SZUMD v Minister for Immigration

[2015] FCCA 1485

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUMD v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1485

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal (Tribunal) – application to show cause – whether there is an arguable case that it was not reasonably open to the Tribunal to find the applicant gave inconsistent evidence – whether it was reasonably open to the Tribunal to make findings against the applicant – no arguable case for the relief sought in the application – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12

Migration Act 1958 (Cth), ss.477(1), 477(2)

Applicant: SZUMD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1523 of 2014

Judgment of: Judge Manousaridis

Hearing date: 15 May 2015

Date of Last Submission: 29 April 2015

Delivered at: Sydney

Delivered on: 4 June 2015

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents: Ms F Taah of
Australian Government Solicitor

ORDERS

1. Pursuant to s.477(2) of the Migration Act 1958 (Cth) the time for filing the application for judicial review of the decision of the second respondent made on 30 April 2014 be extended up to and including 5 June 2014.

2. Pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the application is dismissed.

3. The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1523 of 2014

SZUMD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) of an application for judicial review. That application relates to a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a protection visa.

2. The application for judicial review was filed one day after the 35 day period of the date of the Tribunal’s decision prescribed by s.477(1) of the Migration Act 1958 (Cth) (Act). The applicant, therefore, requires an order under s.477(2) of the Act extending the 35 day period prescribed by s.477(1) for the filing of an application for judicial review of the decision of the Tribunal.

3. The Minister does not oppose the Court making an order under s.477(2) of the Act. Given the applicant was only one day out of time, I consider it is in the interests of the administration of justice that I make an order extending the period under s.477(1) of the Act by one day. I will therefore consider whether the application raises an arguable case for the relief it seeks. In order to determine that question, it will be necessary first to set out the applicant’s claims for protection, and the Tribunal’s reasons for not accepting the applicant’s claims.

Claims for protection

1. In her application for a protection visa, the applicant claimed she came to Australia to avoid the very suppressive culture against girls in India.[1] The applicant’s family is very traditional and maintains fundamental social and religious views which the applicant does not like.[2] The applicant claimed that on the last occasion she returned to India her parents expressed their desire for the applicant to marry a man of their choice and asked the applicant to become engaged to a man because they had given their word to the man’s family.[3] The applicant had not seen or spoken to the man. When the applicant resisted her family’s wishes, the applicant’s father slapped her on the face and stopped her from going out.[4] The applicant was told by her father and uncles that she will have to marry someone of their choice as it was a matter of honour.[5] The applicant’s uncle threatened to kill the applicant if she did not agree.[6]

   [1] CB17

   [2] CB17

   [3] CB18

   [4] CB18

   [5] CB18

   [6] CB18

2. The applicant claimed she feared she will be killed by her relatives if she returns to India.[7] The applicant said she did not want to return to India and be forced to marry a person whom she has never met and never known.[8] The applicant said she wanted to get married in Australia. And she is in love with someone she met in Australia. If the applicant marries in Australia and returns to India she will become an outcast and her and her future husband will be at risk of being killed by the applicant’s relatives to save the applicant’s family’s honour.[9] The applicant said the authorities in India are highly corrupt and that they will not protect her. The applicant also said the authorities normally say that girls should listen to their parents and should marry early.[10]

   [7] CB18

   [8] CB18-19

   [9] CB19

   [10] CB20

3. Before the Tribunal, the applicant gave evidence which in one respect was very different from the claim she made in her protection visa application. Before the Tribunal, the applicant said that she was still in love with a young man from the Punjab whom she met in Australia in 2008, but who returned to India in 2009. The young man was of a different caste from the applicant and, when the applicant informed her parents they were in love with each other, the applicant’s father shouted that the caste was not matching.[11]

   [11] CB80, [25]

Tribunal’s reasons for decision

1. The Tribunal did not accept that if the applicant returns to India her family will force her to marry a person of their choice against her will. That is so because that would be inconsistent with how, on the applicant’s evidence, her family had actually treated her.[12] The applicant’s father offered to arrange a marriage to an Australian permanent resident so the applicant could come to Australia, but the applicant refused the offer, choosing instead to spend a year studying English to satisfy the IELTS test and obtain a student visa;[13] her father allowed the applicant to study IELTS, supported her while she did so, supported her to come to Australia, and then supported her studies financially.[14] This showed that the applicant’s father allowed her to make her own decisions and has supported her when she did.[15] Further, the applicant said that before she came to Australia she was not forced to do anything.[16] For those reasons also, the Tribunal did not accept the applicant’s claim that her parents and uncles are very dominating and make all the decisions.[17]

   [12] CB82, [36]

   [13] CB81, [34]

   [14] CB81, [34]

   [15] CB81-82, [34]

   [16] CB82, [36]

   [17] CB82, [37]

2. The Tribunal accepted that the applicant’s family have expressed a desire that she marry, and that they would press her to marry if she returned to India.[18] The Tribunal, however, did not accept that such conduct would be serious or significant harm.[19]

   [18] CB82, [36]

   [19] CB82, [36]

3. The Tribunal also considered country information relating to arranged marriages of persons of the Sikh faith. The Tribunal noted the country information states that in Sikhism arranged marriage does not mean forcing a boy or girl into wedlock of the parents’ choice. It means agreeing to marriage proposed by mutual discussion between the boy and the girl on one side and his and her parents and relatives on the other. The Tribunal found that “[s]uch conduct would be consistent with the past behaviour of the applicant’s family”.[20]

   [20] CB82, [38]

4. The Tribunal also did not accept the applicant’s evidence that when she returned to India in 2010 her parents wanted her to marry a boy they had chosen, or that her father had slapped her or prevented her from going out. The Tribunal found “If her father could stop her going out and her uncles were threatening to kill her, the Tribunal does not accept that she would have been able to leave and return to Australia”.[21]

   [21] CB82, [39]

Grounds of application

1. The applicant has raised 5 grounds in her application for judicial review:

   1.     Not satisfied with case officer decision.

   2.     She misunderstood some of my issues.

   3.My evidence is same as my application made in March 2013.

   4.I told my case officer that I am in relationship with someone who is in India but before he was living in Australia it’s been 6 years he been back… If I go in India now I can’t get married with him, my parents will force me to get married somewhere else which I can’t do.

   5.There is so many things in my RRT decision from which I’m unhappy she tried to make my [sic] that I was lying

2. These grounds, considered alone, do not disclose an arguable case for the relief the applicant seeks. At the hearing, however, the applicant, who is not legally represented, made a number of submissions.

3. First, the applicant submitted the Tribunal was incorrect to find that the evidence the applicant gave before the Tribunal concerning her relationship with a boy who was in Australia until 2009 but then returned to India was inconsistent with the claim the applicant made in her written application for a protection visa. The question this submission raises is whether it was reasonably open to the Tribunal to find the applicant made inconsistent claims. That requires me to compare what the Tribunal recorded the applicant said at the hearing before the Tribunal, and what the applicant said in her written application.

4. According to the Tribunal’s reasons, the applicant said:[22]

   The applicant says that she is still in love with a young man from the Punjab whom she met in Australia in 2008. They had a “small” relationship. His caste is Ghumar. She cannot marry him because he is of a lower caste than her family. He returned to India in 2009 because of family issues. She told her parents that they are in love with each other. Her father asked who he was. He shouted that the caste is not matching. When the Tribunal asked why they cannot marry if she returns to India, the applicant said then they may kill her. Her father was very angry and yelling there is no way you can marry him. What will people say?

   [22] CB80, [25]

5. In her application for a protection visa, the applicant said:[23]

   Because of our traditions. My parents and uncles are very dominating in the family. They take all the decisions. I now want to get married in Australia. I love a boy and he also loves me very much. We have a strong understanding. If I go back to India I shall be forced to marry the boy of their choice. If I will refuse I will suffer harm. I may even be killed. If I marry my lover now and then go back to India, I will definitely become an outcast and to save the honour of the family, my relatives can kill me and my future husband.

   [23] CB19

6. It was reasonably open to the Tribunal to consider these two items of evidence to be inconsistent. The applicant’s evidence before the Tribunal could reasonably be construed as claiming that the applicant wanted to marry a boy who had returned to India in 2009 whereas the claim the applicant made in her application for a protection visa could reasonably be understood as claiming that the person the applicant wanted to marry was then in Australia. There is no arguable case, therefore, that the Tribunal made a jurisdictional error by finding that the applicant gave inconsistent evidence.

7. The second submission the applicant made related to the following paragraph of the Tribunal’s reasons:[24]

   When the Tribunal said that there is country information that groups exist that help inter-caste couples, the applicant said that she asked her father’s sister and brother to help her if she got married. They said no. Do not ask. He is not your caste. The applicant’s evidence was not responsive to the question.

   [24] CB81, [28]

8. The applicant submitted that it did not matter whether or not groups existed to help inter-caste couples. The applicant’s submission, however, only expresses disagreement with the Tribunal’s considering the existence of such groups might have been relevant to the applicant’s claims for protection. That does not disclose any arguable case of jurisdictional error. There is no arguable case it was not open to the Tribunal to consider relevant country information that indicated the existence of groups that helped inter-caste couples.

9. The third submission the applicant made related to the following passage of the Tribunal’s reasons:[25]

   The applicant did not claim that she wishes to marry him. She did not indicate that he would be part of her life if she remained in Australia. She said that she did not wish to return to India because she does not wish to change her life. That she does not wish to change her life indicates that she has no wish or plans to marry anyone at the moment.

   [25] CB81, [31]

10. The applicant disagreed with the Tribunal’s conclusion contained in the last sentence of this passage. Again, disagreeing with a finding by the Tribunal does not by itself raise an arguable case of jurisdictional error. There is no arguable case it was not open to the Tribunal to make such finding.

11. The fourth submission the applicant made related to the following passage of the Tribunal’s reasons:[26]

    The Tribunal finds that the applicant does not want to return to India because she does not want to return to life in a village, having lived and worked in Australia in a city. It does not accept that the life in the village she described is serious or significant harm.

    [26] CB81, [33]

12. The applicant submitted she disagreed with this paragraph. She said that she submitted to the Tribunal that she did not wish to return because her life would be in danger. She submitted she told the Tribunal the truth, and that it was very hard to justify everything to the Tribunal. These submissions also raise no arguable case of jurisdictional error. They only express disagreement with the Tribunal’s findings, and invite this Court to engage in merits review which it has no jurisdiction to undertake. There is no arguable case it was not open to the Tribunal to make the findings it made.

13. The fifth submission the applicant made related to paragraph 38 of the Tribunal’s reasons in which the Tribunal referred to country information relating to how Sikhs arrange marriages, to which I have already referred. The applicant submitted that there is a difference between what is written down and what people say. Again, these submissions do not disclose an arguable case of jurisdictional error. There is no arguable case it was not open to the Tribunal to rely on the country information on which it did rely.

14. The applicant also suggested that she had difficulties because she did not have an interpreter at the hearing. That submission raises no arguable case of jurisdictional error. The applicant did not request an interpreter. More importantly, there is nothing in the reasons of the Tribunal that indicates the applicant indicated she may have needed an interpreter; and the Tribunal’s reasons indicate the applicant had no difficulty in understanding and responding to the Tribunal’s questions.

Conclusion and disposition

1. The application does not disclose an arguable case for the relief it seeks. I propose, therefore, to dismiss the application and order that the applicant pay the Minister’s costs.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 4 June 2015