able to get a divorce. ”
Counsel for the applicant identified various findings of the Tribunal which she contended were not open to the Tribunal.
Counsel for the applicant referred to the Tribunal’s findings that the applicant’s claims of violence and sexual assault were fabricated. Counsel for the applicant submitted that in making these findings, the Tribunal had not given sufficient consideration to the applicant’s lack of education and the fact that she had never had a job.
However no such complaint was made to the Tribunal either by the applicant or by her advisor to suggest that the applicant was not able to participate in a meaningful way at the hearing for those reasons or any other reason.
The relevant passage upon which counsel for the applicant relies is referred to at paragraph 21 above in these Reasons.
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).
In the circumstances, it was open to the Tribunal to find that the evidence given by the applicant at the hearing that her husband had not been physically violent towards her or forced her to have sexual relations was inconsistent with her written claims to have suffered violence and rape in her marriage. The Tribunal put these inconsistencies to the applicant together with its concern that her claims were exaggerated and noted that she did not directly respond.
Ultimately, the Tribunal found the applicant’s claims to have suffered violence and rape in her marriage to have been fabricated.
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).
Counsel for the applicant submitted that in considering the consequences for the applicant of divorce in Nepal, it had considered only the social consequences associated with divorce and had failed to consider the possibility of economic hardship. Counsel conceded that there was no independent claim made by the applicant that she would suffer economic hardship following divorce.
The Tribunal’s decision record discloses that the applicant’s advisor submitted to the Tribunal that women in Nepal are reluctant to divorce because of the social stigma that would attach. The advisor stated that if the applicant returned to Nepal, she would have to see her husband and that he would be violent towards her if she refused to return to him. The Tribunal put to the advisor that the applicant’s evidence did not indicate that the applicant’s husband had a propensity towards violence and that there is now provision for women in Nepal to seek a divorce even if their husbands are opposed to it. No other reason or evidence for the applicant’s fear of harm following the divorce was provided to the Tribunal by the applicant.
Otherwise, there is nothing in the Tribunal’s decision record to suggest that the applicant feared economic hardship following the divorce. The applicant’s concerns were confined to social stigma that may attach to divorce. No other concern was articulated or squarely raised by the applicant.
The function of the Tribunal is to respond to the case that the applicant advances (Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 405 per Kirby J; SGBB v Minister for Immigration and Multicultural and Indigenous Affairs(2003) 199 ALR 364 at [17] per Selway J; NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [58]-[60] per Black CJ, French and Selway JJ).
The Tribunal’s decision record indicates that it carefully considered the country information before it that divorced women in Nepal face ostracism and accepted that the applicant may suffer “disapproval and ostracism from conservative elements in society” in Nepal if she pursued a divorce.
Counsel for the applicant referred to country information which indicated that women in Nepal may have bleak prospects of being able to support themselves or having people to depend on for support. However, there was no evidence before the court to suggest that the applicant was such a person. The Tribunal found that the applicant’s concerns appeared to be confined to disapproval and social ostracism. Those notions are a fair summary by the Tribunal of the harm feared by the applicant based on the applicant’s evidence to the Tribunal.
In the circumstances, it was not necessary for the Tribunal to consider whether there was a real chance whether the applicant would suffer economic hardship if she was to divorce.
Counsel for the applicant further submitted that in considering whether the applicant would suffer harm amounting to persecution, the Tribunal had regard to Levy and Mataka which were not relevant examples to the applicant’s claims. I do not accept Counsel for the applicant’s submissions in this regard. The Tribunal referred to the findings in Levy and Mataka where taunts, alienation and threatening phone calls by reason of an interracial marriage, and contemptuous conduct, including sneering and laughing, for progressive views did not constitute persecution for a Convention reason.
It was not necessary for the Tribunal to refer to the examples in Levy and Mataka, but there was no jurisdictional error in doing so.
It was a matter for the Tribunal to determine whether the difficulties that the applicant may face in Nepal if she divorced her husband, constituted persecution for Convention purposes. The Tribunal determined that they did not. That finding was open to the Tribunal on the evidence before it and for the reasons it gave.
In the circumstances the Tribunal’s finding that it was not satisfied that the applicant faces a real chance of persecution in Nepal for a Convention reason was open to it on the evidence before it and for the reasons it gave.
It is well settled that the country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
In the circumstances, the applicant’s complaints appear more to be a disagreement with the findings and conclusions of the Tribunal. 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).
The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] by North, Lander and Katzmann JJ:
“It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”
Counsel for the applicant further submitted that the Tribunal misquoted country information. The Tribunal stated in its decision record that:
“The Tribunal noted that women in Nepal “still face bleak prospects for life after marital dissolution.””
The country information referred to by the Tribunal stated as follows:
“Thus, divorced women may be forced to support themselves through economic hardship after a dissolved marriage a difficult task, given the lack of economic opportunities for divorced women in rural Nepal. They may also be ostracised from their natal families from which they typically move away to live in their husband’s homes upon marriage. In other words, they have bleak prospects of being able to support themselves or of having people to depend on for support.”
Plainly the Tribunal’s quote is not a direct quote from the country information. However, it appears to be a reasonable summary of that information. The solicitor for the first Respondent, Mr Jones submitted that the Tribunal was quoting itself rather than the country information. In any event, even if the Tribunal misquoted the country information, such a mistake does not amount to jurisdictional error where it is apparent the Tribunal has understood the gist of the country information.
Accordingly, none of the applicant’s grounds or further oral complaints made to the court this morning are 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 put to the applicant independent country information before it and invited the applicant to comment upon it. The Tribunal also identified independent country information to which it had regard. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding sixty seven (67) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 4 December 2012