SZVAX v Minister for Immigration

[2016] FCCA 457

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVAX & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 457

Catchwords:
MIGRATION – Judicial review of decision of Refugee Review Tribunal (Tribunal) not to grant applicants Protection (Class XA) visas (Protection visas) – applicant parents claim they fear the grandparents and extended family would coerce them to subject their applicant daughters to female genital mutilation (FGM) or that the grandparents themselves would ensure applicant daughters would undergo FGM – whether Tribunal considered evidence given by mother applicant that she had considered relocating within Egypt – whether such evidence was important to the reasoning on which the Tribunal relied for not being satisfied the applicant parents were credible – no jurisdictional error.

First Applicant: SZVAX

Second Applicant: SZVAY

Third Applicant: SZVAZ

Fourth Applicant: SZVBA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2521 of 2014

Judgment of: Judge Manousaridis

Hearing date: 26 March 2015

Date of Last Submission: 23 March 2015

Delivered at: Sydney

Delivered on: 4 March 2016

REPRESENTATION

The third applicant appeared in person assisted by an interpreter

Solicitors for the Respondents: Mr M Glavac of Clayton Utz

ORDERS

1. The application is dismissed

2. The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2521 of 2014

SZVAX

First Applicant

SZVAY

Second Applicant

SZVAZ

Third Applicant

SZVBA

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The four applicants are a family – husband and wife, and their two daughters. They are all citizens of Egypt.

2. On 24 May 2013 they applied for protection visas. They claimed protection because the parents feared that, if they return to Egypt, their daughters would be subjected to female genital mutilation (FGM) at the behest of the daughters’ grandparents or extended family. A delegate of the first respondent (Minister) refused the application, and the second respondent (Tribunal) affirmed the delegate’s decision, but on different grounds. The applicants now apply for judicial review of the Tribunal’s decision.

The applicants’ claims for protection

1. The alleged facts on which the applicants claimed protection were first set out in the applications made on behalf of the daughters.[1] In one of those applications, it was claimed the daughter would be forced to undergo FGM if she returned to Egypt because of her family’s “religiously and culturally strict” background.[2] It was claimed the parents are against the daughter being subjected to FGM, but the parents have no say because the grandparents and extended family will not accept this. A cousin of the daughters was recently subjected to FGM and “I am next on the list”. The parents were told that the daughter “will be taken and the procedure done”. And the daughter’s extended family believe the parents “are living against the religion”. [3] In the application made on behalf of the other daughter, it was claimed a decision had been made “to circumcise my sister and the same will happen to me”.[4] In both applications, it was claimed the authorities would not protect the daughters because the “authorities do not get involved in cultural and religious issues”.[5]

   [1] CB1-15

   [2] CB7

   [3] CB7

   [4] CB67

   [5] CB10 and CB69

2. Before the Tribunal, the third applicant (the mother) said she had undergone FGM when she was 7 or 8 years of age as a result of which she suffered negative consequences, and from which she wanted to protect her daughters.[6] FGM was “a traditional thing”. The parents had no power to say no to their daughters being subjected to it.[7] The mother gave birth to their first daughter in Egypt while the father was in Australia. Just before she obtained her visa, the mother was told that when they return to Egypt the first-born daughter will be circumcised. Four months after the mother arrived in Australia, she was told that a niece who was four months older than her first-born daughter had undergone FGM.[8] The mother informed her parents she and the fourth applicant (the father) would not consent to her daughter undergoing FGM. That did not lead to a cessation in the relationship between the parents and their families, but obstacles arose, and the grandparents threatened the mother and the father that the grandparents had the right to take away their daughters.[9]

   [6] CB142, [8]

   [7] CB142-143, [8]

   [8] CB143, [9]

   [9] CB143, [10]

3. The mother was asked how she and the father could be forced to have their daughters undergo FGM when FGM has been illegal in Egypt since 2008. The mother said that the grandparents could take their daughters behind their backs. The mother claimed that happened to her sister’s children.[10] The mother was also asked whether she considered relocating. As recorded in the Tribunal’s reasons for decision, the mother said that everyone knows everyone and that people would ask at school, and their neighbours would ask if the children had undergone FGM, that females who had not undergone FGM were looked on as being morally bad, and that a marriage may not go ahead if a mother-in-law were to discover the woman had not undergone FGM.[11]

   [10] CB143, [12]

   [11] CB143, [13]

4. The mother was asked why she “hadn’t looked at the possibility of moving”, given that:[12] there were 80 million people in Egypt, so that it was impossible for everyone to know everyone; country information indicated there were no impediments to internal movement in Egypt; country information indicated FGM was not uniform in Egypt, with Luxor having a 90% incidence of FGM whereas the mother’s province had an incidence of 49.8%, and Port Said an incidence of 17.9%; and that the mother had a degree and the father was employable, so the mother and father could move to avoid the likelihood of the grandparents “secretly doing FGM on their daughters”. The mother claimed she could not live on her own in Egypt, and she could not escape the pressure. She said that in Port Said people still forced females to undergo FGM, and their families would not leave them in peace and would still try and take their children.[13] The mother claimed that society in Egypt looks at girls in a different way, and eventually people would find out their daughters had not undergone FGM.[14]

   [12] CB143, [14], [15]

   [13] CB144, [16]

   [14] CB144, [17]

The Tribunal’s decision

1. The Tribunal did not find the mother and father to be “entirely reliable, credible or truthful witnesses, and that some elements of the claim were fabricated in order to be granted a protection visa”.[15] This finding was based on a number of matters.

   [15] CB145, [27]

2. First, country information indicated that although in 2008 91% of women aged between 15 and 49 had been subjected to FGM, there was evidence the practice may be declining, and that FGM is prevalent but not uniformly practiced in Egypt, it being more common in the rural areas of Upper Egypt amongst the more poorly educated. The rate of FGM practised in the province from which the applicants came had a rate of 49.8%. In Cairo the rate was 36.5%, and in Port Said the rate was 17.9%.[16] The Tribunal recorded in its reasons that the mother was asked why, if it took the Tribunal 10 minutes of internet research to find these facts, the mother was not aware of this information. The mother was also asked why, if she claimed this fear of FGM, she “hadn’t looked at the possibility of moving”.[17] The Tribunal found that “[t]his”, that is, the mother’s not having looked at the possibility of moving, to be “inconsistent with her claim that FGM was everywhere in Egypt”, and that “given Egyptians were free to move in Egypt it was a personal choice not to”. That, in turn, raised questions “regarding her claim to be unable to move to avoid it”.[18]

   [16] CB145, [28], [29]

   [17] CB143, [15]

   [18] CB143, [15]

3. Second, the Tribunal did not accept the applicants were under great pressure from the grandparents to inflict FGM on their daughters. The applicants claimed the paternal grandfather supported the applicants financially by bank transfers or by money he gave to people passing through the area, but ceased doing so in January 2014 after the grandparents realised the parents would not accept FGM for their daughters. The Tribunal did not accept this. In response to the Tribunal’s request that the parents provide evidence of the transfers, they only produced evidence of one payment, being a payment for $5,000 made in 2010, and a claim that two friends had brought money from Egypt in August and November 2013.[19]

   [19] CB146, [30]-[31]

4. Third, the Tribunal did not accept the grandparents would try, or be allowed to take the daughters from their natural parents because the parents refused to subject them to FGM. The parents were unable to explain how this could legally be done, particularly in light of FGM having been made illegal in Egypt in 2008. The only way the parents suggested this could be done was by the grandparents taking the daughters behind the backs of the parents. The Tribunal did not accept this could be done, given that the mother was a homemaker.[20]

   [20] CB146, [32]

5. Fourth, the Tribunal did not accept the mother’s “niece(s)” underwent FGM, or had been taken by the grandparents for that to occur. The Tribunal’s not accepting this was in part based on the Tribunal’s not being satisfied there was any societal or grandparental pressure to have FGM performed on the daughters. Additionally, however, the mother was informed in February 2013 that her niece had undergone FGM, but the applicants did not apply for protection until 18 May 2013. The Tribunal found that the delay was “not indicative of someone who lives in fear of their daughters being subject to FGM”.[21] The Tribunal did not accept the mother’s explanations for the delay, namely, that she was pregnant, and that “this was the time it took for them to make a decision”.[22]

   [21] CB146, [33]

   [22] CB146, [34]

6. Fifth, the mother and father displayed no interest in researching the issue of FGM as practised in Egypt.[23] The parents did not explore the possibility of relocating, even though country information indicates there were no impediments to doing so and that there is an area only 90 kilometres from where the parents resided in Egypt which has a rate of FGM of less than 20%, being the lowest rate of FGM in Egypt.[24]

   [23] CB146, [35]

   [24] CB146-147, [35], [36]

7. The Tribunal, therefore, did not accept that the daughters would be made to undergo FGM by their parents or grandparents, or that the daughters would face any societal pressure to, or suffer persecution if they were not to, undergo FGM. Also, the Tribunal did not accept that females who had not undergone FGM were looked on as morally bad, or that marriages might not go ahead if this were discovered because this was not supported by independent country information.

Grounds of application

1. The application for review contains six grounds of review.

First ground

1. The first ground is as follows:[25]

   At point 36 of the decision record the RRT states “...they have never explored the possibility of relocating…” This is incorrect. At 44:43 of the hearing recording CD, in response to the issue of relocating the applicant stated “…yes I have thought about it but it does not work to live alone” The RRT did not acknowledge that the applicant had thought of the issue.

   [25] I have emphasised that portion of the ground which I consider contains the essence of the ground.

2. In effect, the applicants claim the Tribunal did not consider the mother’s evidence that she had given thought to relocation before the time the Tribunal had asked her about relocation. There is no transcript of the hearing before the Tribunal, but I have been provided with an audio recording of the hearing, and have listened to those parts which I have considered necessary or potentially useful having regard to the grounds raised by the applicants. According to my hearing of the recording, the following was said:[26]

   MEMBER:What about, have you thought about moving, relocating in Egypt?

   MOTHER:Yes, I know, I have thought about it; but where would I move to? You know in Egypt everyone knows everyone. It doesn’t work, you know, like to live on my own. And even if I did, at school they will ask is the daughter circumcised. Will the neighbours say, you know, the first question I will be asked is have the girls been circumcised. The uncircumcised girl is looked upon as a girl that is not the normal, not the norm, is something bad, morally bad. . . . .

   [26] At 44:29-45:33

3. The Minister submits the first ground on which the applicants rely is refuted on the face of the Tribunal’s reasons for decision.[27] The Minister further submits that the Tribunal’s finding that the applicants “have never explored the possibility of relocating” must be read together with the Tribunal’s rejection of the applicants’ professed reasons for discounting the possibility of relocation. That was based on the Tribunal’s having put to the applicants that in a country of 80 million people it was impossible for everyone to know each other; that people are free to relocate within Egypt; that the incidence of FGM is not uniform in Egypt; and the parents could not establish why they would inevitably succumb to social pressure to have FGM carried out on their daughters even if they relocated within Egypt.[28]

   [27] First Respondent’s Outline of Submissions, [15]

   [28] First Respondent’s Outline of Submissions, [16]

4. The passages in the Tribunal’s reasons to which the Minister refers as refuting the applicants’ claim do not expressly refer to the mother’s evidence that she had thought about relocation. The passages only refer to the reasons the mother gave at the hearing for her believing she could not relocate. I am nevertheless not satisfied that the Tribunal did not consider the mother’s evidence that she had given thought to relocating in Egypt. The Tribunal’s finding on which the applicants rely as indicating the Tribunal did not consider the mother’s evidence is that the parents “never explored the possibility of relocating”.[29] That is different from a finding that the mother did not think about relocation. If anything, the finding implies the Tribunal found or assumed that the parents had thought about relocation, but they did not explore the possibility of relocation.

   [29] CB147, [36]

5. Even if it is assumed the Tribunal did not consider the mother’s evidence that she had thought about relocating, but instead assumed the mother gave no thought to relocation, it would have made no difference to the decision the Tribunal would have made. As I have already noted, the finding that the parents “never explored the possibility of relocating” is different from a finding that the mother did not give thought to relocating. Had the Tribunal assumed the mother did not think about relocation, the finding that the parents “never explored the possibility of relocating” would have had less potential to undermine the parents’ claims than a finding that was premised on the mother’s having thought about relocation. A finding that the mother “never explored the possibility of relocating” in circumstances where she had given thought to relocating would have provided to the Tribunal a more potent reason for not accepting the mother’s claims she feared harm to her daughters than a finding the mother “never explored the possibility of relocating” in circumstances where the Tribunal found or assumed the mother had not given thought to relocating.

6. For these reasons, ground 1 fails.

Ground 2

1. The second ground of review stated in the application is:

   The RRT did not explore if it was practical or realistic for the applicants to relocate. The applicant at 44:43 of CD as stated above and again at 53:43 of CD “…like I said before in Egypt you cant just be on your own.” The RRT did not at any time question or try and determine reasons or basis for this statement.

2. In her submissions to the Court, the mother submitted the Tribunal member “did not really consider why I can’t really live by myself”.[30] The mother drew my attention to that part of the delegate’s decision which dealt with relocation. In particular, the mother drew my attention to the following:

   The applicant’s fear must be well-founded in relation to the country as a whole. If there are parts of the country in which the applicant would be safe from persecution, and the applicant can reasonably be expected to relocate to those parts, then they will not have a well-founded fear of persecution in relation to the country as a whole.

   [30] T6.5

3. It will be seen that ground 2 claims the Tribunal failed to consider the reasonableness of relocation. In particular, the applicants claim the Tribunal did not explore with the mother her claim that it was not practical or realistic to relocate because in Egypt people could not be on their own.

4. The Minister submits ground 2 is misconceived because it assumes the relocation principle was an issue before the Tribunal. The Minister submits that relocation was relevant only to credibility. I agree. It was relevant because the Tribunal found the parents “never explored the possibility of relocating”. That, in turn, was relevant to the Tribunal’s assessment of the credibility of the applicants’ claims because, had the parents been genuinely fearful of the grandparents coercing them into subjecting their daughters to FGM, as they claimed, they would have explored the possibility of relocating.

5. Ground 2, therefore, is not made out.

Ground 3

1. The third ground of review stated in the application is:

   The RRT did not consider the likelyhood [sic] that the grandparents would travel to Port Said to take the children. The applicant stated “…when I move to Port Said …it only takes them 2 hrs by car to get to us because they think these two daughters are critical because they may bring shame to the family.” Previously at 41:35 of the CD the applicant had given example of sister in law twins and the fact that they had been taken without knowledge of family and had FGM conducted. The RRT did not consider that if the grandparents had taken and secretly had FGM done on twin relatives then there is a likely hood [sic] that they will travel 2 hrs away and do the same.

2. This ground is predicated on the Tribunal having accepted the mother’s evidence that her sister-in-law’s twins had been taken away and had FGM conducted on them without the knowledge of the family. The Tribunal, however, did not accept the mother’s evidence on that point.[31] Ground 3, therefore, fails.

   [31] CB146, [33]: “I do not accept that the third-named applicant’s niece(s) either had undergone FGM or been taken by grandparents for FGM to be performed on them.”

Ground 4

1. The fourth ground of review is:

   The RRT focused almost predominantly on FGM prevalence level of 17.9% in Port Said despite the fact that the DFAT report referred to at point 28 of the decision reports overall 91% prevalence in Egypt. The RRT did not apply refugee laws correctly given that the chance of harm may be small but real and wellfounded [sic]. Essentially it is not relevant that Port Said has a smaller incidence.

2. In substance, this ground claims that the Tribunal assessed whether the applicants had a well-founded fear of the daughters being compelled to undergo FGM predominantly by reference to the raw statistical figures of the incidence of FGM in Egypt. I do not accept that submission.

3. The Tribunal did not directly rely on the incidence of FGM in Egypt to determine whether the parents had a well-founded fear their daughters would be required to undergo FGM. The Tribunal relied on those matters to assess the credibility of the parents’ claims that they feared the grandparents and extended family would coerce the parents into subjecting the daughters to undergo FGM. The Tribunal reasoned that the existence of a low incidence of FGM in some parts of Egypt was a matter which ought to have indicated to the parents that there were areas in Egypt to which they could move to escape the pressure from the grandparents and extended family; and the fact the Tribunal found the parents did not explore the possibility of relocating to such areas indicated to the Tribunal that the parents did not hold the fear they claimed they held.

1. Ground 4, therefore, fails.

Ground 5

1. The fifth ground of review is as follows:

   At point 23 of decision record the RRT is “…not satisfied that the children could be taken from behind her back if she were to return.” The RRT had complete disregard for the applicants example of twins at 41:35 of CD nor did the RRT try and determine how the children can actually be taken.

2. This ground, in part, is premised on the truth of the mother’s evidence that the grandparents had taken the mother’s sister-in-law’s twin daughters. The Tribunal, however, did not accept the mother’s evidence on that matter.[32] Further, it was not for the Tribunal to determine how the daughters could be taken. It was for the applicants to put material before the Tribunal to explain how the daughters could have been taken, given that it was the mother who made that claim at the hearing.

   [32] CB146, [33]: “I do not accept that the third-named applicant’s niece(s) either had undergone FGM or been taken by grandparents for FGM to be performed on them.”

3. Ground 5, therefore, also does not succeed.

Ground 6

1. The sixth ground is as follows:

2. At 49:18 of CD the RRT referred to the fact that rates of FGM are less amongst the educated and pointed out that the applicant is educated. The RRT statement is irrelevant because the grandparents and community are seeking FGM not the educated applicant. I do not accept it was not reasonably open to the Tribunal to consider relevant the fact that the mother had a tertiary degree.[33] Given there was country information that indicated the rate of FGM in Egypt was lower among the educated, it was reasonably open to the Tribunal to have regard to that fact when assessing whether, as the parents claimed, they would be subjected to pressure from the grandparents and society as a whole to subject their daughters to FGM. That is, it was reasonably open to the Tribunal to assess the probability of the mother, an educated person, succumbing to family and societal pressure to subject her daughters of FGM, by reference, in part, to country information that indicated there was a lower incidence of FGM among educated persons in Egypt.

   [33] CB145, [29]

3. Ground 6, therefore, also fails.

Conclusion and disposition

1. The applicants have not succeeded on any of their grounds of review. I propose, therefore, to order that the application be dismissed. I will also order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  4 March 2016