SZUTR v Minister for Immigration

[2016] FCCA 3142

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUTR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3142

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 the Tribunal made incorrect findings of fact, failed to take relevant considerations into account, failed to consider a claim, made an arbitrary decision and misapplied the complementary protection test.

Legislation:

Migration Act 1958, ss.36, 474

Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZUTR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2022 of 2014

Judgment of: Judge Cameron

Hearing date: 10 November 2016

Date of Last Submission: 10 November 2016

Delivered at: Sydney

Delivered on: 10 November 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms S. He of DLA Piper Australia

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $4,720.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2022 of 2014

SZUTR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of India who arrived in Australia on 26 January 2009.  On 9 November 2012 she lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that she feared persecution in India because she had married a man from a different culture.  On 8 March 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  She was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court cannot rehear the applicant’s 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 of the 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 applicant’s claim for protection.  As summarised by the Tribunal, the applicant relevantly made the following claims in her protection visa application:

   a)she had a strict Sikh religious upbringing.  Her father was a priest and a respected member of the Sikh community in their home district;

   b)she married in India in 2008 but she and her husband divorced in June 2011 in Australia;

   c)she met an eighty-year old Italian man who was resident in a nursing home where she worked.  They developed an attachment and married in August 2012.  They did not tell their families and she had not obtained permission from her family to marry him;

   d)a week after her wedding, her former husband’s family found out and he and they spread the news in India.  The news also spread within the Sikh community in Sydney;

   e)on the Sunday after her wedding, a Sikh priest called her to the temple.  She did not have a traditional Sikh marriage feast because she had not wanted to introduce “an old man” to the Indian community and had been afraid to face the Sikh community as she had married against Sikh custom;

   f)many Sikhs advised her to abandon her marriage and others asked the Sikh priest not to allow her to attend temple ceremonies;

   g)she became depressed and decided to visit her parents in India to relieve her depression.  She arrived in India on 6 October 2012.  As a result of her second marriage, the people in her village were abusive and treated her as an untouchable;

   h)on the day she arrived in her village her mother advised her to leave the village before sunrise the next day because everyone knew about her second marriage and she had become an outcast.  She then went and spent the night at a guesthouse with her sister.  In the early morning her brother brought two men to protect her;

   i)at about 10am a group of about thirty people, including the local Sikh priest, arrived at the guesthouse.  She wanted to call the police but her brother dissuaded her.  Her brother left and returned with the village head who calmed the situation.  The village head then took her to his house and told her to leave the country because she could be killed, tortured or assaulted by fanatical Sikhs and by people supportive of her former husband.  She managed to obtain an air ticket and left India; and

   j)if she returned to India she faced trauma, torture and harassment.  Most people in her village were strict followers of the Sikh religion and her husband had created a poisonous atmosphere against her so she would have no protection.

2. The applicant made the following additional claims at a Tribunal hearing on 4 November 2013:

   a)although her first marriage had been arranged because her family had not wanted her to travel to Australia to study by herself, she had believed it to be a genuine marriage.  She and her first husband arrived in Australia in January 2009 and only lived together for two or three months before separating in March or April 2009;

   b)as part of her arranged marriage, her former husband’s parents had agreed to pay for her studies for two years but they only made one payment.  When her fees were due she attempted to telephone her former husband but his phone had been disconnected.  She contacted his parents but they said they did not know where he was;

   c)she married her second husband at the home of one of her maternal cousins and he and his wife were witnesses to the marriage.  They had initially refused to witness the marriage and had told her to think about it;

   d)her second husband moved out of the nursing home three months before they married but they had never lived together.  After their wedding she was driving to his house when she received a threatening telephone call from one of his sons.  She became scared and did not proceed to her husband’s house on that day.  When she went a week later the house was locked, no-one was there and no-one answered the land-line telephone;

   e)she returned to India in October 2012 because her mother was sick.  When the Tribunal put to her that in her protection visa application she had claimed that she had returned because she had been depressed, she said she had returned for both reasons;

   f)on the day after she arrived in her village she went to the temple but people told her father that she was not allowed there because she had married someone from another culture and that he should cut her off or they would kill her.  She had not told her family about her marriage and did not know how the people in her village had found out;

   g)she left her home the next day for another city but the airline would not change her ticket so she stayed in a hotel near her paternal uncle’s house until she obtained another one and left on 17 October 2012.  Her mother arranged the money for her other ticket;

   h)she sought protection because she had married someone who was not a Sikh.  One of her uncles who lived in New Delhi had told her it was dangerous for her to return to her village and had filled out her protection visa application form; and

   i)since her arrival in Australia she had attended a Sikh temple every week.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant was a person 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. For the following reasons, the Tribunal did not accept the applicant’s claim that she was in danger because of her marriage to her Italian husband:

   a)the Tribunal did not accept the applicant’s claim that her former in-laws had found out about her second marriage within one week of her wedding.  The Tribunal accepted that the applicant had been treated shabbily by her first husband and his family.  It also accepted that she had believed her first marriage had been genuine but concluded that her former husband and his family had considered it a sham arranged to get him a visa to travel to Australia.  The Tribunal therefore did not accept that the applicant’s former husband or his family had had any further interest in the applicant once she and her former husband arrived in Australia in 2009;

   b)the Tribunal did not accept the applicant’s claim that news of her second marriage spread within the Sikh community in India.  It noted in that regard that she had claimed that she did not know how the people in her village had known about her second marriage.  It therefore did not accept that anyone in her village did know of her second marriage;

   c)the Tribunal accepted that the applicant’s parents knew of her second marriage because her cousin had witnessed her wedding and her maternal uncle had prepared her protection visa application.  However, it found that her family did not pose any threat to her and that they had been supportive of her.  In that regard it noted that the applicant’s mother had given her money to pay for her return ticket, her uncle had prepared her protection visa application and her cousin and his wife had witnessed her marriage.  The Tribunal accepted that the applicant’s cousin and his wife may initially have tried to dissuade her from entering into her second marriage but it found that the wedding was eventually held at their home and that they witnessed it;

   d)the Tribunal found that there were inconsistencies in the applicant’s evidence about what had occurred when she returned to India in October 2012.  It noted that in her application she claimed that she stayed at a guesthouse in her village but at the hearing she said she stayed at home and that the reference to a guesthouse had been a mistake.  It further noted that at its hearing the applicant claimed that after arriving at her village on 7 October 2012, she left the next day (i.e. on 8 October 2012) and travelled to another city where she stayed at a hotel close to her maternal uncle’s home.  However, a receipt she provided to support her claim showed that she arrived at the hotel on 10 October 2012 and left on 15 October 2012; and

   e)the Tribunal did not accept that news of the applicant’s second marriage had spread within the Sikh community in Sydney.  It found that at least one of the applicant’s second husband’s sons and her cousin and his wife knew of the marriage but that no-else in Australia did.  It noted the applicant’s claim that the Sunday after her marriage a Sikh priest had called her to the temple but found that such conduct would be inconsistent with her fundamental claim that marriage to a person of another culture was not acceptable to Sikhs.  The Tribunal noted that the applicant claimed that she continued to attend temple weekly and found that if her marriage had been unacceptable to Sikhs, she would not have been able to continue attending the temple without difficulty.

Proceedings in this Court

1. In her amended application the applicant alleged:

   1.The Refugee Review Tribunal made a jurisdictional error when it misunderstood and misconstruid the facts.

   Particulars:

   The Tribunal failed to account relevant and integral parts of the Applicant’s claim.  The applicant is a truthfull witness.  Applicant accepts that it might be she was not sure about the timing and date of her movements and travelling time and date but she never mislead the Tribunal telling about circumstances and tense environment in which she lived in India and departed from India.  The Tribunal unreasonably come to conclusion that:

   “there were other inconsistencies in the applicant’s evidence about what happened when she was in India.  She arrived in [her home district] at 9.35 am on 7 October 2012. She claimed that she stayed in guesthouse in her village in her application.  At the hearing she claimed that she stayed at home and said that the guesthouse was a mistake.  The Tribunal does not accept that because it does not accept that her claims are genuine.  On both her accounts, in village.  At the hearing she said that she went to [another city] the day after going to the temple which took six hours. On her evidence, the applicant would have arrived in [the other city] on 8 October 2012.  She claimed that she stayed in a guest house there and provided a receipt to support that claim.  lt shows that she arrived on 10 October and left on 15 October 2012. That is not consistent with her claims.” (Document Book Page 165 Para 51)

   The applicant claims that she was denied procedural fairness when due to inconsistencies in providing details of her movements, her claims for protection were rejected by the Tribunal.  The applicant is human being and because of mental distress she was unable to remember the dates.  She claims that she should not be deprived her claims.  Applicant has a legitimate expectation from a judicial body and it would consider all of the factors and issues when it is determining the application for protection visa.  The Tribunal would account the applicant’s details very seriously.  The Tribunal failed to understand the real core of problems and discredted her evidence.

   2.In making decision, the Refugee Review Tribunal acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations.

   Particulars:

   RRT unreasonably raised doubt over the applicant’s marriage with a 80 Years old man who is not from her Sikh Community and information related about marriage in India and among her Sikh Community in India and Australia.

   The applicant categorically and truthfully said to the Tribunal that how and when she was married and how her former husband disappeared and acted against her by informing the applicant’s community about the marriage with a person from another community.

   The Tribunal raised several irrelevant issues to discredit the facts.

   3.The Tribunal made a Jurisdictional error when it failed to identify accurately the particular Social group from which she has a fear of persecution.

   The applicant submitted that the applicant fears persecution from a Group of extremist Fanatic Sikh Community who never tolerate a Sikh woman should marry with a member of another Community.  Not only that they (Extrimist Sikh Religious Priest ) give strict direction to the woman member of Sikh Community that she should not wear Sari as it is very common in the Hindu family.  Wearing sari is identified as Hindu woman.  The applicant is very known aware of the rigid customary practice of Sikh Community.  Because of fear of resistence she decided to live in a guest house.  The parents helped her to save her from the effects of reaction from the rigid customary practice and consequences from any possible attacks on her due to marriage with the another community.

   The applicant claims that the Tribunal unreasonably discredited the reason for living in a Guest House.  She stayed in Guest house because of fear of harm from the Extrimist Sikh Community of the Village.

   The Tribunal misconstrued the facts and concluded that there was no harm when she lived with the parents or in her village.

   4.The applicant claims that the RRT made a jurisdictional error when it made decision on assumption and probability. The Tribunal’s finding of reasons is Confused and the test for persecution was not applied according to the Rules of the Migration Act

   Particulars:

   The applicant claims that the Tribunal formed the above opinion based on the limited information about the possible harm to the applicant.  The Tribunal ignored all other independent information about the victims of practice of rigid Social behaviours and customs in India. Thousands of woman are killed because of the practice and actions by the extrimists fanatic religious practices despite the Government’s efforts to make a harm less and secular society in India.  The applicant claims that she is treated as discrate or untouchable when a Sikh woman is married to another caste or community.

   5.The Tribunal failed to apply the correct test in relation to the complementary Protection Provision contained in section 36(2) (aa) of the Migration Act 1958. The Tribunal made a jurisdictional error when it did not follow Rules of Real Risk Test of persecution and harm.

   Particulars:

   The applicant claims the Tribunal, which is a independent judicial body.  The applicant has a legitimate expectation from the Tribunal that it would assess the applicant’s claim according to required procedural fairness.

   The RRT ignored the relevant consideration related with complementary Protection set out in s 36(2) (aa).

   The harm or the mistreatment feared by the applicant on return is for reason of one or more of five grounds of recognized in the Refugee Convention.

   Applicant claims that his fear of harm or mistreatment is for the Convention reasons of political opinion and membership of the particular social group.

   Applicant’s fear of harm is well-founded and that there is a real chance that he will suffer persecution if he returned to India.

   (Errors in original)

2. In her written submissions filed on 7 November 2016 the applicant added the following matters to the particulars to the fifth allegation:

   She has fear from the her former husband’s who has intention to harm her when she will return back to India.  The Tribunal failed to identify the issue.  She has been branded by propaganda created by her former husband that she is married to a non-Sikh person and she should not be allowed to live in Sikh community.

Submissions at hearing

1. At the hearing of this application the applicant made a number of submissions which are worth considering at this point.  Those submissions can be encapsulated in the applicant’s assertion that the Tribunal failed to consider her claims properly. 

2. The applicant did not identify what claim was or which claims were not properly considered.  She did refer to her claim to fear harm because of her second marriage, arising out of the fact that the Sikh community in her home village in India and the Sikh community in Sydney knew of it, but those matters were central to the Tribunal’s considerations.  In that regard, the basis of the applicant’s claim to fear harm was set out in para.10 of the Tribunal’s decision where it said:

   After one week, her in-laws found out.  “He” was very angry because she married a man who was not a Sikh and was old.  The news spread in the Sikh community in Sydney and India.

   The Tribunal dealt with that issue at para.49 of its reasons where it said:

   The Tribunal does not accept her claim in her application that her former in-laws had found out about her second marriage within one week of after [sic] marriage and the news spread to the Sikh community in Sydney and India.  The Tribunal finds that she was treated very shabbily by her first husband and her in-laws.  She and her husband separated in March or April 2009 and she initiated the divorce in 2011.  She tried unsuccessfully to telephone him around March 2009. His family broke their agreement to pay her student fees for two years.  The Tribunal finds that the marriage from the point of view of her husband and his family was a sham arranged in order to get him a visa to come to Australia to work.  It does not accept that her former husband or his family has had any interest in the applicant since her husband arrived in Australia with her in 2009.  She provided no probative basis for the assertion she made.  She claimed at the hearing that she did not know how people in her village knew of her marriage.  The Tribunal does not accept that anyone in her village knows of her marriage to her Italian husband.

   That is to say, the fundamental factual matter on which the entirety of the applicant’s claims were based was rejected by the Tribunal.

1. Really what the applicant was saying in her submissions at the hearing of this application was that the Tribunal should have reached findings on questions of fact different from the ones which it actually reached.  The findings arrived at by the Tribunal were not totally unsupported by evidence or ones which no reasonable decision-maker would have made.  They are therefore not ones to which jurisdictional error attached. 

2. The matters which the applicant raised at the hearing of this application have not identified a basis upon which the Tribunal’s decision should be set aside.

Ground 1

1. In the first ground of the amended application the applicant complained that the Tribunal did not believe her and unreasonably concluded that factual contradictions in her claims meant that those claims were inconsistent.  Again, the applicant was really saying nothing more than that the Tribunal reached factual conclusions with which she disagreed and which, presumably, she believes were wrong.  However, complaints of that sort do not raise questions of jurisdictional error.  Even if the Tribunal had made findings of fact which were incorrect, as long as such findings were not jurisdictional facts they would be errors within jurisdiction.

Ground 2

1. It is apparent from its reasons that the Tribunal did not doubt the applicant’s claim to have married an elderly Italian man.  To that extent, the matters raised in the second ground of the application have not been made out.  The other element of the allegation concerned the activities of the applicant’s former husband and his family.  As noted already, the Tribunal did not doubt that the applicant had been treated very shabbily by them but, even so, it did not accept that they would have bothered to gossip about her as she alleged.

Ground 3

1. Contrary to the implication in the third ground of the amended application, the applicant did not claim to fear persecution because she was a member of a particular social group.  The claims she did advance were not made out because, as discussed earlier, the fundamental factual assertion on which they were based was not accepted. 

2. It should also be observed that the particulars of the third ground of the amended application were unrelated to any claim to fear persecution or harm which the applicant advanced before the Tribunal.  Consequently, they disclosed no basis for a finding of jurisdictional error.

Ground 4

1. The essence of the fourth allegation made in the amended application was that the Tribunal’s decision was arbitrary and capricious in that it was based on assumptions and guesswork, rather than evidence.  However, as explained earlier in these reasons, the principal factual finding arrived at by the Tribunal, which was central to its ultimate conclusion, was one which was open to it on the evidence. 

2. The other aspect of the fourth ground of the amended application which is to be found in the particulars, namely that the Tribunal “ignored all other independent information about the victims” of strict social norms in India, was advanced without the independent information referred to having been identified.  It is not apparent that the applicant provided independent information of this sort to the Tribunal or that the Tribunal had such material before it through its own resources.  In any event, the matter in this case turned on the Tribunal’s conclusion that the applicant’s former husband and his family had not gossiped about her in her home village. 

Ground 5

1. The fifth ground of the amended application and its particulars, including the particulars added in substance by the applicant’s written submissions, show a degree of confusion.  The allegation is that the Tribunal erred in its application of the complementary protection test and yet a number of the particulars of the allegation referred to the Convention test.  It might also be noted that the particulars which relate to the Convention test appear to come from somebody else’s application.  Whatever the case, the central matter to be noted in connection with this allegation is that, as with the applicant’s claims based on a fear of persecution, the claims to engage complementary protection obligations depended on the Tribunal accepting the fundamental fact underlying the claims, namely, that the former husband and his family spread the news of her second marriage – a matter which the Tribunal did not accept.

Conclusion

1. None of the matters which the applicant raised, either at the hearing of this application or in her amended application, provided a basis upon which the Court would find that the Tribunal’s decision was affected by jurisdictional error. 

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 6 December 2016