SZRPQ v Minister for Immigration

[2013] FCCA 200

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRPQ & ANOR v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 200

Catchwords:
MIGRATION – Refugee Review Tribunal – challenge to Tribunal’s refusal to call certain witnesses – alleged failure to take claim seriously.

Legislation:
Migration Act 1958 ss.91R, 361(3)

Cases cited:
Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin (2005) 88 ALD 304; [2005] FCAFC 118

First Applicant: SZRPQ

Second Applicant: SZRPR (BY HER LITIGATION GUARDIAN)

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 1445 of 2012

Judgment of: Judge Riley

Hearing date: 3 May 2013

Date of last submission: 3 May 2013

Delivered at: Melbourne

Delivered on: 28 May 2013

REPRESENTATION

Counsel for the First Applicant: The first applicant appeared in person

Solicitors for the First Applicant: The first applicant was not represented

Counsel for the Second Applicant: The second applicant appeared by her litigation guardian

Solicitors for the Second Applicant: The second applicant was not represented

Counsel for the First Respondent: Emily Latif

Solicitors for the First Respondent: Clayton Utz

Counsel for the Second Respondent: No appearance

Solicitors for the Second  Respondent: Clayton Utz

ORDERS

1. The application filed on 2 July 2012 be dismissed.

2. The applicant pay the first respondent’s costs, fixed in the sum of $6,471.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

SYG 1445 of 2012

SZRPQ

First Applicant

And

SZRPR (BY HER LITIGATION GUARDIAN)

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision of the Refugee Review Tribunal.  The first applicant (“the applicant”) is a 40 year old citizen of India.  The second applicant is her six year old daughter. 

2. The applicant arrived in Australia on 28 March 2008 on a student visa.  She applied for a protection visa on 26 August 2011, one month before her student visa was due to expire.  A delegate of the first respondent refused the protection visa application on 16 January 2012.  The applicant filed an application for review by the Tribunal on 8 February 2012.

The applicant’s claims

1. The applicant claimed that:

   a)she was born in Nadiad in Gujarat, India;

   b)she is middle class and Catholic;

   c)she is a registered nurse and midwife;

   d)she entered into an arranged marriage on 29 December 1998;

   e)her family paid a dowry to her husband’s family;

   f)after the wedding, she lived with her husband at his father’s house;

   g)during the marriage, she was physically assaulted and verbally and emotionally abused by her husband;

   h)her father in law caused her physical and emotional “torture”;

   i)in 1999, she went with her husband to Kenya, where he was employed;

   j)in 2001, on a visit to India, she reported the husband’s assault on her to the police;

   k)she told the police about her husband’s family;

   l)she later learned that her husband’s family is well connected with a local politician and her father in law is a community leader;

   m)the policeman refused to make a report;

   n)the policeman told her that her complaint was a family matter and she had to learn how to settle this with her husband and his family and respect men;

   o)in 2002, she went to Papua New Guinea to work as a nurse and her husband went with her;

   p)she became pregnant and her husband forced her to have an abortion;

   q)in 2004, they went on a holiday to India but the husband would not allow her to see her family, even though her father had recently had bypass surgery;

   r)in 2005, she became pregnant again;

   s)the husband alleged she was carrying another man’s child;

   t)she had the baby;

   u)in 2008, she and her husband and daughter came to Australia on a student visa;

   v)the husband continued to physically and mentally abuse her and her daughter;

   w)in May 2010, she was accused of having an affair;

   x)the husband’s father, over the telephone, threatened her with death if she left her husband;

   y)the husband’s brother, over the telephone, threatened her with death if she returned to India, because of her alleged affair;

   z)in October 2010, the husband’s father went to her family home in India and threatened her family because of the alleged affair;

   aa)she and her husband are now separated;

   bb)she is living in a refuge;

   cc)on 22 July 2012, she obtained a final apprehended violence order against her husband;

   dd)she has attended four counselling sessions;

   ee)she is seeking income support through the Red Cross;

   ff)she has filed proceedings in India to recover her dowry;

   gg)her husband and her family may kill her because she has sought to recover her dowry;

   hh)the husband and his family want to take her daughter;

   ii)the husband is now living in Papua New Guinea with another woman; and

   jj)the husband’s family in India has spread bad words about her and her family has been boycotted in their local community.

The Tribunal’s decision

1. The Tribunal considered that:

   a)the applicant’s husband had physically assaulted the applicant and her daughter;

   b)the husband’s previous threats were empty;

   c)he no longer has any interest in the applicant;

   d)there is not a real chance that he or his family would harm the applicant or her daughter if they were to return to India;

   e)any taunts and insults that might be directed to the applicant or her family would not amount to serious harm within the meaning of s.91R of the Migration Act 1958;

   f)any social isolation or ostracism that the applicant might face would not amount to serious harm as defined, especially as, on her own evidence, she had numerous friends and relations in India who support her;

   g)country information indicates that there have been murders in India relating to dowry issues;

   h)however, in the present case, any dowry issues could be resolved through the legal system in India;

   i)there was not a real chance of the husband or his family harming the applicant because of her separation or related matters;

   j)the husband did not have political connections and, even if he did, he would not use them or any social or criminal connections to harm the applicant;

   k)given that the husband and his family had sought to have minimal contact with the applicant’s daughter, there was not a real chance that they would take her from the applicant;

   l)the applicant does not have a well-founded fear of persecution for a Convention reason;

   m)in relation to complementary protection, the applicant did not face a real risk of significant harm, as defined, for the reasons it had previously stated;

   n)the negative attitudes and taunts that the applicant feared did not amount to torture or cruel or inhuman or degrading treatment or punishment as defined; and

   o)consequently, the complementary protection provisions were not engaged.

Grounds in the application and supporting affidavits

1. The applicant is unrepresented.  The grounds of review set out in the application filed on 2 July 2012 are:

   1.     I am a genuine refugee[.]

   2.As a woman it is difficult to save my life.

   3.As a helpless mother, its (sic) hard to save me and my child’s life.

2. These grounds patently seek merits review.  This court is not permitted to reconsider the merits of a matter determined by the Tribunal.  This court is only permitted to review a matter on the grounds of jurisdictional error.  The grounds in the application do not point to any particular error on the part of the Tribunal, let alone a jurisdictional error.  These grounds are not made out.

3. The applicant’s application to this court was supported by an affidavit sworn on 25 June 2012.  It says:

   1.     I am a genuine refugee.  Involved and victim of D.V. 

   2.     Woman and child at life risk and threatneng (sic).

4. The affidavit sworn on 25 June 2012 seeks merits review.  The affidavit sworn on 25 June 2012 does not tend to substantiate any jurisdictional error. 

5. The applicant also filed an affidavit sworn on 2 August 2012.  It consists of a document entitled, “Explanation on Statement of Decisions and Reason”.  That document is perhaps best described as a submission in relation to both the delegate’s and the Tribunal’s decisions.  It largely challenges the delegate’s and the Tribunal’s decisions on the merits.  As explained above, this court is not permitted to reconsider the merits of a decision made by the Tribunal.  The affidavit sworn on 2 August 2012 also alleges bias on the part of the delegate.  Even if there had been bias on the part of the delegate, the Tribunal’s review of the case provided a rehearing of the matter.  In any event, this court is not able to review the delegate’s decision.

6. The affidavit sworn on 2 August 2012 also alleges that the Tribunal misunderstood and misinterpreted various aspects of the applicant’s evidence.    Even if the Tribunal made an error of fact about a matter, this court is not able to correct it, unless it amounts to a failure to consider a claim.  I do not understand the applicant to allege that the Tribunal failed to consider a claim.  Consequently, I am unable to take this point any further.

7. The applicant attached to her affidavit sworn on 2 August 2012 a large bundle of documents.  This court is not able to consider new evidence, unless it demonstrates that a jurisdictional error was made by the Tribunal.  It does not appear that anything in the bundle of documents demonstrates a jurisdictional error.  Rather, the bundle of documents seems to be intended to support a challenge to the Tribunal’s decision on the merits.  As such, I am not able to take that material into account.

Additional grounds raised at the hearing

1. At the hearing before this court, the applicant orally raised two further grounds of review, namely, the Tribunal’s failure to call witnesses and the Tribunal’s failure to take seriously the applicant’s claim that her husband or his family would kill her and her daughter if they returned to India.

a.       failure to obtain oral evidence from two witnesses

1. In her response to the Tribunal’s hearing invitation (CB252-3), the applicant asked the Tribunal to obtain oral evidence from two witnesses, her mother and a family friend.  The Tribunal declined to call them.

2. Subsection 361(3) of the Migration Act 1958 provides that, where an applicant has given the Tribunal notice that he or she wants the Tribunal to obtain oral evidence from a person or persons named in the notice:

   the Tribunal must have regard to the applicant’s notice but is not required to comply with it.

3. That provision was considered by the Full Court of the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin (2005) 88 ALD 304; [2005] FCAFC 118. In their joint judgment, Kenny and Lander JJ, with whom Spender J agreed, said:

   36The provisions of Pt 5 of the Act, including ss 361(3) and 366D, emphasise that the Tribunal’s process is essentially inquisitorial in nature. A review by the Tribunal is not to be conducted on the adversarial model of the courts. Under the regime established by the Act, it is for the Tribunal, not the applicant, to gather the evidence for the purposes of a review and to decide the manner in which the evidence will be taken. The use of the word "obtain" in sub-ss 361(2) and (2A) must be understood in this context. In this context, it is the Tribunal, and not the applicant, who "obtains" or "acquires" the evidence for the purposes of a review, whether or not the evidence is volunteered or compulsorily acquired. Unlike a court, the Tribunal does not "receive" evidence from a party to the proceeding. Only the Tribunal can examine a witness whose oral evidence the Tribunal has determined to obtain. On the respondents’ construction, the Tribunal would lose control of a function that defines its inquisitorial character. One may illustrate this by the example discussed in the argument of the appeal. If, for example, there were a hundred witnesses to a ceremony of marriage and an applicant gave notice that he wanted to call them all – to establish that he had been through the ceremony – then, assuming this was a relevant fact and they all attended the hearing, on the respondents’ argument, the Tribunal would be obliged to hear from all hundred witnesses. Plainly enough, this would deny the Tribunal’s inquisitorial nature and defeat the objectives set out in s 353(1) of the Act.

   37It is in keeping with the Tribunal’s inquisitorial nature that the Tribunal does not err if it decides that, notwithstanding the applicant wants oral evidence to be obtained from persons named in a notice under s 361(2), it decides not to obtain such evidence, always providing that it acts in conformity with s 361(3) of the Act and has regard to the notice that the applicant has given. In this circumstance, there is no obligation on the Tribunal to take oral evidence from anyone other than the applicant.

   38 It does not follow from this, however, that the appeal in this case should be upheld. By virtue of s 361(3), the Tribunal is obliged to have regard to any notice given by an applicant under sub-ss 361(2) or (2A) of the Act. This means that the Tribunal must genuinely apply its mind to the contents of the notice and, in particular, to the question whether it should take the oral evidence of the nominated individuals in accordance with the applicant’s wishes. The Tribunal must not merely go through the motions of considering the applicant’s wishes as expressed in the notice. As the respondents’ counsel said, the authorities establish that the invitation to appear before the Tribunal must be "real and meaningful and not just an empty gesture": NALQ at [30]; SCAR at [37]; and Mazhar at 188 [31]. It follows that the consideration that the Tribunal gives to the wishes of the applicant concerning the evidence to be taken at the hearing must also be genuine. The Tribunal must not decline to comply with the applicant’s wishes capriciously, but must take account of such relevant matters as the relevance and potential importance to the outcome of the review of the evidence that could be given by a nominated witness (compare W360/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 211 ("W360/01A") at [2] per Lee and Finkelstein JJ and [30]-[32] per Carr J)), the sufficiency of any written evidence that has already been given by a witness, and the length of time that would afford the applicant a fair opportunity to put his or her case before the Tribunal. These considerations flow from the nature of the Tribunal’s overarching objective, which is to provide a review that is "fair, just, economical, informal and quick": see s 353(1). The Tribunal must bear in mind this statutory objective when considering the weight to be given these matters.  (emphasis added)

   39 The real question in this case is whether or not the Tribunal gave genuine consideration to the notice given by MrMaltsin under s 361(2) of the Act. …

   …

   47… The Tribunal conducted the hearing with an eye principally on the clock, and the transcript shows that the Tribunal limited the taking of oral evidence as it did solely because the Member ran out of time. The Tribunal did not in fact limit the taking of oral evidence by reference to such relevant considerations as the importance of the proposed evidence for the review, or the time the applicant might reasonably require fairly to put his case. It follows that the Tribunal did not genuinely give regard to the notice that Mr Maltsin gave under s 361(2) of the Act. It therefore acted in breach of its obligation under s 361(3) of the Act.

4. In the present case, the applicant said on the response to hearing invitation form that:

   a)her mother would give evidence to the effect that:

   Our community torturing to my family.  My family lost reputation.  Community bad behaviour my parents do not go to church on our region; and

   b)her friend would give evidence to the effect that:

   He was presented several time in family gathering when my ex husband was abusive to me and threatening me.  He also knows our community how they mental torture us.

5. During the hearing before the Tribunal, the applicant explained that, by “torture”, she meant that people at her parents’ church asked them if they had any right to worship there and talked about how the applicant had behaved.[1] 

   [1] Paragraph 62 of the Tribunal’s reasons for decision.

6. The Tribunal said at paragraph 41 of its reasons for decision, in its summary of the hearing before it, that it had arranged an interpreter for the applicant’s mother to give evidence at the hearing.  However, later in its summary of the hearing before it, at paragraphs 72 and 73 of its reasons for decision, the Tribunal said the following:

   72The Tribunal referred to the 2 people she had listed as witnesses. In regard to her mother, the Tribunal was told that her mother is at the British Consulate to obtain a visa for London to visit her son, the applicant’s brother, at the same time as the hearing and may not be available if she has to switch of (sic) her mobile phone. The Tribunal referred to the description of the evidence that she had indicated would be provided by her mother and confirmed with the applicant that her mother would have given evidence about her parents’ circumstances in Nadiad, where they live, and noted that it had before it two emails referring to her parents being called bad words by her in laws and others in the community. The Tribunal asked if her evidence would be similar to the emails that it had before it about her in-laws and people talking bad about her and of them. The applicant said that this was the case. The applicant said in relation to the email from her mother dated 8 November 2011 which states that they feel guilty as they are not able to give any money because they are retired and also refers to her in-laws and people talking bad about her and of them and that they do not go out only when they want to buy something or if they have any work that it was written with the help of friends of the family as she does not write in English. She said previous emails were translated, they communicate sometimes by email and sometimes through the phone using Gujurathi. They speak once a week. She told the Tribunal that her parents started having problems since last year around Easter time. It became more serious from then. Previously they had problems with her in laws, as there were internal problems between her in laws and her parents. She has a very big family – her immediate family is her parents and brother but she has an extended family. The problem is between the 2 families, her extended family being her aunty and uncles and his aunty and uncles, and small points become big issues. During festivities or marriages and rituals that took place they had to exchange gifts. They were taunting her family and saying that they had not looked after their family; these problems have existed since 2000. Other relatives of hers are married to her ex-husband’s relatives so there are internal connections between the families.

   73The Tribunal decided not to take oral evidence from the other witness, a family friend, in Queensland as the description of his evidence was that he was present when her ex-husband was abusive to her and threatening her and that he also knows about their community of which evidence had already been provided in the form of a petition.

1. The Tribunal did not actually say so, but it apparently decided not to obtain evidence from the applicant’s mother because the evidence she was expected to give had already been provided in the form of emails.  Similarly, the Tribunal decided not to obtain evidence from the friend because the evidence he was expected to give had already been provided in the form of a petition signed by about 70 people (CB115 to 135). 

2. As was implicit in the wedding ceremony example given in paragraph 36 of Maltsin, the Tribunal, in the exercise of its function under s.361(3) of the Act, can properly decline to obtain evidence that merely repeats other evidence. On the other hand, there are cases in which the same evidence being given by a number of different witnesses adds to the credibility of that evidence.

3. The question for the court is whether the Tribunal genuinely considered the request to obtain evidence from the applicant’s mother and friend, bearing mind such matters as the importance of the evidence to the case and the sufficiency of other evidence given in the case.

4. In the present case, the Tribunal evidently decided that the other evidence given in the case in the form of the emails and the petition, and the applicant’s own evidence, was sufficient.  Moreover, the Tribunal accepted the evidence that the applicant’s mother and friend were expected to give.  That is, the Tribunal accepted the evidence that:

   a)some members of the applicant’s community in India had negative attitudes to the applicant and her family;

   b)the applicant’s parents had experienced negative attitudes and “bad words”, as the applicant described it, from members of their community; and

   c)during the marriage, the applicant’s husband had been abusive and threatening towards her. 

5. Although the Tribunal accepted those matters, the Tribunal did not accept that the negative attitudes and words constituted serious harm within the meaning of s.91R of the Act and did not accept that the husband or his family would inflict physical harm on the applicant or members of her family in the future.

6. However, it is clear that the Tribunal did give genuine consideration, as explained in Maltsin, to the applicant’s request to obtain evidence from her mother and her friend.  There was no jurisdictional error in the Tribunal to declining to obtain evidence from them.  This ground is not made out.

b.       failure to take claim seriously

1. The applicant submitted that the Tribunal did not take seriously what she said about her husband’s threats to kill her and her daughter if they return to India. 

2. The Tribunal’s decision is long and detailed.  It runs to 24 pages.  The Tribunal’s summary of the applicant’s initial claims is contained in paragraphs 34 to 37 of the reasons for decision.  The Tribunal’s summary of the claims made at the hearing is contained in paragraphs 41 to 79 of the reasons for decision.  The Tribunal’s summary of the documents provided after the hearing is set out at paragraphs 80 to 84 of the reasons for decision and runs to four pages.  These summaries appear to be careful and detailed. 

3. More particularly, the Tribunal noted at paragraph 59 of the reasons for decision that the applicant claimed that if she returned to India, her parents in law might kill her and her ex-husband will kill her, and noted at paragraph 63 of the reasons for decision that the applicant thinks they will kill her. 

4. The Tribunal dealt with these claims at paragraphs 88 to 90 of its reasons for decision.  Those paragraphs are as follows:

   88.The applicant claimed that her husband has verbally threatened her and he will seek revenge because she had reported him to the police in Australia and also had his visa cancelled by immigration. The applicant presented various internet articles about husbands killing wives in India and even an incident in Pakistan. The Tribunal accepts that there are incidents of husbands killing wives in India but, on the information before it, does not accept that there is a real chance that her husband will kill her for the reasons given below. In support of her claim that he would seek to kill her, she claims that he was physically violent towards her during their marriage and also hurt their daughter and that he is a heavy drinker and chews tobacco. The applicant has presented photographs of her daughter’s arm with a scar stating that it was caused by her former husband, but as there is no independent evidence of how this was caused and the incident was only raised for the first time after the hearing, the Tribunal does not accept that it was caused for the reasons claimed. The Tribunal is prepared to accept that he has previously attempted to hurt the applicant physically and that he may have slapped their daughter on the face and scratched her cheek with his nail in April 2011. (emphasis added)

   89.While the Tribunal accepts that the applicant may genuinely believe that her husband and/or his family are interested in harming her, it has serious doubts that her husband has any interest in the applicant as she told the Tribunal that her husband left Australia last year and is currently living in PNG with another woman who he is in a relationship with. The Tribunal is of the view that he has shown little interest in the applicant after their claimed separation other than sending 3 invitations since July 2011 to her email address from social networking sites to be “friends”, and he did not even tell her, or their daughter, that he was departing Australia. The applicant only found out that he was not in Australia at the department interview, a couple of weeks after he had departed, when the delegate told her. Even when he was in Australia, when they had contact after the claimed separation because of their daughter, the applicant claimed that nothing more than verbal threats occurred. Whilst the Tribunal acknowledges that there was an AVO in force and this may have led to a modification of his behaviour while in Australia post separation, having regard to the totality of the circumstances, the Tribunal’s view is that any threats to harm or kill her were empty threats related to the acrimonious nature of their relationship and finds that he does not have any level of interest in the applicant which would result in her being killed or physically harmed in any way. It does not accept that there is a real chance that the applicant will be killed by her husband or harmed in a way that would amount to serious harm, if she were to return to Nadiad, India. The Tribunal notes that the applicant’s evidence is that her husband is in PNG but it finds that even if he were to return to India, there is no real chance that he would attempt to kill or otherwise harm her. Nor does the Tribunal accept that he would kill or harm their daughter. (emphasis added)

   90.In relation to harm from her husband’s family, the Tribunal also does not accept that they would seek to harm or kill the applicant or her daughter. The applicant’s evidence is that they have said “bad words” and spread rumours about her in the community and that her parents have been insulted, threatened and boycotted by their community and unable to attend Church because of the taunting they receive when they leave their house. She claims that her parents have medical conditions because her married life was struggling. The Tribunal accepts that her parents have experienced negative attitudes in the form of “bad words” from her in-laws and other parts of the community but does not accept that the applicant’s parents’ medical conditions have been caused by her failed marriage. The Tribunal finds that given what has happened to date; her husband’s family would not resort to physical harm. The Tribunal finds that verbal or written taunts or insults do not amount to serious harm for the purposes of s.91R(1)(b). The applicant claimed that her husband has political connections and his brothers have criminal contacts and that her in laws are socially and politically powerful however the Tribunal does not accept that her husband does have these political connections as he has not lived in India for many years and in any case, it does not accept that political or social connections or criminal contacts would be used to harm the applicant as claimed. (emphasis added)

5. These paragraphs demonstrate that the Tribunal did seriously consider the applicant’s claim that, if she returned to India, she and her daughter would be killed by the husband or his family.  The Tribunal clearly understood the claim that the applicant made and provided a rational basis for rejecting it. 

6. It appears that the applicant is dissatisfied with the result of the Tribunal’s deliberation.  However, as explained above, this court is not permitted to review the Tribunal’s decision on the merits.  The court can only set aside a decision on the basis of jurisdictional error.  The applicant has not pointed to any jurisdictional error in this case. This ground is not made out.

Conclusion

1. As none of the applicant’s grounds has been made out, the application must be dismissed with costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Riley.

Date:  28 May 2013