SZTGR v Minister for Immigration
[2014] FCCA 1441
•1 August 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTGR v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1441 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution as a lesbian in Fiji – applicant not believed – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.65 |
| Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, (1990) 94 ALR 11; (1990) 21 ALD 1, [1990] HCA 33 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 SFGB v Minister for Immigration (2003) 77 ALD 402 SZRUE v Minister for Immigration & Anor [2013] FCCA 893, (2013) 136 ALD 401 |
| Applicant: | SZTGR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2157 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 7 July 2014 |
| Delivered at: | Sydney |
| Delivered on: | 1 August 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Mr T Silva |
| Solicitors for the Respondents: | Ms A Wong DLA Piper |
ORDERS
The application as amended on 5 December 2013 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2157 of 2013
| SZTGR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (Tribunal). The decision was made on 21 August 2013. 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 claimed a fear of persecution as a member of the particular social group of “lesbians in Fiji”. The following statement of background facts is derived from the Minister’s submissions filed on 27 June 2014.
The applicant is a female citizen of Fiji born on 3 September 1982.[1]
[1] Court Book (CB) 50
The applicant applied for a Protection (Class XA) visa on 14 June 2012.[2] Her claims were set out in a statutory declaration accompanying the application:[3]
a)the applicant claimed to fear harm in Fiji as she is a lesbian. The applicant alleged that she had been discriminated at work due to her sexuality and was harassed by her family and community;
b)the applicant made the following claims of past harm in Fiji:
i)she was beaten by her mother in 1999 after her mother discovered that the applicant had a sexual relationship with “Angela”;
ii)she was beaten and verbally abused around 2001-2003 by her mother and aunt;
iii)she was harassed by young Fijian boys and men in October 2011;
iv)she was assaulted on 27 April 2012 at the “temple”.
[2] CB 1-55
[3] CB 55
The applicant provided the following documents in support of her application:
a)Big Gay Weekend brochure;[4]
b)2012 Sydney Mardi Gras Certificate of Service;[5]
c)email from Sydney Gay and Lesbian Mardi Gras;[6]
d)document titled “Big Gay Weekend Talking Points”;[7]
[4] CB 62-63
[5] CB 64
[6] CB 65-66
[7] CB 67
The application was refused on 21 November 2012.[8]
[8] CB 68-88
The applicant applied to the Tribunal for review of the delegate's decision on 14 December 2012.[9]
[9] CB 89-113
The applicant gave oral evidence before the Tribunal on 20 August 2013. The Tribunal made its decision on 21 August 2013, affirming the decision not to grant the applicant a Protection (Class XA) visa.
The decision of the Tribunal
The Tribunal[10] was not satisfied that the applicant:
a)had, or was perceived to have the sexual orientation she claimed to have;
b)was, or had even been in a same sex relationship with a woman, or that she has any past or future intention or desire to be in a same sex relationship;
c)was perceived to be a lesbian in Fiji;
d)had experienced past harm or adverse treatment of any type on the basis of her claimed actual or perceived sexual orientation; or
e)faced any risk of any type of harm in Fiji in connection with her claimed sexual orientation or for any other reason in the reasonably foreseeable future.
[10] at [24] CB 139
The judicial review application
These proceedings began with a show cause application filed on 13 September 2013. The applicant now relies upon an amended application filed on 5 December 2013. There are four particularised grounds in that application:
(1) The Tribunal made jurisdictional error in that based on the hearing (A) there was no evidence for three of its findings and/or (B) it was unreasonable in making three of its findings shown below:
Particulars
(a) (CB 138 para. 21) – That the applicant has rehearsed her evidence about her relationship with Simran; and
(b) (CB 138 para. 21 & 22) That she offered little detail beyond that set out in her written claim in relation to:
(i) Relationship with Simran; and
(ii) Home invasion in October 2011.
(2) The Tribunal made jurisdictional error in that it did not complete its review.
Particulars
(a) It did not complete its review because it did not complete its fact finding process. The Tribunal when it thought that the applicant has rehearsed her evidence (CB 138 para.21) about a particular claim should have proceeded to test her evidence further to ascertain its truthfulness rather than leave it without asking her questions further.
(b) (CB 138 para. 21 & 22) – Similarly the Tribunal did not proceed to ask questions about the Simran relationship or the Home invasion for the applicant to answer before making a finding that she offered little further detail about them.
(3) The Tribunal has been Wednesbury unreasonable in making adverse findings against the applicant in that it took a contradictory approach to different aspects of the applicant’s evidence.
Particulars
Where there was perceived inconsistency between oral evidence and written evidence the Tribunal made adverse findings because of the inconsistency but where there was consistency dismissed them saying it offered little detail beyond that set out in her written claims or that the evidence was rehearsed whereas the Tribunal had the opportunity to ask for whatever details it wanted.
(4) The Tribunal misconstrued the applicant’s claims with regards to her treatment by the relatives
Particulars
At CB 136, in para. 14 of its decision the Tribunal misconstrued the applicant’s claim in that the applicant gave evidence that she does not attend family functions after being abused by relatives whereas the Tribunal stated in its decision that “she is still invited to family gatherings which she attended from time to time”. This impacted negatively on the Tribunal decision not to accept the applicant as a lesbian.
Only Ground 1 was pressed at the trial of this matter.
I have before me as evidence the court book filed on 3 October 2013 and the affidavit of the applicant made on 1 November 2013, to which is annexed a transcript of the hearing conducted by the Tribunal on 20 August 2013.
Both parties made written and oral submissions.
Consideration
The applicant takes issue with the Tribunal’s findings at [21] and [22] of its reasons:[11]
The Tribunal notes that, while the applicant’s evidence regarding her claimed relationship with a woman named Simran was largely consistent with her written claims, her oral evidence impressed the Tribunal as offering little beyond what was set out in her written claims, and in the context of the significant and cumulative concerns identified in the balance of the Tribunal’s considerations, impresses the Tribunal as rehearsed rather than reflecting the applicant’s recollection of her own true past experiences.
Similarly, her evidence regarding a claimed break in to her home in October 2011 and an attack while she was at a temple in April 2012, while largely consistent with her written claims, offered little detail beyond that set out in her written claims. Her oral evidence to the Tribunal regarding her contact with the police regarding her claimed treatment in Fiji also impressed the Tribunal as vague and changing. For instance, at one point she told the Tribunal that she had only ever sought police assistance on one accession, which was after the claimed break-in at her home in October 2011. However, only minutes later, when the Tribunal noted her written claims at paragraph 17 of her statutory declaration, referring to her telling the police that she was being called nasty names by people sitting on the road side, she offered that that was another occasion on which she had sought police assistance. Again, her evidence impressed the Tribunal as changing in accordance with the concerns being put to her by the Tribunal, rather than being a communication of past realities actually experienced by her.
[11] CB 138-139
It would be a mistake to read those paragraphs in isolation from the Tribunal’s reasons as a whole. At [10] the Tribunal said:[12]
As reasoned below, having had the opportunity to review all the evidence before it, including having discussed the applicant’s claims with her face-to-face for around three hours when she appeared before the Tribunal on 20 August 2013, the applicant’s evidence impresses the Tribunal as hesitant, vague, changing and inconsistent in so many significant respects that the Tribunal is unable to be satisfied of the truth or credibility of even the most fundamental of her past circumstances in Fiji, such as where she attended high school for four to five years in Fiji and when she last lived with either of her parents. She gave no evidence of having any issue of capacity impacting her ability to recall such information, although she did refer to being young at the time she first left home and when her parents left Fiji, which the Tribunal has taken into account, where relevant, below.
[12] CB 135
Further, at [13] the Tribunal said:[13]
Despite the above, her oral evidence to the Tribunal reveals multiple and significant changes and inconsistencies, including inconsistencies with her written claims, and as put to her under section 424AA, with oral information she had previously given the department, detailed further below. She was unable to provide any plausible explanations as to the why such inconsistencies and changes arose in her evidence, leaving the Tribunal unable to be satisfied of the truth of significant aspects of her claimed circumstances, including her claimed sexual orientation.
[13] CB 136
At [15] and [16][14] the Tribunal expressed concern about the difficulty the applicant had in recounting consistently and clearly basic factual details about her family and education. At [18][15] the Tribunal expressed serious concerns with the applicant’s evidence about her alleged relationship with a woman called “Priya”.
[14] CB 136-137
[15] CB 137-138
The Tribunal had more serious concerns with the evidence given by the applicant concerning her alleged same sex relationship with a woman named “Sheena”. The Tribunal said at [20]:[16]
As put to the applicant under section 424AA, the evidence given by her during her department interview regarding the final stages of her claimed relationship with Sheena differed in significant respects from that offered to the Tribunal. In particular, the Tribunal informed the applicant that, in the audio recording of her department interview, held on 9 October 2012, she informed the department that: when she left Fiji for Australia her relationship with Sheena was “strong” and Sheena intended eventually to come to Australia; their relationship ended around one month after the applicant entered Australia, in around June 2012, when the applicant phoned Sheena in Fiji when it was late at night there and another woman answered her phone. The Tribunal explained that her evidence to the Tribunal regarding how and when her claimed relationship with Sheena ended appears different in significant respects and raises concerns regarding the truth of the claims and evidence made not only regarding her relationship with Sheena, but her claimed circumstances more generally, including her claimed sexual orientation. After being informed of her right to request additional time to respond, and following an adjournment of some 20 minutes in which the applicant had access to her migration agent, the applicant offered that: she did say, during her department interview, that she and Sheena had broken up before she got to Australia; however, because she and Sheena met on 14 February she thought there may be something in it; she and Sheena had spoken before about going somewhere to get married so the applicant phoned Sheena from Australia to talk and when she heard the voice of another woman she knew it was over; even though she told the Tribunal they didn’t have contact after they broke up, she was referring to routine contact and not to the call she made after she came to Australia. However, in the context of the applicant’s evidence overall, including the cumulative and significant credibility concerns identified above, the Tribunal does not consider the applicant’s response to be persuasive or true. The Tribunal is not satisfied that the applicant was in an intimate relationship with a person named Sheena as she claims and has significant doubts about the truth of her claimed sexual orientation.
[16] CB 138
At [23] the Tribunal found the applicant’s claims of workplace discrimination to be contradictory, speculative and unconvincing. At [24] the Tribunal concluded:[17]
On the basis of all the evidence before it, including the significant and cumulative concerns above, the Tribunal cannot be satisfied of the truth of significant aspects of the applicant’s claimed circumstances in Fiji. In particular, the Tribunal is not satisfied that the applicant: has or is perceived to have the sexual orientation she claims to have; is or has ever been in a same sex relationship with a woman or that she has any past or future intention or desire to be in a same sex relationship; is perceived to be a Lesbian in Fiji; has experienced past harm or adverse treatment of any type on the basis of her claimed actual or perceived sexual orientation; faces any risk of any type of harm in Fiji in connection with her claimed sexual orientation or for any other reason in the reasonably foreseeable future.
[17] CB 139
Viewed in the context of the Tribunal’s decision as a whole, the Tribunal’s reasons concerning its disbelief about the applicant’s alleged relationship with “Simran” and her claim of a home invasion in October 2011 are less problematic than is claimed by the applicant. While it may appear odd that the Tribunal reasoned that her consistent claims concerning Simran were rehearsed, after finding that her claims about Sheena were inconsistent, and that she had given little detail about the home invasion when many aspects of her claim were highly detailed and were examined by the Tribunal at a hearing of approximately three hours, viewed in the context of the comprehensive rejection of the applicant’s credibility, I am not persuaded that the applicant has demonstrated any jurisdictional error in respect of the two impugned findings. In this regard, I agree with the Minister’s submissions.
If the Tribunal makes a finding, and that finding is a critical step in its ultimate conclusion, and there is no evidence to support that finding then this can constitute a jurisdictional error.[18] However, I accept the Minister’s submission that the impugned findings were not a critical step in the Tribunal’s ultimate conclusion:
a)the Tribunal was not satisfied of the truth of the applicant's claimed circumstances in Fiji. In particular, the Tribunal was not satisfied that the applicant has or is perceived to have the sexual orientation claimed, that she had ever been in a same sex relationship with a woman or that she has any past or future intention or desire to be in a same sex relationship. The Tribunal's reasons for these conclusions were said to be “on the basis of all the evidence before it, including the significant and cumulative concerns above”;[19]
b)the concerns identified by the Tribunal are set out at [10]-[23] of its reasons and are quite extensive. They included inconsistencies between the applicant's written statement, her evidence at the Departmental interview and her evidence at the Tribunal hearing.[20] The Tribunal formed the view that the applicant's evidence was vague, changing and inconsistent in many significant respects.[21] The Tribunal also considered that the applicant was unable to provide any plausible explanation as to why such inconsistencies and changes arose in her evidence; [22] and
c)when the Tribunal decision is read as a whole, it is clear that the impugned findings formed only part of the Tribunal's concerns. I accept the Minister’s submission that the Tribunal's findings in the present case are similar to those considered in SZRUE v Minister for Immigration & Anor,[23] in which Judge Nicholls found as follows:[24]
The impugned finding cannot be said to be a “critical step” in the reviewer’s road to her ultimate recommendation. It was certainly a part. However, when regard is had to her reasoning and analysis, as a whole, it was a very small part. The reviewer’s adverse credibility finding was amply supported by a large body of evidence …
[18] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355–357 ; 94 ALR 11 at 37–8 ; 21 ALD 1 at 23–4; [1990] HCA 33; see also SFGB v Minister for Immigration (2003) 77 ALD 402
[19] CB 139 [24]
[20] see in particular CB 136 -137 [15]-[16], CB 137 [18], CB 138 [20]
[21] CB 135 [10]
[22] CB 136 [13]
[23] (2013) 136 ALD 401
[24] at [63]
For these reasons the findings impugned in Ground 1(A) were not a critical step to the Tribunal’s ultimate conclusion that the applicant was not a credible witness. Therefore, even if it were established that there was no evidence for the impugned findings, this would not establish a jurisdictional error on the part of the Tribunal.
I also accept that, with respect to the Tribunal’s finding that the applicant’s evidence offered little detail beyond that set out in her written claims concerning the alleged home invasion, that finding was akin to a finding in the negative. There is authority that the “no evidence” ground is not available where the finding challenged is in substance a negative one. The Minister relies upon the decision of the Federal Court in Sunchen Pty Ltd v Commissioner of Taxation.[25] I accept, however, from the applicant’s submissions, that the legal position concerning the no evidence ground is not as simple as that contended for by the Minister.
[25] [2010] FCA 21; (2010) 264 ALR 447 at [43]-[45]
It is, however, unnecessary in this case to resolve the dispute on that point of principle because I am persuaded that there was evidence to support the impugned findings by the Tribunal.
To establish error on the basis that there was “no evidence” one must cross a high threshold:[26]
What must be remembered here is that, to make out his “no evidence” assertion, let alone to show that legal error is revealed, the threshold is set, as stated, at “no evidence”. That is, if there is some evidence (even a “skerrick”) to support the reviewer’s finding, then no legal error is revealed (Shop, Distributive and Allied Employees Association v National Retail Assn (No 2) [2012] FCA 480 at [31] per Tracey J). Even where some subsequent miscalculation may have occurred on the part of the decision maker, that would be an error in a finding of fact which would not lead to jurisdictional error (MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94 at [28] per Black CJ, Sundberg and Bennett JJ).
[26] SZRUE v Minister for Immigration & Anor [2013] FCCA 893 at [24] per Judge Nicholls
In my view, the applicant's case fails to clear this threshold. There was evidence before the Tribunal to support the impugned findings, being the applicant's oral evidence given at the Tribunal hearing.
The Tribunal considered the applicant's oral evidence and formed the view that her evidence about her relationship with Simran was rehearsed, and that her evidence about her relationship with Simran and a claimed home invasion offered little detail beyond that set out in her written claims. It is well settled that credibility is a factual determination for the Tribunal.[27] In my opinion, those views were open to the Tribunal on the material before it.
[27] Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407, 423 [67]
For the Court to engage in its own consideration of the applicant's oral evidence and form a view as to whether it was rehearsed or lacking in detail would be to engage in impermissible merits review.[28]
[28] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259, 272
As to the applicant’s challenge that the impugned findings of the Tribunal were unreasonable, in my view the assertion also falls on the wrong side of the indistinct line between jurisdictional error and impermissible merits review.
The Minister correctly submits that the question to be determined by the Court has been identified by the High Court in Minister for Immigration v SZMDS:[29]
Because illogicality or irrationality may constitute a basis for judicial review in the context of jurisdictional fact finding as explained above, it becomes necessary to decide whether the Tribunal's conclusion about the state of satisfaction required by s 65 and its findings on the way to that conclusion revealed illogicality or irrationality amounting to jurisdictional error. It is clear, from the extracts from the Federal Court decision set out above, that the Federal Court emphatically disagreed with the Tribunal's finding that the first respondent's return to Pakistan and failure to seek asylum in the United Kingdom was conduct which was inconsistent with the claimed fear of persecution arising as a result of homosexuality. It also seems clear that the Federal Court, acting on the same material or evidence on which the decision was based, would have been satisfied that the first respondent feared persecution as alleged.
[29] (2010) 240 CLR 611 at [132] per Crennan and Bell JJ
The Minister makes two submissions in this regard, which I accept. The first is that the impugned findings were not critical steps bearing upon the Tribunal’s state of satisfaction under s.65 of the Migration Act, for the reasons discussed above in relation to Ground 1(A). Accordingly, any illogicality or unreasonableness in those findings could not establish that the Tribunal’s decision as a whole is affected by jurisdictional error.
Secondly, the impugned findings were open to the Tribunal based on the evidence given by the applicant at the Tribunal hearing. A decision is not unreasonable or illogical where reasonable minds might differ and that difference is one of degree, impression and empirical judgement.[30] Additionally:[31]
Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision maker might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if a decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
[30] Minister for Immigration v SZMDS (2010) 240 CLR 611 at [78] per Heydon J
[31] Minister for Immigration v SZMDS (2010) 240 CLR 611 at [135] per Crennan and Bell JJ
I am persuaded that the Tribunal's findings do not meet this threshold such as to establish that they were unreasonable, illogical or irrational. Whilst a different decision maker may not have formed the same view of the applicant's oral evidence, this is not sufficient to establish jurisdictional error.
Conclusion
The applicant has failed to establish that the Tribunal decision is affected by jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 1 August 2014
Key Legal Topics
Areas of Law
-
Administrative Law
-
Immigration
Legal Concepts
-
Judicial Review
-
Natural Justice
-
Procedural Fairness
-
Jurisdiction
0
11
2