SZAFY v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 80 (13 February 2004)

Last Updated: 13 February 2004

FEDERAL COURT OF AUSTRALIA

SZAFY v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 80

SZAFY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 1589 of 2003

MOORE J
13 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1589 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZAFY APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	13 FEBRUARY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.	The appeal be dismissed.
2.	The appellant pay the respondent’s costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1589 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZAFY APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MOORE J
DATE:	13 FEBRUARY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 On 4 July 2000 the appellant arrived in Australia with her son. They are both citizens of India. The appellant lodged an application for a protection visa on 25 October 2000. A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the delegate") refused to grant the protection visa on 9 May 2002. The appellant applied for that decision to be reviewed on 5 June 2002. The Refugee Review Tribunal ("the Tribunal") affirmed the decision refusing to grant the visas on 19 February 2003. The appellant sought judicial review of the decision by the Federal Magistrates Court. On 2 October 2003 Federal Magistrate Raphael dismissed the application. The appellant appeals against that decision to this Court.

Background Facts

2 Generally, the appellant’s account of her experiences was as follows. The appellant was born in Punjab, India in 1972. She is of the Sikh ethnicity and religion. She succeeded in passing year 10 but was then made to leave school because she was a lesbian and accused of having an affair with a female member of staff. In June 1989, her father sent her to Bag Snag Des Women’s college where she was admitted to the skill centre. There she met one of her old teachers called ‘Babita’ who asked her if she knew that there was ‘another social group’ at the centre. When asked by the delegate what she meant by ‘social group’ she explained that she meant ‘lesbian group’. Babita introduced her to a woman at the skill centre called Subraj Kaur. In February 1990 the appellant went to Nanital in Utter Paradish to work for her uncle who owned a clothing factory. She worked there for six months, and maintained contact with Subraj. She returned to Punjab in October where she again saw Subraj, who invited her to a gathering of women from Punjab University and Chandigarh women’s college. The appellant attended a number of these gatherings where she met lots of ‘those people’ [other lesbians or homosexual men] and it was at such a gathering that the appellant met a woman called Neto.

3 The appellant met and visited Neto regularly and their relationship was spiritual, emotional, physical and sexual. The relationship continued in this way until June 1994. In July 1995 Neto was married against her will and moved to Jabalpur. In mid November 1995 the appellant decided to leave home and to go to Gajiabad where she stayed with a distant relative of Neto’s. In April 1996, Neto’s relative found out about the relationship between Neto and the appellant, and asked the appellant to leave.

4 In July 1996 relatives of Neto and three unknown men came in a van and asked the appellant to go with them to the hospital where Neto was. After the van was stopped at an ‘unknown destination’, the appellant was raped. The following day the appellant was given medicine to prevent pregnancy, but it did not work. By the end of October her father had learned of the episode and told her that she must marry so that she could face society.

5 The appellant was married on 26 November 1996 in Amritsar after which she went to live with her husband and his family. Following the marriage her father contacted a friend of his in Jammu in order that the appellant’s husband might work there and be kept away from any rumours about the appellant’s son. They lived in Jammu until 2000.

6 On 7 May 1997 the appellant’s son was born. People talked and looked down on her husband saying he married a pregnant woman out of greed, as well as harassing and beating her. She felt that everyone was against both her and her husband, prompting her to suggest that they go to Australia or somewhere else, which her husband agreed to.

7 On 3 July 2000 the appellant, her husband and her child left India and arrived in Australia the next day. On 22 August the appellant’s husband left her a note in which he said that he had been informed by the Sikhs temple at Jalandhar that her son was illegitimate and that the appellant was a lesbian. Her husband said that if it were India she would have been treated in accordance with Sikh culture and that he ‘will never show up’. Following their separation, the appellant continued to live with her ‘sister-in-law’.

8 The substance of the appellant’s claims was that she is unable to return to India on the grounds that she will be persecuted on the basis of her sexuality and having had a baby conceived before marriage, which is not acceptable in the community.

The Tribunal’s Decision

9 The Tribunal set out the appellant’s claims in her initial statement, as recorded in her interviews with the delegate, her submissions to the Tribunal, and those made at the hearing. The Tribunal then set out its findings and reasons.

10 Before setting out any findings of fact the Tribunal said:

I accept that the applicant is an Indian national. However, in my view, significant aspects of the applicant’s evidence were vague, implausible, confused, internally inconsistent and inconsistent with evidence given by her husband and her witness. I did not form the impression the applicant was telling the truth and I do not consider the applicant’s evidence to be reliable.

11 The Tribunal went on to refer to matters supporting this conclusion. One matter concerned her account of when and whether she had lived in Jammu. Another matter concerned the completion of her written application and the Tribunal said that the applicant’s ‘confused evidence and implausible explanation for that confused evidence strongly indicates that her evidence generally lacks credibility’. Yet another matter concerned the apparent differences between the evidence of the appellant and of her husband in relation to when they met and how well their families knew each other. The Tribunal indicated it found the applicant’s reference to lesbians as her ‘social group’ artificial, and thought it ‘much more likely that someone has told the applicant that homosexuals may constitute a "particular social group"’. Ultimately the Tribunal found the appellant was not a lesbian and never had been.

12 The Tribunal found an ‘overall lack of credibility in the [appellant]’s evidence’, and considered it much more likely that the appellant had become pregnant through premarital sex with her husband than by being raped. Acknowledging this situation may have given rise to mistreatment of the applicant by her husband’s family, the Tribunal indicated it was not satisfied that this would amount to harm serious enough to be characterised as persecution for a Convention reason.

13 In concluding, the Tribunal said:

Overall, I’m of the view that the applicant fabricated her claim to be a lesbian in an attempt to enhance her claims to refugee status. I do not accept that the applicant considers herself to be a lesbian currently or that she was involved in a lesbian relationship or relationships in India. I do not accept that the applicant would seek to be involved in lesbian relationships if she returned to India. I am not satisfied that the applicant has a well founded fear of persecution for a Convention reason arising out of her claim to be a lesbian. I accept that the applicant was pregnant at the time she married. However, I do not accept that this pregnancy was the result of the applicant being raped because she was a lesbian, as she claimed. I am not satisfied that the applicant has a well founded fear of persecution for a Convention reason arising out of this aspect of her claims. The applicant does not claim to fear persecution for any other reason.

The Federal Magistrate’s Decision

14 The appellant was self-represented before the Federal Magistrates Court. Federal Magistrate Raphael delivered a brief judgment indicating that the Tribunal had demonstrated that there were inconsistencies in the appellant’s evidence which could justify the credibility finding it made. He indicated the application before him did not allege any jurisdictional error on the part of the Tribunal and nothing said at the hearing indicated, in his opinion, there was.

Issues in the Appeal and its Disposition

15 In her notice of appeal, the appellant listed a number of concerns about her hearing before the Federal Magistrate. They concerned the speed with which she felt her case was dealt with and the findings of the Tribunal that were affirmed and with which she disagreed.

16 The respondent submitted that the Federal Magistrate properly relied on Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407, and W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679 in relation to the findings of the Tribunal about the credibility of the appellant. The respondent also submitted that it was a factual matter for the Tribunal to decide whether the appellant’s treatment by her in-laws amounted to persecution citing Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260; Minister for Immigration and Multicultural and Indigenous Affairs v Kord [2002] FCA 334; (2002) 67 ALD 28 at [3] and [53-56]. The respondent submitted that once these findings of fact made by the Tribunal are accepted there is no basis for judicial review and no arguable jurisdictional error.

17 I have read the decision of the Tribunal and the reasons for judgment of the Federal Magistrate. It is not apparent to me that the Federal Magistrate erred in concluding that no jurisdictional error attended the decision of the Tribunal. Nothing was put by the appellant at the hearing (at which she represented herself) to suggest the Federal Magistrate had erred. The appeal should be dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated: 13 February 2004


Appellant appeared in person

Counsel for the Respondent:	P Braham
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	4 February 2004
Date of Judgment:	13 February 2004