SZVWQ v Minister for Immigration

[2016] FCCA 1838

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVWQ v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1838

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal (Tribunal) – whether Tribunal misunderstood applicant’s case – whether Tribunal was correct in considering as relevant to the claim based on complementary protection that the risk of harm applied to the population as a whole rather than to the applicant personally – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 36(2A), 36(2B)(c)

Cases cited:
BBK15 v Minister for Immigration and Border Protection [2016] FCA 680
SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245

Applicant: SZVWQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3562 of 2014

Judgment of: Judge Manousaridis

Hearing date: 6 May 2016; 28 June 2016

Delivered at: Sydney

Delivered on: 29 July 2016

REPRESENTATION

The applicant appeared in person assisted by an interpreter

Counsel for the Respondents: Mr M J Smith

Solicitors for the Respondents: 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 3562 of 2014

SZVWQ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a citizen of Iraq, seeks judicial review of the decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister), not to grant the applicant a Protection (Class XA) visa (Protection visa). 

Claims for protection

1. In a statement that formed part of the applicant’s application for a Protection visa,[1] the applicant claimed to fear harm from her husband because the applicant wanted to divorce her husband because, without the applicant’s knowledge, he had taken a second wife.

   [1] CB130-133

2. According to that statement, the applicant and her husband married in 1989. At the beginning of 2010 the applicant’s husband proposed purchasing a farm in the south of Baghdad. Convinced that the venture would be a success, the applicant agreed and sold her jewellery and contributed all her savings to fund the purchase. The applicant’s husband went about setting up the farm, building the necessary facilities which required him to stay there “for days”. Once up and running however, the income generated from the farm was disappointing, and the applicant needed to borrow more money to keep it running.

3. At the beginning of March 2013, an acquaintance of the applicant came to her home asking of the applicant’s husband. After telling him that her husband was still working at the farm, the friend replied with a strange look, “at [the] farm or at his other wife’s!”. The applicant was shocked, thinking that such a comment must be a joke or that the acquaintance was out to cause trouble. On 2 April 2013 the applicant hired a car and went to see her husband at the farm. When she arrived the applicant learned from “people in the area” that her husband had married a second wife in 2010, and together they had had a child. Shocked, the applicant went to her husband and new wife’s home and demanded a divorce. The applicant’s husband refused, arguing that the applicant should accept his decision and “carry on…life with him”.

4. The applicant felt humiliated by her husband’s refusal. Her family, however, began to pressure the applicant to reconcile with her husband after he promised to spend fair and equal amounts of time between the applicant and his second wife. In particular, the applicant’s brothers viewed the applicant’s desire for a divorce as bringing shame upon the family and threatened that if she continued to seek a divorce, they would force her to “accept an agreement with him”.

5. The applicant’s husband began calling the applicant, threatening that he will seek an order to arrest the applicant and put her in a “House of Obedience”, where she would be kept until she subdued to her husband’s wishes and decide to resume living with him. The applicant decided to buy some time by asking her husband for a break of a few months to get over the shock of his second marriage with the promise that they would “sort it out” at the end of that time. The applicant told her brothers the same.

6. Meanwhile the applicant applied for a visa to visit her sister in Australia, with only her sons knowing of her application. The applicant then began arranging her travel in secret as she believed her husband would prevent her from leaving the country.

7. After she arrived in Australia, the applicant’s sons told the applicant her brothers are angry at her travelling without consent, and they have threatened they would teach the applicant a lesson on her return to Iraq. The applicant’s sons also told the applicant that her husband is mad and has threatened to have the applicant arrested on her return to Iraq, and detained in the “House of Obedience”.

Tribunal’s decision

1. The Tribunal found the applicant was not a witness of truth, and that she had not presented a credible account of the circumstances which led her to leave Iraq.[2] The Tribunal relied on a number of matters. First, the applicant claimed her husband had married in 2010, yet the applicant said she was unaware until late March 2013.[3] The Tribunal found it implausible that despite people being aware of the marriage, such as the applicant’s acquaintance and people who lived near the farm, nobody had told the applicant before March 2013. The Tribunal therefore did not accept the applicant remained unaware of her husband’s second marriage until weeks before leaving for Australia, finding that the claimed timing of these events indicates the applicant’s story was contrived to establish claims of protection.

   [2] CB139, [8]

   [3] CB139, [10]

2. Second, the Tribunal found implausible the applicant’s evidence of what occurred between the four week period between the time she discovered her husband had married a second wife, and the applicant’s leaving Iraq. [4] According to the applicant, in this four week period she had demanded a divorce from her husband who initially refused; that he was then apologetic and offered to make good the situation; that he told the applicant’s brothers that it was his fault and he would pay her compensation; that he then changed his mind and became verbally abusive, refusing the request for a divorce and threatening her with the House of Obedience; that the applicant’s brothers demanded that she not seek a divorce; that the applicant sought legal advice about obtaining a divorce; and that this occurred while secretly planning her departure from Iraq, including raising the sum of AUD20,000 as a security bond for the grant of the visa.

   [4] CB139, [11]

3. Third, the Tribunal did not accept the applicant did not tell her husband or brothers of her travel arrangements, and that she made the trip without their knowledge or approval. [5] The Tribunal did not accept the applicant’s evidence because the applicant said her husband and her brothers were aware of the applicant’s initial application for a visa in 2012, and had agreed to her travel plans. The Tribunal did not accept the applicant’s answer to the Tribunal’s asking why her husband and brothers would not agree to her travelling in 2013 when they had agreed in 2012. The applicant said that by 2013 the applicant’s husband and brothers were angry with her because of the marital situation. The Tribunal found that, assuming the applicant’s claims were true, the applicant’s husband and her brothers would not have objected to her coming to Australia because this would have removed the source of conflict and dishonour.[6]

   [5] CB140, [12]

   [6] CB140, [12]

4. Fourth, the applicant gave inconsistent evidence about the matters relating to her divorcing her husband. The applicant claimed both before the delegate and the Tribunal that she sought advice from a lawyer who told her she could not obtain a divorce quickly without the consent of her husband and family, and that a court told her that she could not get a divorce unless her husband agreed. At the interview before the delegate however, the applicant claimed it was her right to ask for a divorce but her husband was not understanding, and when asked why she did not seek a divorce from a court, stated that she though it would take a long time and her husband would not cooperate. While the Tribunal accepted country information indicated divorce procedures favour husbands and that, while women can file for divorce in certain circumstances, they are often unaware of their options, it did not consider the applicant’s account of the discussions to be credible. In particular the Tribunal did not accept that over a period of four weeks discussions reached a point of finality with no prospects of resolution, such that the applicant was forced to leave Iraq permanently, nor did the Tribunal accept that it would not be possible for the applicant to divorce her husband if she returned to Iraq or that another satisfactory arrangement could not be reached. [7]

   [7] CB140, [13]

5. Fifth, the Tribunal found the applicant gave inconsistent and untruthful evidence about her financial position.[8] In her application for a Protection visa the applicant claimed to have sold her jewellery and used all of her savings for the purchase of the farm with her husband in 2010, and later had to borrow further funds to keep the farm running. At the interview before the delegate the applicant claimed to have used her savings to pay the AUD20,000 visa bond.  The Tribunal put to the applicant that it did not appear that she had used all her savings and the proceeds from the sale of jewellery to fund the purchase of the farm with her husband in 2010, when three years later she had at her disposal AUD20,000. The applicant claimed in response that when her husband had asked for money, she had only given him “some” and that she had “sold two cars and borrowed money to pay for the bond for the visa”.[9]

   [8] CB141, [14]

   [9] CB141, [14]

6. The Tribunal considered the harm the applicant claimed she feared. The Tribunal noted the applicant claimed she feared punishment from her husband and brothers, and that they may kill her. The Tribunal noted, however, the applicant said her husband has never been physically violent towards her. While the Tribunal accepted that “so-called honour killings” occurred in Iraq when a woman is considered to have acted improperly and dishonoured her family, the Tribunal was not satisfied there is a real chance the applicant will be subjected to serious harm of any kind amounting to persecution, or to any form of significant harm, as defined in s.36(2A) of the Migration Act 1958 (Cth) (Act), on her return to Iraq, either by her husband, or her brothers, or because the applicant wants a divorce.

7. The Tribunal also considered the additional claim made by the applicant that she fears harm in relation to the deteriorating security situation in Iraq. While the Tribunal accepted that there has been a deterioration in the security situation in Baghdad since the applicant’s arrival in Australia, it relied on the applicant’s evidence that there is no reason for which she would be “targeted for any form of harm”.[10] In the absence of any contradictory evidence or material, the Tribunal applied s.36(2B)(c) of the Act to conclude that any risk to the applicant arising from this situation of generalised violence in Iraq was one that was faced by the population generally.[11]

   [10] CB142, [17]

   [11] CB142, [17]

Course of hearing

1. The matter came on for hearing before me on 6 May 2016. The applicant was not legally represented. On that day I raised with the Minister’s solicitor questions about the Tribunal’s assessment of the applicant’s claims under s.36(2)(aa) of the Act. Given the issues I raised were not included in the application, I adjourned the hearing to give the Minister an opportunity to consider the matters I had raised, and I directed the Minister to file and serve further written submissions. I also directed that the applicant file submissions, if she was so minded. Pursuant to those directions, the Minister filed submissions on the issues I raised. The applicant also filed submissions, although these did not address the matters raised by the Minister’s submissions

2. The matter came back before me for hearing on 28 June 2016. The applicant was not legally represented. The applicant relied on the written submissions she had filed, and made oral submissions. The applicant did not address the Minister’s written submissions. In these reasons for judgment, therefore, I will first consider the ground stated in the application, next, the Minister’s submissions in relation to the Tribunal’s assessment of the applicant’s claims based on s.36(2)(aa) of the Act, and, finally, the written and oral submissions the applicant made at the hearing.

Ground of application

1. The applicant’s application for review contains one ground of review:

   The Refugee Review Tribunal did not understand my fear. I am a refugee and my claim is genuine.

2. That ground cannot be made out. It is apparent from what I have already set out that the Tribunal understood the applicant’s claims. The Tribunal did not accept the applicant was a witness of credit, and, therefore, did not accept that her claims were true. The ground otherwise invited the Court to engage in impermissible merits review of the applicant’s claims for protection.

Complementary protection

1. The particular aspect of the Tribunal’s decision which initially caused me some concern related to the Tribunal’s finding that, although the security situation in Iraq and Baghdad had worsened since the applicant arrived in Australia:[12]

   [A]ny risk to the applicant arising from this situation of general insecurity and political and sectarian violence is one faced by the population generally, and not by the applicant personally.

   [12] CB142, [17]

2. In a footnote to that passage, the Tribunal referred to s.36(2B) of the Act. That provision must be read with s.36(2)(aa) and s.36(2A) of the Act. Subsection 36(2)(aa) provides:

   A criterion for a protection visa is that the applicant for the visa is:

   .    .    .   

   (aa)   a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm…

3. The expression “significant harm” in s.36(2)(aa) is given meaning in s.36(2A) of the Act, which provides:

   A non-citizen will suffer significant harm if:

   the non-citizen will be arbitrarily deprived of his or her life; or

   (a)the death penalty will be carried out on the non-citizen; or

   (b)the non-citizen will be subjected to torture; or

   (c)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

   (d)the non-citizen will be subjected to degrading treatment or punishment.

4. Subsection 36(2B) of the Act, however, limited the generality of s.36(2A) as follows:

   However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

   (b)the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

   (c)the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

5. It is clear the Tribunal had in mind paragraph (c) of s.36(2B) of the Act when concluding that any risk the applicant faced from the situation in Iraq of general insecurity and political and sectarian violence is one faced by the population generally.

6. The meaning of s.36(2B) of the Act was considered by Rares J in SZSPT v Minister for Immigration and Border Protection.[13] His Honour said:[14]

   In my opinion, the natural and ordinary meaning of the exception in s 36(2B)(c) is that, if the Minister, or decision-maker, was satisfied that the risk was faced by the population of the country generally, as opposed to the individual claiming complementary protection based on his or her individual exposure to that risk, the provisions of s 36(2)(aa) were deemed not to be engaged.

   [13] [2014] FCA 1245

   [14] [2014] FCA 1245 at [11]

7. His Honour also said:[15]

   In particular, the exception provided by s 36(2B)(c) was directed to a real risk, for example, that a person would be subjected to torture were he or she returned to a country, to which not everyone in the population was exposed. However, if the population were generally exposed to the risk of torture, as opposed to the person as an individual or by reason of some characteristic that distinguished him or her from the characteristics of the general populace, then the exception was intended to operate, odd as that may seem. The exception deemed what would otherwise be within the meaning of the definition of significant harm in s 36(2A) not to be so where the law, for example, was one of general application to the population and was not applied in a discriminatory manner to particular persons by reason of some criterion that took them outside the ordinary course of the application of the law.

   [15] [2014] FCA 1245 at [13]

8. In BBK15 v Minister for Immigration and Border Protection Buchanan J adopted a similar approach to Rares J.[16] Buchanan J said:[17]

   It is evident that, by contrast with s 36(2B)(a) and (b) (where it is deemed that a “real risk” will not exist in particular circumstances), s 36(2B)(c) accepts that a “real risk” may be faced by the population of a country generally but directs attention to the particular question of whether it is a “real risk” faced by the applicant personally.

   [16] [2016] FCA 680

   [17] [2016] FCA 680 at [10]

9. Buchanan J also said:[18]

   In my view, s 36(2B)(c) draws attention to a circumstance where a real risk of harm faced by a visa applicant is a risk shared with the general population, rather than one to which the visa applicant particularly is exposed in some individual or personal sense (see also SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 at [11]). A risk shared with the general population is taken not to be a “real risk of harm” for the purpose of s 36(2)(aa).

   [18] [2016] FCA 680 at [30]

10. On the basis of these authorities, I am satisfied the Tribunal applied a correct interpretation of s.36(2)(B) of the Act to the circumstances of the applicant’s claims. That is, the Tribunal was correct to consider as relevant to whether the applicant satisfied s.36(2)(aa) of the Act, because of general insecurity and political and sectarian violence in Iraq. that the risk of harm that such insecurity and political violence posed was one faced by the population generally, not by the applicant personally. In my opinion, it was reasonably open to the Tribunal to be satisfied that such risk was faced by the population generally and, for that reason, the general insecurity and political and sectarian violence in Iraq was to be taken not to be a real risk the applicant will suffer significant harm in Iraq.

Applicant’s submissions

1. The applicant’s written submissions repeat the case she presented to the Tribunal. The applicant submits that “my situation is humanity, rather than security, and nothing got to do with general insecurity and political and sectarian violence in Iraq”.[19] The applicant’s submissions urge the Court to conclude that there is a substantial risk she will be killed or significantly harmed by her husband and brothers if she were to return to Iraq.

   [19] Applicant’s further written submissions, 10.06.2016, page 1

1. The written submissions do not disclose any jurisdictional error. As I informed the applicant, this Court does not have jurisdiction to determine whether the applicant has a case for being granted protection by Australia; that was a matter for the Tribunal to consider and determine. As I also informed the applicant, the jurisdiction of this Court is limited to determining whether the Tribunal considered the applicant’s case according to law.

2. The applicant’s oral submissions were also directed to matters that were relevant to whether the applicant was entitled to protection. The applicant claimed she would not have left her country, her children, and her employment if she did not have a fear of being harmed in Iraq. She claimed she would be killed if she returned to Iraq. She pleaded that she be permitted to remain in Australia until her two sons are granted asylum in Germany. Although the applicant’s submissions inspire sympathy, they do not disclose any grounds on which this Court can set aside the Tribunal’s decision.

3. I put to the applicant that the Tribunal had not accepted her evidence, and asked her whether she claimed the Tribunal made any error in not accepting her evidence. The applicant only submitted the Tribunal might have misunderstood her case. As I have already found, the Tribunal did not misunderstand the applicant’s case.

Conclusion and disposition

1. The applicant has not established the Tribunal made any jurisdictional error in affirming the delegate’s decision not to grant the applicant a Protection visa. I will therefore order that the application be dismissed. I will also order that the Administrative Appeals Tribunal be substituted for the Tribunal as second respondent.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 29 July 2016