SZOOY v Minister for Immigration and Citizenship [2011] FCA 138 (23 February 2011)

Last Updated: 25 February 2011

FEDERAL COURT OF AUSTRALIA

SZOOY v Minister for Immigration and Citizenship [2011] FCA 138

Citation:		SZOOY v Minister for Immigration and Citizenship [2011] FCA 138
Appeal from:		SZOOY v Minister for Immigration & Anor [2010] FMCA 934
Parties:		SZOOY v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 1829 of 2010
Judge:		LANDER J
Date of judgment:		23 February 2011
Catchwords:		MIGRATION – judicial review – appeal from Federal Magistrate – whether Refugee Review Tribunal committed jurisdictional error – whether failure to accept appellant’s evidence amounted to jurisdictional error – bias – procedural fairness – findings of fact – relevant considerations – irrelevant considerations. Held: Appeal dismissed.
Legislation:		Migration Act 1958 (Cth) ss 415, 416, 424A
Cases cited:		Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] cited Minister for Immigration & Citizenship v SZIAI (2009) 111 ALD 15 cited Minister for Immigration and Citizenship v SZNPG & Another [2010] FCAFC 51; (2010) 115 ALD 303 cited SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 cited
Date of hearing:	18 February 2011
Date of last submissions:	18 February 2011
Place:	Adelaide (heard in Sydney)
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	83
Counsel for the Appellant:	The Appellant did not appear
Counsel for the First Respondent:	Mr T Reilly
Solicitor for the First Respondent:	DLA Phillips Fox

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1829 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZOOY Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	LANDER J
DATE OF ORDER:	23 FEBRUARY 2011
WHERE MADE:	ADELAIDE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

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

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1829 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZOOY Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	LANDER J
DATE:	23 FEBRUARY 2011
PLACE:	ADELAIDE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

1. This is an appeal from an order of a Federal Magistrate made on 2 December 2010 dismissing the appellant’s application for judicial review and ordering the appellant to pay the respondents’ costs of the proceeding fixed in the amount of $5,865.
2. The appellant did not appear on the day and time appointed for the hearing of the appeal.
3. Order 52 rule 38A(1)(d) provides the Court with power to proceed with the hearing of the appeal in a party’s absence. The first respondent requested that the Court hear and decide the appeal. In my opinion, the request is reasonable and I will address the merits of the appeal.
4. The appellant is a Fijian citizen who arrived in Australia on 16 August 2009 under a TR-676 visitor visa issued on 29 June 2009. On 6 November 2009 the appellant applied to the Department of Immigration and Citizenship for a protection (Class XA) visa. On 8 January 2010 a delegate of the first respondent refused the appellant’s application for a protection visa. On 28 January 2010 the appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of the first respondent’s decision to refuse her application. On 26 July 2010 the Tribunal affirmed the decision under review.
5. On 23 August 2010 the appellant applied to the Federal Magistrates Court seeking judicial review of the Tribunal’s decision. The appellant sought orders for the issue of the constitutional writs to quash the Tribunal’s decision to require the Tribunal to review the delegate’s decision according to law.
6. The Federal Magistrate held that the Tribunal’s decision was not affected by jurisdictional error and consequently dismissed the appellant’s application for review.
7. On 23 December 2010 the appellant appealed to this Court seeking the same orders as were sought before the Federal Magistrates Court. The appellant also seeks an order that the costs of the proceeding be waived.
8. Whilst this is an appeal from a Federal Magistrate, the success or otherwise of the appeal will depend upon whether the appellant can show that the Tribunal fell into jurisdictional error so as to entitle him to the issue of the constitutional writs to require the Tribunal to reconsider the matter and decide his application according to law. There is a need therefore to first address the Tribunal’s decision.

Proceedings before the Refugee Review Tribunal

9. The appellant, a Hindu, was born in Lautoka and has lived all her life in Suva. She married her husband in 1999 and the couple had a daughter in 2004. In 2000 the appellant alleges her husband started hitting her and threatened to kill her. She alleges that her husband tried to drown her at a family picnic in 2006 but she was saved by her brother-in-law.
10. On 16 January 2008 the appellant separated from her husband because of the threat of ongoing domestic violence. She took her daughter to live with her parents. She alleged that her husband’s violence towards her continued even after their separation. She reported him to police but alleges no prosecution was forthcoming because her husband bribed the police. The appellant asserted that her husband was violent towards her family and on one occasion hit her father over the head with an iron bar.
11. In July 2008 the appellant claimed to have commenced a lesbian relationship with a close friend. The appellant alleged that this relationship infuriated her husband and as a result more physical violence ensued. The appellant claimed that her family did not accept her homosexuality and consequently cut off all relations with her. The appellant’s daughter remains living in Suva with the appellant’s parents.
12. On 16 August 2009 the appellant arrived in Australia under a three month visit visa to live with her aunt in Sydney. Prior to the expiration of her visit visa, she applied for the protection visa.
13. On 28 May 2010 the appellant appeared before the Tribunal to give evidence and present arguments in support of her case. The appellant also filed various documents. She filed a written statement in which she attested to her lesbian relationship and her husband’s behaviour towards her partner. She also filed a letter from a Sergeant of the Fiji Police Force which detailed a domestic dispute between the appellant and her husband in 2007 as a result of which her husband had been charged with assault occasioning actual bodily harm. She submitted copies of letters from a general practitioner and a consultant psychologist relating to the appellant’s state of depression and anxiety. On 26 May 2010 the appellant submitted a statutory declaration stating that she had made “protracted” attempts to contact her partner without success.
14. The appellant was invited to provide further evidence to the Tribunal within 7 days of the hearing to support her claim that she was in a lesbian relationship. No further evidence was received by the Tribunal.
15. The appellant submitted that she feared physical harm from her husband if she returned to Fiji. She claimed that she feared persecution in Fiji by reason of her membership of a particular social group of “women suffering domestic violence in Fiji”. Her fear arose from her husband’s history of domestic violence and in particular his perception of, and reaction to, her ongoing lesbian relationship.
16. The Tribunal was required to determine whether the appellant’s grounds for her fear of persecution if she returned to Fiji were well-founded Convention reasons. It concluded on the evidence that the appellant’s fear of persecution was not for well-founded Convention reasons.
17. The Tribunal did not accept that the appellant was in a lesbian relationship. The appellant did not put forward evidence to corroborate her assertion that the relationship existed. The appellant claimed to have recently lost contact with her lesbian partner, asserting that she could no longer reach her by telephone and that she had moved to an unknown address. The Tribunal considered the sudden and inexplicable unavailability of the partner to be attributable to the appellant’s reluctance to allow her partner to give evidence, which cast doubts on the appellant’s credibility.
18. The Tribunal received evidence that the appellant was in a relationship with a man at the time of the proceeding and had fallen pregnant. The appellant denied that she was in a relationship in Australia and asserted the pregnancy was the result of a sexual assault. She had not reported that sexual assault to the authorities. The Tribunal regarded the appellant’s failure to report the alleged sexual assault as indicating that the pregnancy was likely to have been the result of an ongoing relationship with a man.
19. For those reasons the Tribunal did not accept that if the appellant returned to Fiji she would wish to have a female partner; be perceived to be a lesbian; and therefore likely to be harmed because of such a perception.
20. The Tribunal did not accept the appellant’s claim that her husband intended to seriously harm her if she were to return to Fiji. The Tribunal expressed doubts as to the appellant’s credibility, including her allegations of impending serious harm to her if she returned to Fiji. The Tribunal rejected the appellant’s assertion that she was the subject of ongoing threats from her husband because of her homosexuality. The Tribunal noted that the appellant had not provided any reliable documentary evidence of her husband’s violence towards her or anyone in her family. The Tribunal rejected the police report submitted by the appellant as an unreliable source of evidence given its inconsistencies with the appellant’s own oral evidence. The Tribunal noted that the appellant had not sought a divorce from her husband and that there was a lack of corroborating evidence attesting to her husband’s violent behaviour.
21. There was no evidence that her husband perceived the appellant as a lesbian and would therefore be likely to become violent towards her based on that perception. The Tribunal considered evidence that the appellant had consulted a general practitioner and shown symptoms consistent with post traumatic stress disorder such as anxiety, stress and depression, which she claimed was a result of domestic violence. The Tribunal accepted that the appellant may have been a victim of domestic violence at some point during her marriage. However, it did not consider this evidence as helping in ascertaining her husband’s intentions towards her if she returned to Fiji.
22. The Tribunal dismissed the application and affirmed the decision of the delegate of the first respondent.

Proceedings before the Federal Magistrate

23. The appellant’s amended application put forward eight grounds of review to the Federal Magistrate.
24. The first, fifth and seventh grounds allege the Tribunal acted with actual or apprehended bias.
25. The second ground asserted that the Tribunal erred in finding that the appellant had not become pregnant as a result of an assault.
26. The third ground of review was that the Tribunal had failed to investigate the appellant’s allegations of sexual assault.
27. The eighth ground the appellant alleged that the Tribunal failed to have regard to her supporting material, namely the police report and her psychological report.
28. The Federal Magistrate considered, and the appellant agreed, that the fourth and sixth grounds contained in the amended application did not assert any error. On this basis, these grounds were not pressed.
29. The Federal Magistrate considered each of the grounds of review raised by the appellant in the context of considering whether the Tribunal’s decision was affected by jurisdictional error.

Grounds 1, 5 and 7

30. The Federal Magistrate rejected the appellant’s allegations of bias or apprehended bias on the part of the Tribunal. His Honour found there was no evidence of bias or apprehended bias. There was no evidence on the record to support such a claim and the appellant had not led additional evidence to suggest that the Tribunal may not have been impartial in determining the application for review. On 7 October 2010 the appellant was directed by the Federal Magistrate to serve an affidavit containing any additional evidence in support of this ground. No such affidavit was filed as directed.
31. The Federal Magistrate accepted the Tribunal’s published reasons as an accurate account of the Tribunal’s exchanges with the appellant at the hearing. The Federal Magistrate considered that a “fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was ‘so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented’ (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127])”.
32. The Federal Magistrate noted that the fact the Tribunal had made adverse findings against the appellant did not give rise to an inference of bias: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].
33. The Federal Magistrate found that the Tribunal’s findings in relation to the appellant’s credibility and the veracity of her claims were open to it on the evidence before it.

Ground 2

34. The appellant alleged the Tribunal erred by rejecting her claim that she had become pregnant as a result of an assault and finding that the pregnancy was the result of a relationship with a man. The appellant claimed she was not given an opportunity to explain what had happened in relation to the assault. The Federal Magistrate took the appellant to the letter provided to her pursuant to s 424A of the Migration Act 1958 (Cth) (the Act) and noted that she had provided a response to the letter.
35. The appellant then claimed that the Tribunal should have then invited her to another hearing to further discuss the Tribunal’s concerns. The Federal Magistrate noted that the appellant had not requested an additional hearing in her response to the s424A letter and that there is no obligation on the Tribunal to invite an applicant to another hearing where the Tribunal has given the applicant information that may be the reason or part of the reason for affirming the decision under review.
36. The Federal Magistrate rejected the appellant’s argument on this ground. His Honour considered that the findings made by the Tribunal were open to it on the evidence.
37. The Tribunal put to the appellant its doubts as to whether she was in a lesbian relationship because of the letter asserting she was pregnant at the time of the proceeding. The Tribunal found that despite alleging she fell pregnant as a result of a sexual assault, the appellant had not reported her allegations to police three months after expressing an intention to do so. On this basis, the Tribunal concluded that “the more likely scenario” was that the appellant became pregnant in the course of an ongoing relationship with a man.

Ground 3

38. The Federal Magistrate rejected this ground for the reason that there is no general duty on the Tribunal to investigate claims made by an applicant: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing). The Federal Magistrate noted that the duty on the Tribunal is a duty to review and not a duty to enquire: Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 111 ALD 15 at 21 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
39. The Federal Magistrate concluded that because the Tribunal is not under a duty to investigate, its alleged failure to do so did not mean that it had fallen into jurisdictional error.

Ground 8

40. The Federal Magistrate rejected the appellant’s argument that the Tribunal did not have regard to the police report and the psychological report she had submitted.
41. The Federal Magistrate noted that the Tribunal had regard to the police report in some detail but did not find it reliable evidence because it was inconsistent with the appellant’s oral evidence.
42. The Federal Magistrate did not accept the appellant’s assertion that the Tribunal did not have regard to the psychological report. The Tribunal considered the report but was not satisfied that the symptoms from which the appellant was said to suffer were due to her husband’s domestic violence.

Appeal to this Court

43. The appellant’s notice of appeal contains 19 grounds of appeal, some of which were not advanced before the Federal Magistrate and some of which are not in fact grounds of appeal at all.
44. Ground 1 is not a ground of appeal.
45. Grounds 2, 9 and 19 alleged the Tribunal acted with bias or apprehended bias.
46. Grounds 3 and 8 asserted that the Tribunal erred in making findings which were not open to it on the evidence, namely that the appellant was not in a lesbian relationship and that she had become pregnant as a result of a relationship with a male.
47. Grounds 6 and 10 alleged that the appellant was denied procedural fairness by the Tribunal because it did not afford her an opportunity to give evidence and present arguments in relation to the issues.
48. Grounds 13 and 17 asserted that the Tribunal erred by failing to take in account relevant considerations, namely evidence from the Narare Police Station and whether effective State protection was available to the appellant.
49. Ground 14 alleged the Tribunal erred by taking into account an irrelevant consideration, being the wife’s failure to seek a divorce from her husband.
50. Ground 15 claimed the Tribunal did not carry out its statutory function to determine specific facts. No particulars are given.
51. Ground 16 alleges a breach of ss 415, 416 and 425 of the Act. No particulars are given.
52. Grounds 4, 5, 7, 11, 12 and 18 asserted no error but were framed as submissions.

Grounds 2, 9 and 19

53. Again the appellant has repeated her serious complaint that the Tribunal was either biased or might be apprehended to be biased. Again no particulars or any evidence are given in support of those grounds.
54. There is nothing in the Tribunal’s reasons which would allow it to be said that the Tribunal was biased or might lead an impartial observer to think that the Tribunal might not have brought an impartial mind to the task for which it was responsible. Indeed it will be rarely that a decision maker’s reasons will by themselves disclose bias or give rise to an apprehension of bias: Minister for Immigration and Citizenship v SZNPG & Another [2010] FCAFC 51; (2010) 115 ALD 303 at [18].
55. The Tribunal has made a number of findings adverse to the appellant and it is clear from the Tribunal’s own reasons that in many respects the Tribunal did not accept her evidence.
56. However, the failure by a finder of fact to accept evidence of a party cannot mean that the finder of fact is necessarily thereby biased or might be apprehended to be biased. If the finder of fact gives rational explanations for its conclusions that it cannot accept a party’s evidence, then that party cannot rely upon those findings as evidence of bias or apprehended bias.
57. In my opinion, grounds 2, 9 and 19 have not been made out.

Grounds 3 and 8

58. The gravamen of grounds 3 and 8 is that the Tribunal should have accepted the appellant’s evidence that she was in a lesbian relationship with her partner and that her subsequent pregnancy was as a result of her being raped and/or forced by a man.
59. The Tribunal became aware during the course of its deliberations that the appellant had during her time in Australia become pregnant and had terminated that pregnancy. The appellant had not brought that information to the attention of the Tribunal.
60. The Tribunal reasoned not irrationally that if the appellant had become pregnant she must have been in some sort of relationship with a man which would be inconsistent with her claimed lesbian relationship with her partner in Fiji.
61. The Tribunal called upon the appellant to explain and stated in its s 424A letter:

This information is relevant to the review because the Tribunal could infer from this that you have not been truthful when you claim that you are a lesbian and that, if you return to Fiji, you would wish to resume a previous relationship with a woman. The Tribunal could also infer that you have not been truthful when you claim that you fear being harmed by your husband in Fiji.

62. The appellant responded to that notice claiming that she was unaware that subsequent issues such as the one identified were to be addressed by the Tribunal.
63. In any event, she said that she had become pregnant by a person not her partner but a social worker who had sexually assaulted her and coerced her into having sex with him so that she could become a “normal human being”. She claimed that he assaulted her and threatened her if she reported the matter to the police.
64. The Tribunal did not believe the appellant’s explanation that she was raped in circumstances where the appellant had failed to make any complaint of rape.
65. The Tribunal’s reasons for rejecting the appellant’s explanation are rational and were open on the evidence.
66. Grounds 3 and 8 have not been made out.

Grounds 6 and 10

67. The effect of the complaints in grounds 6 and 10 is that the Tribunal failed to give the appellant a hearing as required by the Act and it simply went through a form of hearing.
68. There is nothing to support this complaint. The Tribunal gave the appellant notice under s 425 as it was obliged and heard the appellant’s evidence. It then gave notice under s 424A, as again it was obliged, in relation to the matters to which I have referred and took into account in its reasons the appellant’s response. Simply because the Tribunal did not accept the appellant’s evidence is itself no evidence of it failing to give the appellant a real hearing.
69. There is nothing in the procedures or in the Tribunal’s reasons which would support the appellant’s claims in these grounds of appeal.
70. Grounds 6 and 10 have not been made out.

Grounds 13 and 17

71. The appellant provided to the Tribunal a letter written apparently by Sergeant Naivasi Talemaigtoga of the Fijian Police Force who described himself as “Post Officer/Narere Police Post”. He said in his letter that the appellant had been assaulted by her husband who was charged with assault occasioning actual bodily harm some time before 2007. The appellant’s complaint is that the Tribunal failed to follow up with the Narere Police Station the information contained in the letter. There was no obligation upon the Tribunal to conduct inquiries in order to gather information to support the appellant’s claim: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [25]. But, in any event, there were no obvious enquiries that should have been made. It was for the appellant to put before the Tribunal the facts and circumstances which the appellant relied upon for the purpose of the application for review.
72. Ground 13 is not made out.
73. Ground 17 relates to the Tribunal failing to address the question of State protection. The Tribunal did not accept the appellant’s evidence and for that reason did not accept her claim that she feared persecution for a Convention reason. In those circumstances there was no reason for the Tribunal to consider the question of State protection. That issue would have only arisen for consideration if the Tribunal had first been satisfied that the appellant had a well-founded fear of persecution. Those two grounds must be dismissed.

Ground 14

74. In this ground the appellant claims that the Tribunal should not have taken into account her failure to seek a divorce from her husband. Divorce is not easily procurable in Fiji.
75. The appellant’s case was that she and her husband had separated on 16 January 2008 and have remained separate and apart since that time. In the meantime she had formed a relationship with her lesbian friend. The Tribunal was of the opinion that the appellant’s failure to take any steps towards obtaining a divorce was inconsistent with her claim that she genuinely feared that he intended to seriously harm her. That was a matter for the Tribunal. It was a matter to which the Tribunal could have regard for the purpose of determining whether it accepted the appellant’s account of her fear of her husband’s behaviour.
76. Ground 14 must be dismissed.

Ground 15

77. In this ground the appellant claims that the Tribunal did not carry out its statutory function to determine specific facts. No particulars are given of the facts which should have been determined, nor any particulars given of the breach of statutory duty.
78. Ground 15 must be dismissed.

Ground 16

79. This ground is not maintainable. Section 415 empowers the Tribunal to conduct a review and provides the Tribunal with decisions which can be made on that review. There are no statutory injunctions in s 415.
80. Section 416 only applies where an application is made in circumstances where a previous application for review has been made and determined by the Tribunal or the Administrative Appeals Tribunal and relieves the Tribunal from considering previous information. It has no application to this case.
81. Section 425 requires the Tribunal to invite an applicant to appear before the Tribunal if it is of the opinion that it cannot make a decision in favour of the applicant on the material before it. The Tribunal complied with s 425.
82. These grounds of appeal must be dismissed.
83. For all of those reasons, the appeal must be dismissed and the appellant must pay the first respondent’s costs.
    

I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated: 23 February 2011