SZUIZ v Minister for Immigration
[2015] FCCA 456
•27 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUIZ v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 456 |
| Catchwords: MIGRATION – Refugee Review Tribunal – real chance test – whether the Refugee Review Tribunal gave adequate consideration to the history of violence – whether the Refugee Review Tribunal failed to consider that the Applicant feared violence – protection (class XA) visa – claims properly assessed by law – correct application of the real chance test – application dismissed. |
| Legislation: Migration Act 1958 |
| Applicant: | SZUIZ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1348 of 2014 |
| Judgment of: | Judge Street |
| Hearing date: | 27 February 2015 |
| Date of Last Submission: | 27 February 2015 |
| Delivered at: | Sydney |
| Delivered on: | 27 February 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Davy |
| Solicitors for the Applicant: | Parish Patience Solicitors |
| Counsel for the Respondents: | Mr Cleary |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The amended application be dismissed.
The Applicant pay the First Respondent's costs fixed in the sum of $6825.
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 1348 of 2014
| SZUIZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application within the Court’s jurisdiction over s.476 of the Migration Act for a constitutional writ in relation to the decision of the Tribunal given on 22 April 2014. That decision of the Tribunal affirmed a decision of the delegate delivered on 27 November 2012 declining to grant the applicant a Protection (class XA) visa. The grounds of the alleged jurisdictional error are identified in the amended application as follows:
1. In assessing the Applicant’s claim for protection, the Second Respondent has misconstrued the “real chance” test and failed to give adequate consideration to the history of violence.
2. The Second Respondent has failed to consider an integer of the Applicant’s claim, namely that she feared violence from her husband’s relatives.
The applicant arrived in Australia under a student visa in 2008. That visa was obtained as a result of the applicant engaging in a fraud and obtaining false, fraudulent marriage documents. The applicant obtained a further visa in 2011, which was a student visa, without having disclosed the fraud practised in obtaining the first visa. It was not until May 2012 that the applicant applied for a protection visa. In that application for the protection visa, in response to identifying why the applicant left her country of domicile (Nepal), she was found to be a citizen of Nepal and her application was assessed by the Tribunal with Nepal as the receiving country. The applicant relevantly explained in answer to question 43 of her migration application (CB 18):
As I was not treated well by members and relatives of my former husband and I was also in fear of being raped and assaulted, I could not stay in Nepal without my former husband [name withheld]. I left Nepal to accompany my former husband for my safety reasons. My first marriage was collapsed due to domestic violence. I am a victim of domestic violence. I will provide a detailed statement shortly in my script and English translation to follow.
In response to the question, “Have you experience harm in that country?” the applicant said in the application (CB 19):
I suffered harm when domestic violence occurred during the period of my previous marriage (emphasis added). I will provide a detailed statement to follow.
In this case, it is clearly the position that the applicant, very sadly, suffered domestic violence during her marriage to her first husband. When that marriage came to an end, she started living with her sister. Whether she suffered any ongoing violence after the marriage came to an end and she was living with her sister was a matter on which her evidence was inconsistent before the delegate and in which, in fact, the delegate did not accept the applicant’s evidence that the violence continued. The application itself suggests, as identified above, that the violence was only during the period of the previous marriage.
In answer to the question, “What do you fear may happen if you go back to the country?” the applicant said (CB 19):
I fear physical harm, sexual assault and emotional wound. Please see the statement which will be provided soon.
In the answers to each of the three questions the applicant was drawing attention to the potential statement that would elaborate on her claims. When asked, in question 46, “Who do you think may harm/mistreat you or mistreat you if you go back?”, what was put in was (CB 20):
Friends, relatives, and members of my former husband. I will discriminated by conservative people as well. Please see the statement which will be provided soon.
The statement that was then provided by the applicant, dated 29 August 2012, set out in detail the sad history of her marriage with her first husband and the violence, in part from alcohol consumption, that she suffered at the hands of her first husband. That statement identified that, as follows (CB 46):
I was divorced on 29 March 2004. Even after my divorce, he continued to abuse me. He continued to rape me while I was in Nepal. He had been cultivating his control over me through verbal abuse. He told me I was disgusting, stupid, a real idiot. I was tired of feeling trapped, even after the divorce.
There was no reference to any harm that the applicant had suffered from the relatives of her first husband. There is no reference to any treatment by her at the hands of the relatives of her former husband, and there is no articulation of any claims to harm, in that statutory declaration, at the hands of the husband’s relatives.
There was a passing reference to the applicant being an outcast and that she would not be protected from my former husband or other enemies. The reference to or other enemies was not supported by any assertion relating to who the enemies were, or that the applicant had suffered any harm at the hands of any enemies, or that the applicant feared that she had been subjected to abuse by particular people that could be identified as enemies, and there is nothing linking the reference to other enemies to the passing reference of the husband’s relatives.
More materially, when the delegate came to evaluate the claims of the applicant the law firm Parish Patience had been engaged on behalf of the applicant, and it summarised in its letter of 8 October 2012, in four different parts of what was a very lengthy letter, the nature of the claims of the applicant. The claims were, in summary, that she was a Nepali single woman, that Nepali single women are without the protection of male relatives, as a social group, and that she was a Nepali single woman facing economic hardship, as well as clearly having identified fear from her husband. Nowhere in the solicitor’s letter was it advanced that there was an essential claim or integer relating to fear from the relatives of the applicant’s former husband.
It is clear from the delegate’s decision of 27 November 2012 that the claims advanced by the applicant were based on her fear of her husband, and her fear of being a single woman in Nepal being harmed by society. Her claims were carefully addressed by the delegate, who materially said, “I am not convinced that this abuse continued after her divorce”, and also rejected a specific event that the applicant advanced. The delegate found that the applicant was not a person who had a real chance of being persecuted for a Refugees Convention reason and that the applicant’s fears of persecution were not well-founded. The delegate found that the respect of the complementary protection, face the risk of significant harm if returned to Nepal.
The Tribunal conducted a hearing that took place on 9 October 2013 at which the applicant attended and, after the hearing, the applicant's solicitors, Parish Patience, provided further submissions on 16 October 2013. The applicant’s solicitors again summarised the claims which were being advanced on behalf of the applicant, in a way that made no reference to any fear of violence from the applicant’s former husband's relatives.
The Tribunal carefully identified the applicant's claims referable to the fear of violence from her former husband and the sad abuse that she suffered during the period of that marriage, as a result of which she had two children, one of which is a son who is still living with her ex‑husband. Part of the applicant's claim was that she would be treated differently because she's a divorcee, and she was also concerned that she may be treated differently because of allowing her daughter to marry an Australian man.
The Tribunal carefully addressed the applicant's claims in respect of the basis for her belief that her first husband would harm her, in the context of which the Tribunal said:
34. I told the applicant that I inferred from her lack of contact with him that she did not know anything of her first husband’s current circumstances, for example whether he had remarried, or had left Nepal or was even still alive. The applicant responded that she thought she would have heard if any of these things have happened.
The Tribunal also addressed her concern in respect of being a single woman in Nepal and that she might be blamed for allowing her daughter to remarry.
Materially, in para.52, the Tribunal expressed some concern as to the veracity of the applicant's evidence as to the continuation of assaults after the marriage broke down in 2004, prior to her departure in late 2008. And the Tribunal said in that regard:
52. … In addition it is difficult to see how her first husband could have been seriously assaulting her at her sister’s house several times each week when (according to the evidence she gave me at the tribunal hearing, and which I prefer to the evidence provided in her subsequent statutory declaration) her sister was not working outside the home and was therefore frequently present.
It was clearly open to the Tribunal to have that concern in respect of the applicant's credibility in the assertions of continued assault after the separation in 2004. The Tribunal nonetheless said in para. 53:
53. However I cannot confidently find that she was not being assaulted by her ex-husband up to the time of her departure for Australia in 2008 and for that reason I propose to consider whether there is a real chance she might be harmed by him in the reasonably foreseeable future.
In the context of having said that the applicant's son was living with the former husband, or the first husband, the Tribunal then found:
54. It is now some 5½ years since the applicant last had any contact with her ex-husband. His circumstances and whereabouts are entirely unknown to her, as is his current attitude toward her. Whether he remains motivated to harm her, or in a position to do so, is not known to her and therefore is not known to the Tribunal. Her view is that if he had remarried, died, left the country or presumably whether something else significant had happened to him, someone would have told her. That is not a sound basis for finding that his circumstances have not changed since 2008.
The applicant's first ground in the application sought to attack the finding of the Tribunal made in para.55 as follows. The essence of the argument developed was that there had been a failure to properly apply the real chance test, because the Tribunal has not addressed and made appropriate findings on the violence and history of the relationship with the first husband.
It is clear from the reasons of the Tribunal that I have referred to above, that the Tribunal made very careful findings in relation to that history and took that history into account in applying the real chance test in respect of the finding of fact made in para.55. That finding of fact was open and reflected a correct application of the real chance test on the material before the delegate. There is no substance in the first ground of the amended application.
The second ground asserts that an essential integer, in essence, of the applicant's claim was not addressed, being fear from her husband's relatives. It is clear from the history that I have identified, that the assertion that fear of violence from her husband's relatives was not an essential integer of the applicant's claim. Her qualified reference to fear concerning relatives of the former husband was one that was not an essential integer of the claim advanced by the applicant.
When read in light of the statutory declaration to which the applicant clearly intended to refer in elaboration of the claims, and given the legal representation on behalf of the applicant both before the delegate and before the Tribunal, it is clear that the essential intergers of the claims advanced by the applicant were properly considered and the subject of proper findings that were open to the Tribunal on the material before it.
In those circumstances, the second ground is also without substance. In these circumstances, it is not necessary to set out the other findings of the Tribunal, which am satisfied were open as a result of a meaningful hearing. The applicant's claims were properly addressed according to law. In these circumstances the grounds of the amended application are each without substance. In these circumstances, the proceedings are dismissed.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 3 March 2013
0
2