SZUIB v Minister for Immigration and Border Protection
[2015] FCA 933
•6 August 2015
FEDERAL COURT OF AUSTRALIA
SZUIB v Minister for Immigration & Border Protection [2015] FCA 933
Citation: SZUIB v Minister for Immigration & Border Protection [2015] FCA 933 Appeal from: SZUIB v Minister for Immigration & Anor [2015] FCCA 979 Parties: SZUIB v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 446 of 2015 Judge: GILMOUR J Date of judgment: 6 August 2015 Catchwords: MIGRATION – application for protection visa – appeal from decision of the Federal Circuit Court of Australia – fear of persecution on basis of refusal to enter into an arranged marriage – whether Tribunal denied the appellant procedural fairness by failing to take into account a magazine article before making its decision – appeal dismissed. Legislation: Migration Act 1958 (Cth) s 36(2)(a) Date of hearing: 6 August 2015 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 17 Counsel for the Appellant: The appellant appeared in person Counsel for the First Respondent: Ms B Tronson Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The second respondent submitted to any order the Court makes in the proceeding
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 446 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZUIB
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GILMOUR J
DATE OF ORDER:
6 AUGUST 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The name of the second respondent be amended so that the “Administrative Appeals Tribunal” is substituted for the “Refugee Review Tribunal”.
2.The appeal be dismissed.
3.The appellant pay the costs of the first respondent of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 446 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZUIB
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GILMOUR J
DATE:
6 AUGUST 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant appeals from orders made by the Federal Circuit Court of Australia dismissing her application to that court pursuant to s 476 of the Migration Act 1958 (Cth) (the Act): SZUIB v Minister for Immigration & Anor [2015] FCCA 979. That application was for judicial review over a decision of a Refugee Review Tribunal (the Tribunal). The Tribunal had affirmed a decision of the delegate of the first respondent, the Minister. That decision by the Minister refused to grant to the appellant a protection (class XA) visa (protection visa).
The appellant is a citizen of Tonga. She arrived in Australia on 12 May 2011 on a tourist visa. On 8 April 2013, she applied for a protection visa. Her application was refused on 25 September 2013. She applied on 10 October 2013 to the Tribunal for review of that decision.
The appellant claimed to have suffered persecution from her family because she had refused, she said, to enter into an arranged marriage. Instead, she married a Tongan citizen of her own age in Australia in March 2013. She claimed the man her parents had arranged for her to marry was a member of the Tongan Royal Family and for this reason the authorities would not protect her from the persecution she fears from her family. On 23 April 2014, she gave evidence at the Tribunal hearing. The appellant’s husband gave evidence on her behalf. She claimed that the marriage was arranged by her parents when she was aged 16, which was around 2002. The marriage was, she said, to take place in December 2012, but she kept postponing it.
She also claimed that her parents had harmed her in the past and would harm her again by physical assault were she to return to Tonga as she had not entered into the marriage arranged for her. Indeed, both she and her husband claimed that were they to return to Tonga, they would be tortured and killed because they had married. As counsel for the Minister indicated, the Tribunal was told that there were support letters from the Guilford Anglican Church, but that they, meaning the appellant and her husband, had forgotten to bring them.
It is helpful to set out the relevant passage from the transcript of the Tribunal hearing:
Applicant’s husband: … I’ve got these the support letters from the church that was the only thing we forgot.
Tribunal member: sorry?
Applicant’s husband: the support letters.
Tribunal member: have you got those letters with you?
Applicant’s husband: no, no, we forgot.
Tribunal member: do you want to send them to me? Can you bring them in tomorrow or send them in?
Applicant’s husband: yes, yes.
I turn now to the Tribunal’s decision. The Tribunal on 24 April 2014 dismissed the application for review, thereby, affirming the decision of the delegate of the Minister. The decision was sent on 28 April 2014 to the appellant. The Tribunal’s reasons disclosed a number of important findings going to the credit of the appellant and her claims. Significantly, the Tribunal found that the appellant and her husband were not credible witnesses. The Tribunal characterised their responses as brief, vague and evasive. Central to the disposition of the application before the Tribunal, it did not accept that the appellant’s parents had arranged a marriage for her or that her parents or any other persons would seek to harm her for refusal to enter into the claimed arranged marriage.
It found that the appellant’s freedom of movement in terms of travelling from Tonga on a number of occasions without her parents’ supervision gave the lie to her claim that she had been mistreated by them or was subject to their authority as she had also claimed. The Tribunal in conclusion, therefore, did not accept the following: that the appellant’s parents had arranged a marriage for her; that she faces harm on her return to Tonga for refusal to enter into the claimed arranged marriage; that either she or her husband would face torture or death on return to Tonga because they had married; that the marriage to her husband took place against their wishes or requirement that she marry another man.
These are the facts which I have to consider. They are not findings with which I can interfere and indeed, I am not asked to. It was for these reasons that the Tribunal concluded that the appellant did not meet the refugee criterion set out under s 36(2)(a) or s 36(2)(aa) of the Act.
On 29 April 2014, five days after the Tribunal’s decision was made, the Tribunal received from the appellant two letters of support from the Guilford Anglican Church together with over four pages of signatures in support and a magazine article from a magazine entitled “Sunday Style” (the Magazine) about a forced marriage of a 17 year-old from Southeast Asia who had been sent to live in Australia.
I will now turn to the proceedings before the Federal Circuit Court. The then applicant for review, in her amended application, raised the following ground of review:
The Refugee Review Tribunal denied me procedural fairness and thereby committed jurisdictional error when it made its decision on 24 April 2014.
Paraphrasing the balance of the ground, she asserted that this failure was one to have regard and take into account critical and significant materials. The material to which she was referring and which is particularised was the article in the Magazine to which I have referred. It appears that the Magazine is a lift-out from the Sunday Telegraph newspaper. The particulars also asserted that the Tribunal had agreed to wait until it received this material before making its decision. In April 2015, the primary judge in an ex tempore judgment, dismissed the application. His Honour’s reasons turn largely on the content of the relevant passages from the transcript before the Tribunal on the question before him.
His Honour noted that in the transcript there was no mention of the article from the Magazine. The only relevant passage concerning further information was concerning letters of support from the Church. To the extent that it was relevant, the primary judge concluded that, in effect, liberty had been granted to the appellant to provide those letters of support the following day. Not only did she not do that, she did not do it until five days after the decision was delivered. It was at that time that she provided not only two letters of support, but the Magazine article.
The appellant now appeals to this Court from the judgment of the Federal Circuit Court. She advances, in effect, the same grounds before this Court as she did before the Federal Circuit Court, although her complaint as to the failure of the Tribunal to consider information is confined to the Magazine article. The ground that the Tribunal should have, but failed to, consider the Magazine article and in doing so denied the appellant procedural fairness is, in my opinion, without merit. Apart from matters to which I will shortly turn, such an article was, in any event, irrelevant to the Tribunal’s consideration of her claims as the Tribunal had not believed her claims to have been the subject of an arranged marriage by her parents.
There was no dispute in the Tribunal that it was recognised that there exists a particular social group being “women at risk of forced marriage in Tonga”. So much is made clear in the decision of the delegate of the Minister. It is quite apparent from the transcript of the Tribunal hearing and, in particular, at the passage I have excerpted above, that the appellant’s assertion that the Tribunal agreed to wait until it received the Magazine article before delivering its decision is baseless. The primary judge was correct so to find.
This same baseless assertion was repeated by the appellant in her written submissions provided to the Court this morning. Neither she nor her husband at any time during the Tribunal hearing refer to a magazine article, nor did either of them ask the Tribunal to defer making its decision until such an article was provided.
The Tribunal had no obligation whatsoever to delay making its decision pending receipt of a magazine article which neither the appellant nor her husband had even mentioned. As I see the Magazine article was not received by the Tribunal until it was sent by facsimile on 29 April 2014, five days after the Tribunal had made its decision and one day after the decision had been despatched to the appellant. I am, for these reasons, not persuaded that there was a denial of procedural fairness by the Tribunal and no error in that respect by the primary judge has been made out. I will, for these reasons, order that the appeal be dismissed and that the appellant pay the costs of the first respondent to the appeal.
The Tribunal now forms part of the Administrative Appeals Tribunal so I propose, on the application of the Minister, to amend the heading in the proceeding. I will make an order that the name of the second respondent be amended so that the “Administrative Appeals Tribunal” is substituted for the “Refugee Review Tribunal”.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate:
Dated: 6 August 2015