SZRSX v Minister for Immigration
[2013] FMCA 72
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRSX v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 72 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Fiji – Tribunal doubting the applicant’s claims and finding no Convention nexus in any event – no jurisdictional error. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.477 |
| Minister for Immigration v SZNPG [2010] FCAFC 51, (2010) 115 ALD 303 SZRSX v Minister for Immigration & Anor [2012] FMCA 915 |
| Applicant: | SZRSX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1843 of 2012 |
| Judgment of: | Driver FM |
| Hearing date: | 11 February 2013 |
| Delivered at: | Sydney |
| Delivered on: | 11 February 2013 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,471 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1843 of 2012
| SZRSX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (the Tribunal). A decision was made on 20 March 2012. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Fiji and had made claims of persecution based on alleged sexual assault and a lack of state protection.
The following statement of background facts relating to the applicant’s claims and the Tribunal decision on them is derived from the Minister’s submissions filed on 25 September 2012 in relation to an extension of time application, and the Minister’s final written submissions filed on 4 February 2013.
The applicant is a citizen of Fiji and arrived in Australia on 16 May 2011 as a holder of a tourist visa. On 12 July 2011, the applicant applied for a protection visa with her ex-husband applying as a member of her family unit[1].
[1] CB 1-55
In her protection visa application, the applicant claimed to fear returning to Fiji because:
a)while she was working as a salesperson, her supervisor sexually assaulted her and forced her to have sexual intercourse with him; and
b)her ex-husband has a history of physically abusing her and seriously "bashed" her when he found out about the sexual relationship with her supervisor.[2]
[2] CB 110, [23]
The applicant claimed that she could not relocate within Fiji because she is a woman and she would not be in a position to find another job and feed her children (who are currently in her mother's care). She also stated that she could not approach the police as the police in Fiji do not protect women.[3]
[3] CB, 110-111 [24]
The applicant was interviewed by a delegate of the Minister on 21 September 2011[4]. The delegate refused the applicant’s application on 30 September 2011[5], and notified her ex-husband that the delegate was not satisfied that he was a member of her family unit, and so he was not included in the decision relating to the applicant[6]. The applicant applied to the Tribunal for review on 20 October 2011, purporting to include her ex-husband as an applicant for review[7]. The applicant’s representative was informed by a Tribunal officer on 3 February 2012 that her ex-husband was not included in the review[8]. The Tribunal held a hearing on 15 March 2012[9].
[4] CB 62-63
[5] CB 65-83
[6] CB 84-85
[7] CB 87-90
[8] CB 98
[9] CB 113 [30]
At the Tribunal hearing, the applicant claimed not to fear her husband anymore, either in Australia or Fiji.[10] The applicant maintained that she feared returning to Fiji because of her supervisor. She claimed that the supervisor had "abused her a lot" and that he would kill her if she returned.[11] The applicant claimed the supervisor had forced her to have sex with him on numerous occasions from March 2009 to January 2011 and said he would kill her if she told anyone. She claimed that her husband found out about the relationship and warned the supervisor. She claimed that the supervisor was looking for her[12].
[10] CB 114 [33]
[11] CB 114 [33]
[12] see generally CB 113-115
The Tribunal found the applicant’s claims lacking in credibility, finding it implausible that the applicant would have a forced sexual relationship for two years without telling anyone, and that when she did tell her husband he would do no more than warn the supervisor[13]. The Tribunal also found that even if the applicant was threatened and abused by the supervisor as she claimed this was for personal reasons rather than any Convention reason, that any future harm from the supervisor would also not be for any Convention reason, and that the Fijian police would not withhold protection from the applicant for a Convention reason, and even if they failed to provide protection this would not be motivated by a Convention reason[14]. Accordingly the applicant was not a refugee[15].
[13] CB 118 [51]
[14] CB 118 [53]-[54]
[15] See similarly Minister for Immigration v SZONJ [2011] FCAFC 85, (2011) 278 ALR 608 at [33]
These proceedings began with a show cause application filed on 24 August 2012. There are three grounds in that application:
1. The Tribunal misunderstood my claims.
2. The Tribunal overlooked my fear and did not apply the law properly.
3. The RRT failed to accept my fear of harm as I belong to social group.
The application was filed some four months after the 35 day time limit prescribed by s.477(1) of the Migration Act 1958 (Cth) (Migration Act). On 27 September 2012 I granted an extension of time, pursuant to s.477(2) of the Migration Act[16]. One issue of concern to me at that time was the question of whether the Tribunal, or for that matter the Minister, had dealt lawfully with an application by the applicant’s husband who was originally included in the protection visa application as a member of the applicant’s family unit. I gave directions in relation to the matter on 27 September 2012. Those orders included an opportunity for the applicant to file and serve an amended application by 31 October 2012. She has not taken up that opportunity.
[16] see SZRSX v Minister for Immigration & Anor [2012] FMCA 915
The applicant asserts that the Tribunal misunderstood her claims. However, that is not borne out by the way in which the Tribunal summarised the applicant’s claims and dealt with them. Likewise I reject the contention that the Tribunal overlooked the applicant’s fear and failed to apply the law properly in relation to an assessment of that fear. I agree generally with the Minister’s submissions on the grounds of review.
There is no basis to suggest that the Tribunal misunderstood or overlooked any of the applicant’s claims, as opposed to doubting that they were true and finding that in any case they did not involve any Convention nexus. Similarly the Tribunal’s findings that no Convention nexus existed is contrary to the possibility that the reason for her claimed fear of harm or fear of lack of protection from the police could be motivated by her membership of any social group. A finding as to whether particular conduct is motivated by a Convention reason is a factual issue for the Tribunal[17]. The Court cannot review the merits of the Tribunal’s decision, and there is no error of law in the Tribunal making a wrong finding of fact[18].
[17] Ramirez v Minister for Immigration [2000] FCA 1000, 176 ALR 514 (FCA/FC) at [38], [43]; SZDJQ v Minister for Immigration [2006] FCA 533 (Bennett J) at [38]
[18] see Minister for Immigration v SZNPG [2010] FCAFC 51, (2010) 115 ALD 303 at [20] and cases there cited
It is plain from the Tribunal’s statement of reasons that the Tribunal understood the task that it had to perform. The Tribunal had some reservations about the applicant’s claims of past harm. Nevertheless, while the Tribunal entertained reservations about the credibility of the applicant’s claims the Tribunal proceeded at [53][19] of its reasons to consider those claims against the Convention. This brings me to the third ground in the application. The Tribunal found that there was no Convention nexus with the harm asserted or feared by the applicant. The Tribunal found that if what the applicant had alleged had occurred then that was for personal rather than Convention reasons.
[19] CB 118
It is certainly plausible that a factor in that past harm as asserted might have been the applicant’s gender. However, it was for the Tribunal to determine whether the applicant’s gender and her membership of a particular social group based upon that gender was an essential and significant reason for the harm. The Tribunal also considered whether, if she returned to Fiji the applicant would be refused protection from further harm by the Fijian authorities for a Convention reason. The Tribunal found that protection would not be so withheld.
It is implicit in the Tribunal’s reasoning at [54] of its reasons[20], that the Tribunal was satisfied that an essential and significant reason for any failure of State protection would not be the applicant’s gender or a particular social group based upon it. I accept that that reasoning was open to the Tribunal.
[20] CB 118
There remains the issue of the removal of the applicant’s former husband from the protection visa application by the delegate. The Minister’s submissions deal with that issue as well as an apparent “dob in letter” received by the Tribunal[21]. I accept that the Tribunal was correct in finding at [50] of its reasons[22] that the Tribunal had no decision before it to review in respect of the applicant’s ex-husband.
[21] About which I am satisfied there is no issue of jurisdictional error
[22] CB 117-118
In the absence of a decision by the Minister’s delegate in relation to the applicant’s former husband, the Tribunal was correct in finding that it lacked any jurisdiction to review the application in relation to him. I note from page 84 of the court book that when the Minister’s Department informed the applicant’s former husband of his removal from the application he was invited to lodge his own protection visa application. There is no application before the Court to review the decision of the delegate.
I conclude that the decision of the Tribunal is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I will so order.
In consequence of the dismissal of the application the Minister seeks an order for costs. The applicant was concerned that she have time to pay costs. The applicant told me that she is not working and that for at least for the time being she would be unable to pay the costs sought. I am nevertheless satisfied that costs in accordance with the Court’s scale have been reasonably and properly incurred on behalf of the Minister. I will not require the costs to be paid by any particular time.
I will order that applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,471 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 12 February 2013
2
5
0