SZUEP v Minister for Immigration

[2016] FCCA 434

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUEP & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 434

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal failed to consider a relevant integer of the applicants’ claims – whether the Tribunal failed to adequately consider the first applicant’s claims in relation to relocation – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.91R, 476

First Applicant: SZUEP

Second Applicant: SZUEQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 981 of 2014

Judgment of: Judge Street

Hearing date: 2 March 2016

Date of Last Submission: 2 March 2016

Delivered at: Sydney

Delivered on: 2 March 2016

REPRESENTATION

Solicitors for the Applicants: Mr T Silva
Silva Solicitors

Counsel for the Respondents: Mr D Hughes

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in that regard is dispensed with.

2. The amended application is dismissed.

3. The applicants pay the costs of the first respondent fixed in the amount of $6646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 981 of 2014

SZUEP

First Applicant

SZUEQ

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision the Tribunal made on 17 March 2014 affirming a decision of the Delegate not to grant the applicants protection (class XA) visas. Both applicants are citizens of South Africa and their claims were assessed against that country. The first applicant was born in a particular location in South Africa and the second applicant, the husband of the first applicant, was born in Nigeria.

2. The first applicant claimed that she had been in an abusive marriage, which ended in 2011.  The Tribunal found that the first applicant’s ex-husband has attacked both applicants in May 2012, during which he raped the first applicant.  The Tribunal accepted that should the applicants return to South Africa there was a real chance (in the sense of being a real risk) that they would face serious harm or significant harm at the hands of the ex-husband.  In those circumstances, the Tribunal had to determine whether the harm was for a Convention reason and the Tribunal found that it was not.

3. In relation to complementary protection, the Tribunal had to determine whether it was reasonable for the applicants to relocate to an area where there was not a real risk of harm and the Tribunal found that it was reasonable and practical for the applicants to do so.  The grounds in the amended applications are as follows:

   (1) The Tribunal made jurisdictional error since it failed to consider a critical issue it was required consider in order to complete its review

   Particulars

   The Tribunal made a finding at CB 163.0 in para 88 that:

   The Tribunal accepts that certain police officers may decline to get involved in family matters, a situation which may be exacerbated when the new partner is a foreigner, and that this was what happened when the primary applicant approached the police.

   This finding required the Tribunal to consider whether the applicants were denied state protection for the membership of the main applicant in a particular social group which is "women" or "women subject to domestic violence" or similar group. Or ask whether they were denied state protection because of the nationality of the secondary applicant (being Nigerian) or because of the combination of these two factors. If accepted it would have formed the Convention reason for the harm and it would have required the Tribunal further to ask whether there is real chance of this happening in the future if they return. Instead the Tribunal made a finding contradictory to its earlier factual finding that:

   The Tribunal finds no evidence that there would be selective and discriminatory withholding of state protection from the applicant or that it would be for a Convention reason. (end of Para. 88)

   (2) The Tribunal made jurisdictional error in that in dealing with whether relocation is reasonable it failed to consider unique circumstances of the applicant with regards to (a) her daughter (b) denial of state protection already experienced

   Particulars

   The Tribunal found in para.85 (CB162) that:

   The primary applicant was subject to brutality and sexual assault at the hands of her former husband. Given that he continued to attack her after the marriage ended, the Tribunal also accepts that there is a real chance that he will seriously harm her (physical harm) if she returns to Johannesburg. See also para.95 (CB164).

   It is apparent that the main reason for finding by the Tribunal that the applicant can relocate (CB 164 para. 97), was because the former husband would not be able to locate her. The other reason being that he may not be able to influence police in other regions. The Tribunal failed to take the unique circumstances of the applicant in that:

   (i) The applicant and the perpetrator have a daughter with whom the perpetrator is in contact and whom he has tried to kidnap in the past. The Tribunal stated that daughter "could move to live with her mother" see para.97 CB 165. He may also have access to his daughter as a legal right. Thus through her connection he can locate her mother;

   (ii) If the perpetrator ever locates the applicant in another region of South Africa and seriously harm her whether the police would protect her and her husband, accepting xenophobic attitude among the police, and accepting past experience of denial of state protection.

   See Transcript to support the fact that the father would try to locate her (i) Pg12- ln 19-20 (ii) Pg 22 In 17- Pg 23 In 23 also see (iii) Pg 36 Ln 28-41.

4. The kernel of the argument developed by the solicitor for the applicants in relation to ground 1 was that the adverse finding that there was no evidence that there would be selective and discriminatory withholding of state protection from the applicants or that it would be for a Convention reason was not open.

5. The solicitor for the first respondent focussed upon the reasoning of the Tribunal identified in para.88 and, in particular, a reference to the Tribunal accepting that certain police officers may decline to get involved in family matters, in respect of which the Tribunal added that this was a situation that may be exacerbated when the new partner is a foreigner and noted that this is what happened when the primary applicant approached the police.  This was a reference by the Tribunal to the incident involving the first applicant’s ex-husband.

6. The Tribunal reasons have to be read as a whole and without a keen eye for error. It is clear from para.85 that the Tribunal did accept the incident involving the first applicant’s ex-husband and it was in those circumstances that the Tribunal referred to the requirements under s.91R(1) of the Act and, relevantly, the proposition that what is required is State toleration or condonation of the persecution in question or the systematic and discriminatory withholding of protection for a Convention reason.

7. The Tribunal identified that the relevant convention nexus required a failure of the State to protect the first applicant from persecution where the failure is for one or more of the five Convention reasons.  The Tribunal noted that it was not sufficient to show maladministration, incompetence or ineptitude by the police or that the failure is due to a shortage of resources.  The Tribunal proceeded to consider the primary applicant’s fears and the country information in relation to violence against women in South Africa.

8. The solicitor for the first respondent suggested that the reference to the exacerbation of the police declining to get involved because the partner was a foreigner was a Convention reason and inconsistent with the finding made by the Tribunal.  It was submitted that the country information referred to by the Tribunal undermined the adverse finding made by the Tribunal at the end of para.88 as well as the ultimate conclusion in paras.89 and 90 in relation to the applicants not having a well-founded fear of persecution for a Convention reason.

9. The first applicant’s solicitor submitted that the material had been taken out of context and that on close analysis the reasoning in para.88 did not support the conclusion expressed in the last sentence. The Court was taken to the country information summarised in attachment B to the Tribunal’s reasons, and the findings made by the Tribunal in para.88 was said not to be open. I reject that submission. It was a matter for the Tribunal to determine what weight to give the country information and to make findings in relation to the issue thrown out under s.91R(1) of the Act.

10. The adverse finding by the Tribunal cannot be said to be unreasonable in respect of the last sentence of para.88 and was open on the material before the Tribunal.  Ground 1 fails to make out any jurisdictional error. 

11. In relation to ground 2, the substance of the submission was that the Tribunal had failed to take into account the unique circumstances of the first applicant in relation to her daughter and the denial of State protection that the first applicant had experienced.  It is clear that the Tribunal referred to the incident involving the first applicant’s ex-husband and was alive to the approach that had been adopted by the police on that occasion but logically that does not amount to a finding of fact as to a denial of State protection.

12. It is also clear from the Tribunal’s reasoning that the Tribunal took into account the first applicant’s daughter and where she was living.  When asked about the possibility of relocation, in the evidence before the Tribunal no reference was made to a fear concerning the first applicant’s daughter.  In those circumstances, there can be no jurisdictional error by the Tribunal in failing to consider an issue not raised by the applicants.  I accept the first respondent’s submission that ground 2 is, in substance, an impermissible challenge to the adverse findings of fact and merits in relation to whether it was reasonable and practical for the applicants to relocate.

13. It is apparent from the Tribunal’s reasons that the Tribunal took into account the first applicant’s alleged fears in relation to relocation and the adverse findings by the Tribunal in respect of relocation and cannot be said to lack an evident and intelligible justification.  Ground 2 fails to make out any jurisdictional error. 

14. The amended application is dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 9 March 2016