SZTHC v Minister for Immigration

[2014] FCCA 2092

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTHC & ORS v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2092

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that its findings that certain allegations were implausible were unsupported by reasoned findings rejecting those allegations, it failed to give real consideration to complementary protection issues and it prejudged the review.

Legislation:

Migration Act 1958, ss.36, 424AA, 425, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703
SZSQG v Minister for Immigration & Citizenship [2013] FCCA 612
SZRPA v Minister for Immigration & Citizenship [2012] FCA 962
SZQFR v Minister for Immigration & Citizenship [2013] FCA 574
Minister for Immigration & Multicultural Affairs v Jia Legeng (2005) 205 CLR 507
Johnson v Johnson (2000) 201 CLR 488
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425

First Applicant: SZTHC

Second Applicant: SZTHD

Third Applicant: SZTHE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2192 of 2013

Judgment of: Judge Cameron

Hearing date: 27 August 2014

Date of Last Submission: 27 August 2014

Delivered at: Sydney

Delivered on: 11 September 2014

REPRESENTATION

The Applicants appeared in person

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2192 of 2013

SZTHC

First Applicant

SZTHD

Second Applicant

SZTHE

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants are citizens of Mauritius who arrived in Australia on 24 June 2008.  On 14 May 2012 the first and second applicants, who are wife and husband, lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that they feared persecution in Mauritius because of their religious beliefs.  Their son, the third applicant, was included in that application as a member of the their family unit.  On 15 February 2013 the applicants’ application was refused by a delegate of the first respondent (“Minister”).  The applicants then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  They were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court cannot rehear the applicants’ application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Background facts

1. In its decision the Tribunal summarised the facts alleged in support of the applicants’ claim for a protection visa.  As summarised by the Tribunal, the first and second applicants relevantly made the following claims:

   a)the first applicant grew up in a strict Muslim family.  Her maternal grandfather and uncles were local Muslim leaders and played a leading role at their local mosque and at an Islamic centre they had established;

   b)the first applicant had been assaulted on several occasions when she failed to comply with religious requirements and, in 1997 or 1998, was forced to marry a Sunni Muslim man.  He forced her to comply strictly with Sunni Muslim customs and subjected her to domestic violence;

   c)in April 2004 the first and second applicants married and went into hiding at a farm owned by some of the second applicant’s childhood friends.  They remained there until they left Mauritius in 2008 and during those years they rarely left the farm;

   d)on one occasion in 2006 when the first applicant was pregnant, they went into town for a medical appointment and were seen by the first applicant’s first husband. He hit their motorcycle with his car in an attempt to kill them and then ran away when passers-by went to their assistance;

   e)the first applicant was admitted to hospital for one month.  Other than initially providing someone to guard her in her room in the hospital, the police said they could not intervene because it was a religious matter;

   f)their son was born in Mauritius in December 2006 with a heart condition;

   g)they made enquiries with an agent about obtaining student visas to travel to Australia and they left Mauritius on 23 June 2006 after the first applicant was granted a student visa and the second and third applicants were granted student dependant visas.  In 2006 they unsuccessfully applied for skilled visas to migrate to Canada.  The first applicant discontinued her studies in early 2012 because of lack of funds;

   h)in October 2009 the third applicant’s health deteriorated but they were unable to afford medical treatment in Australia.  On 31 October 2009 the first applicant returned to Mauritius with the third applicant so that he could receive medical treatment there.  They all returned to Mauritius in November 2010 to seek further medical treatment for the third applicant;

   i)after they returned to Australia in January 2011 they learnt that the second applicant’s family had been threatened by members of the first applicant’s family who had demanded to know their whereabouts.  This caused the second applicant’s mother to fall ill and in February 2011 the first applicant travelled to Mauritius to visit her.  The second applicant also travelled there to visit her in November 2011; and

   j)they had been told that threats continued to be made against them.  In early 2012 they learnt that they could apply for protection visas and they so did in May 2012.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicants and the evidence before it, the Tribunal was not satisfied that the applicants are persons to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act. The Tribunal’s decision was based on its findings that various aspects of the applicants’ evidence indicated that they had not been truthful about their reasons for leaving Mauritius and that some of their key claims were highly implausible and lacking in internal logic. The Tribunal reached those findings for the following reasons:

   a)while it accepted that the first applicant might have been involved in an accident at some time, as indicated by photographs which showed her with bruises and wounds to her lower body, the Tribunal did not accept that she had sustained those injuries in an attempt on her life by her former husband in 2006.  In this regard:

   i)the Tribunal considered it highly implausible that on a rare visit to town the first and second applicants had been seen by the first applicant’s former husband who attempted to kill them and it did not accept that such a coincidence had occurred;

   ii)the Tribunal did not accept that after the incident the first applicant had been placed under protection for three days while in hospital.  It did not accept that the police would have provided an armed guard at the first applicant’s bedside and then subsequently refuse to take action against the perpetrator of the accident because it was a religious matter.  The Tribunal found that the second applicant’s later evidence that there had been no armed guard, just a police presence in the hospital, did not overcome the difficulties with the original evidence; and

   iii)the Tribunal found that the first and second applicants had not adequately explained why, if their accounts of the 2006 incident had been true, the first applicant’s family, having rediscovered them after a period of two years, would not have made further attempts to harm them or to make contact during the month they were out of hiding while the first applicant was in hospital.  It noted that they had stated that the second applicant had regularly visited the first applicant in hospital and found that that would have provided ample opportunity for him to be located and followed and for either of them to be harmed.  The Tribunal noted that the first and second applicants’ explanation that they had not been harmed because it would have been inappropriate while the first applicant was in hospital was inconsistent with their portrayal of the first applicant’s family as irrationally violent and seriously concerned about her breach of religious customs and with their claims that their lives were still at risk despite the passage of time;

   b)the Tribunal found that the applicants’ evidence did not indicate that they had been in hiding from 2004 until they left Mauritius and that their evidence about their situation was inconsistent with their claim to have been in hiding.  In that connection, the Tribunal noted that:

   i)five workers on the farm and three of the second applicant’s friends had known about the applicants’ whereabouts, including one who was a Muslim and attended the mosque where the first applicant’s family were leaders, but there was no suggestion that inquiries had ever been made of the Muslim friend about the applicants’ whereabouts; and

   ii)the applicants left their place of hiding on numerous occasions to obtain medical care and treatment: when the first applicant was injured in 2006; when the third applicant was born and remained in hospital for six weeks and the first applicant stayed with him while the second applicant stayed either at the hospital or with a close friend; and when the first and second applicants took the third applicant for regular check-ups every few months during his first year of life.  The Tribunal found that anyone who might have wished to harm the applicants would have had ample opportunity to do so but that, having refused to accept their account of the alleged attempt on their lives in 2006, no-one had harmed or threatened them with harm.  It found that the fact that they were able to avoid harm during that four year period indicated that they had not been truthful about their circumstances and that they had not in fact been at risk of serious or significant harm during that period;

   c)the Tribunal noted that the applicants had produced a document which they claimed had been displayed at the mosque where the first applicant’s family were leaders.  The document, dated 10 May 2004, was written in English and stated that the first applicant was “unacceptable” because she had run away with a Christian man and that she had to be punished.  The Tribunal noted that the first and second applicants claimed that their friend had picked it up at the mosque and that the first applicant had brought it with her to Australia but had forgotten about it.  The Tribunal did not accept that the document provided independent or objective corroboration of the applicants’ claims that their lives were at risk.  Given the first and second applicants’ evidence that they had not known they could seek protection until 2012, the Tribunal did not accept that the first applicant would have kept the document from 2004, brought it to Australia and retained it until 2012.  It found that the applicants had been unable to satisfactorily explain why it would have been written in English and concluded they had produced it in order to submit it as evidence to support their application for protection;

   d)the Tribunal noted the first and second applicants’ explanations for the delay in lodging their application for protection visas, namely: they had not been aware that they could apply for protection visas and had thought only boat arrivals could do so; they had not trusted anyone and did not tell anyone their reasons for leaving Mauritius; their English had not been sufficient to seek advice; they had had financial problems; the first applicant had been struggling with her studies; their son had not been well; and they had been trying to obtain permanent residency through their studies.  The Tribunal did not accept that the factors referred to by the applicants sufficiently explained the delay.  The Tribunal found that prior to their departure from Mauritius and subsequently in Australia when they applied to migrate to Canada and for renewals of their student visas, the first and second applicants had demonstrated the capacity to negotiate the immigration system and an ability to locate and instruct professionals who could help them with migration issues.  In those circumstances, the Tribunal did not accept that they had been incapable of obtaining advice about protection visas at an earlier stage, particularly given the precarious nature of their existence in Australia, which would have suggested to them that their ability to remain here on student visas had never been certain.  The Tribunal also noted that the applicants had only made their application when the first applicant could no longer continue her studies because of their financial position.  The Tribunal found that if the applicants had really left Mauritius in fear of their lives they would have lodged their application at an earlier time.  It found that they had fabricated, or at least exaggerated, their claims in order to stay in Australia after they realised they could not do so under the student visa pathway;

   e)the Tribunal found that first applicant’s return to Mauritius on three occasions and the second applicant’s return on two occasions was inconsistent with their claimed fears of harm.  It did not accept that the reasons they had given satisfactorily explained why they would have returned to a country where they claimed they feared persecution or significant harm.  In that connection:

   i)while accepting that the third applicant had a congenital heart defect, the Tribunal did not accept that the first and second applicants had been required to return with him twice to Mauritius for emergency medical treatment.  It noted that although the medical reports submitted by the applicants confirmed the existence of the third applicant’s heart condition, they did not indicate that his heart function was anything but normal, that his life had been in danger at any time or that he had required medical treatment in Mauritius.  The Tribunal refused to accede to a request by the applicants that it delay making its decision until the third applicant had attended an appointment with a heart specialist in Australia as it did not consider that any comments made about the third applicant’s prior condition by a new doctor who would not have examined him at the relevant time would have been of greater assistance than the reports closer in time to the periods the third applicant allegedly required treatment in Mauritius, which the applicants had already submitted.  The Tribunal found that there was no documentary evidence of the third applicant having any periods of acute illness;

   ii)the Tribunal was not persuaded by the first applicant’s evidence about when she first returned to Mauritius with the third applicant.  The Tribunal noted that the first applicant claimed that she had taken the third applicant to Westmead Hospital but had been turned away because his condition had not been covered by their private health insurance but it did not accept that the hospital would have done that if the third applicant had really needed emergency care for a heart condition.  Given that the applicants had funds to fly to Mauritius and to pay for private treatment and accommodation in a clinic there for four weeks, the Tribunal did not accept that they would have been unable to obtain treatment in Australia if it had been required as a matter of urgency.  It also did not accept that the third applicant would have been able to fly to Mauritius two days after he had presented at the hospital if his condition had been as serious as claimed.  The Tribunal concluded that the applicants’ decision to return to Mauritius had been a matter of choice and not medical necessity and that it was incompatible with their claimed fears; and

   iii)the Tribunal did not accept that if the home of the second applicant’s mother had been attacked by the first applicant’s family seven years after they had last demonstrated any interest in the applicants’ whereabouts, the applicants’ reaction would have been to return immediately to Mauritius.  It also did not accept that the first applicant would have been the one to return first given that it was not her mother who was ill and given that she was the primary target of her family.  The Tribunal did not accept as credible the explanation that the first applicant had returned first because the second applicant might have reacted violently to the situation and placed himself at additional risk.  The Tribunal found implausible the claim that the first applicant’s family had taken action after seven years during which there was no evidence of them having had an ongoing interest in, or of having made enquiries about, the applicants.  It found that when the deficiencies in the applicants’ account were taken into account, the fact that the second applicant’s mother was still alive further indicated that the first and second applicants had not been truthful about their reasons for returning to Mauritius in 2011; and

   f)the Tribunal noted that the first and second applicants had claimed that the third applicant was at risk of harm from the Muslim community in Mauritius because he was not “legal” according to Islam.  However, having found that the first and second applicants did not face a risk of harm in Mauritius, the Tribunal also did not accept that the third applicant had a well-founded fear of persecution or faced a real risk of harm.  It further noted that the first and second applicants had submitted that the third applicant faced harm because of the crime rate in Mauritius, particularly, the kidnapping of children, but it found that the risk that the third applicant would suffer harm for those reasons was remote, speculative and insubstantial.  The Tribunal found that the evidence did not indicate that the possibility of the third applicant being at risk of such harm in Mauritius was greater than the risk anywhere else.

Proceedings in this Court

1. In their amended application the applicants alleged:

   1.The Tribunal’s findings with respect to credibility were based on assertions of “implausibility” without addressing or resolving actual questions of fact on which the credibility of the Applicants depended.

   Particulars

   The Tribunal treated a central claim made by the Applicants - that they had been spotted by the First Applicant’s wife [sic] on a trip to the city - as implausible and coincidental and therefore refused to accept that it had happened. There was no basis in evidence or logic for making a positive finding of disbelief based on nothing more than the fact that it involved an unlikely coincidence. The Tribunal fell into the type of error identified by the Full Federal Court in W148/00A v MIMA [2001] FCA 679 (2001); 185 ALR 703.

   2.The Tribunal failed to give proper consideration to the criteria in s 36(2)(aa).

   Particulars

   The Tribunal’s consideration of the “complementary protection” criteria in s36(2)(aa) was perfunctory and did not amount to a separate consideration of the meaning of a real risk of significant harm.

   3.The Tribunal erred in its consideration of the perceived delay lodgement of the application for a protection visa with respect to the criteria in s 36(2)(aa) of the Act.

   Particulars

   The Tribunal considered that the period of time that had elapsed between the Applicants’ arrival in Australia and the lodgement of their protection visa applications indicated that their claims were not genuine.  The Tribunal failed to consider that and application for a protection visa relying on the criteria in s 36(2)(aa) was not possible until 24 March 2012, which was less than two months before the application was lodged.

1. At the hearing of the application the applicants raised a further ground which was to the effect that the Tribunal had made up its mind on the review before they had made their case to it.

Ground 1

1. The allegation made in the first ground of the amended application was that the Tribunal’s findings with respect to credibility were based on assertions of “implausibility” in circumstances where the Tribunal had not made findings of fact necessary to support such a characterisation of those aspects of their claims.  The only particular advanced in this connection concerned a finding by the Tribunal that it was implausible that the first applicant’s former husband would have come across her on one of the rare occasions she left the Mauritian farm where she and the second applicant had hidden for four years.

2. In making this allegation, the applicants relied on the decision of the Full Court of the Federal Court in W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703 where it was relevantly said:

   Where the question of credibility is determinative of a tribunal decision, to simply assert that the tribunal considers the applicant’s account to be ‘‘implausible’’ or ‘‘highly unusual’’ does not constitute a finding on the question raised.  Such expressions are more in the nature of observations or side comments rather than findings.  The reasoning process and supporting evidence that forms the basis on which a finding that evidence is rejected should be disclosed and clear findings made in direct and explicit terms.  It is not sufficient simply to make general passing comments on general impressions made by the evidence where the issue is important or significant.  (at 717 [67] per Tamberlin and R D Nicolson JJ)

3. The allegation, as particularised, exaggerated the significance of the Tribunal’s “implausibility” finding to its conclusion that core aspects of the applicants’ claims lacked credibility.  As the Minister said in his written submission:

   The Tribunal rejected the applicants’ claims based upon findings set out under 3 headings: (i) “Credibility issues”, (ii) “Delay in lodging application”, and (iii) “Return trips to Mauritius”.  Within “Credibility issues” the Tribunal had concerns regarding 3 of the applicants’ claims: (i) the 2006 incident, (ii) the applicants’ claims to have been living in hiding, and (iii) the notice at the Mosque.  The Tribunal found several aspects of the 2006 incident to be implausible: (i) the coincidence of seeing her ex-husband on a “rare visit into town” who then (ii) “took the opportunity to kill them in a staged road accident”, (iii) following which the police posted an armed guard for the mother only to subsequently say they would take no action as it was a private matter, and following which (iv) there were no further attempts to harm them during her stay in hospital (CB244-250 [11]-[30]).

4. The Tribunal’s “implausibility” finding concerned the coincidence element of the 2006 incident where it relevantly said:

   … First, I consider highly implausible the claim that on a rare visit into town they happened to be seen by the ex-husband who took the opportunity to attempt to kill them in a staged road accident. While coincidences do happen, as the first named applicant stated when I expressed my doubts about the credibility of this claim, I do not accept that this one did.

5. Even if the applicants made out their allegation concerning the inappropriateness of the Tribunal’s finding of “implausibility”, it was only one of several bases of the Tribunal’s conclusion that the applicants had not been telling it the truth.  However, the Tribunal’s belief that the applicants’ account of the 2006 accident was implausible was not one affected by error.  Although the relevant conclusion reached by the Tribunal was based on probabilities, it was neither irrational nor illogical.  Most particularly, the Tribunal expressly found that the events in question had not occurred.  Consequently, it did not commit the error described in W148/00A.

Ground 2

1. The allegation in the second ground of the amended application, that the Tribunal’s consideration of the complementary protection criterion had been perfunctory, focussed on the following paragraph in the Tribunal’s reasons:

   The first and second named applicants rely on the same claims and circumstances in seeking to establish that they are eligible for protection under the refugees criteria and the complementary protection criteria. Because I do not accept that their account of the circumstances in which they left Mauritius, or their reasons for not wanting to return, is truthful, I do not accept either that there is a real chance that they face serious harm amounting to persecution at the hands of the first named applicant’s ex-husband, extended family, or the broader Muslim community, now or in the reasonably foreseeable future; nor are there substantial grounds for believing that there is a real risk that they face significant harm for the reasons claimed.

2. It is true that the Tribunal did not devote many words to the complementary protection aspect of the applicants’ review but it was not necessary that it do so.  As the summary of the Tribunal’s reasons set out above at [5] makes clear, the only aspect of their claim which relied solely on the complementary protection criterion was the one which concerned the possibility that the third applicant might be kidnapped.  That was given separate and adequate consideration.  As to the remainder of their claims which had both Convention-related and complementary protection-based aspects, the Tribunal disbelieved the facts on which they were based.  The Tribunal found that the evidence to which it had referred in the context of the applicants’ Convention-based claims also supported a conclusion that the applicants would not face a risk of significant harm arising out of those same matters were they to return to Mauritius.  That the Tribunal’s consideration and rejection of the factual allegations in question was made largely in the context of the applicants’ claims to fear Convention-related harm did not prevent those findings from being equally applicable in the complementary protection context: SZSQG v Minister for Immigration & Citizenship [2013] FCCA 612 at [84]-[93].

3. Although the Tribunal’s express consideration of the complementary protection criterion was not lengthy, it was not perfunctory because it was a straightforward conclusion based on a detailed factual analysis undertaken earlier in its reasons.

Ground 3

1. The third ground of the amended application alleged that the Tribunal erred by not considering, when drawing an inference adverse to the applicants from the late lodgement of their protection visa application, that the right to seek such a visa on complementary protection grounds had only come into existence two months earlier. 

2. The applicants were represented before the Tribunal and their representatives did not suggest in their post-hearing submissions to the Tribunal that the delay in seeking protection had had anything to do with the introduction of the complementary protection provisions of s.36 of the Act. Instead, they referred to other matters. In circumstances where applicants are professionally represented before it, the Tribunal is entitled to assume that the only claims which are made are those which are articulated and that any other arguable claims are not pressed: SZRPA v Minister for Immigration & Citizenship [2012] FCA 962 at [10] and [26]; SZQFR v Minister for Immigration & Citizenship [2013] FCA 574 at [57]. As the applicants did not suggest to the Tribunal that their delay in seeking protection was in some way related to the complementary protection amendments, there was no reason for the Tribunal to consider that it was, and so the fact that it did not do so did not amount to error.

Ground 4

1. At the hearing of this application the applicants submitted that it had appeared to them at the hearing that the Tribunal had already made up its mind about their review.  It is unclear whether this was an allegation of actual or apprehended bias.  In support of this allegation the applicants relied on the first applicant’s affidavit affirmed on 23 November 2013 which annexed her transcription of the Tribunal hearing.  The affidavit was admitted into evidence subject to a reservation as to its relevance but, given its centrality to the allegation of bias, I find that it is relevant and so should be admitted unconditionally.

2. I have read the transcript of the Tribunal hearing and have not identified any reason to conclude that the Tribunal had been determined on a result regardless of what evidence might have been placed before it (Minister for Immigration & Multicultural Affairs v Jia Legeng (2005) 205 CLR 507) or that it conducted the hearing in such a way that a fair-minded lay observer properly informed as to the nature of the proceeding, the matters in issue and the conduct said to give rise to an apprehension of bias might reasonably apprehend the possibility that the Tribunal was not bringing an impartial and unprejudiced mind to the resolution of the question it was required to decide: Johnson v Johnson (2000) 201 CLR 488; Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425.

3. The transcript reveals that the Tribunal put concerns to the applicants pursuant to ss.424AA and 425 of the Act and it is presumably these statements which the applicants have perceived as being evidence of a closed mind. While understandable, that perception was incorrect. The Tribunal’s statements were opportunities given to the applicants, in accordance with the Act, to put the Tribunal’s mind at rest over matters of concern to it, not statements evidencing a closed mind.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 11 September 2014