SZNZM v Minister for Immigration & Anor [2010] FMCA 71 (10 March 2010)

Federal Magistrates Court of Australia

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SZNZM v Minister for Immigration & Anor [2010] FMCA 71 (10 March 2010)

Last Updated: 10 March 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNZM v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 71

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming ethnic, political and particular social group persecution in Kenya – Tribunal not satisfied that applicant was harassed because of an inter-racial marriage – whether Tribunal finding of inconsistency in the applicant’s evidence concerning knowledge of her tribal connection was irrational and not based on evidence considered.

Federal Magistrates Court Rules 2001 (Cth)

Minister for Immigration v VOAO & VOAP [2005] FCAFC 50 SFGB v Minister for Immigration [2003] FCAFCA 231 SZDFZ v Minister for Immigration [2008] FCA 390 SZDTZ v Minister for Immigration [2007] FCA 1824

Applicant:

SZNZM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2572 of 2009

Judgment of:

Driver FM

Hearing date:

5 February 2010

Delivered at:

Sydney

Delivered on:

10 March 2010

REPRESENTATION

Counsel for the Applicant:

Ms B Tronson

Counsel for the Respondents:

Mr J D Smith

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

(1) The application is dismissed.
(2) The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,865 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2572 of 2009

SZNZM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 30 September 2009. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
2. The following statement of background facts is derived from the parties’ written submissions.
3. The applicant is a citizen of Kenya (court book (CB) 45) and a Kikuyu woman. She entered Australia on 8 July 2008 (CB 49) on a tourist visa. Her stated purpose for visiting Australia was the World Youth Day gathering which took place in Sydney in July 2008 (CB 29).
4. On 8 August 2008, the applicant filed an application for a protection visa (CB 1). Her application was based on a number of claims of persecution (CB 27-30).[1]
5. The application was based on the claims that she would be harmed:
   1. by non-Kikuyu because she was a Kikuyu;
   2. because she had married a non-Kikuyu;
   100. by the Mungiki because she was a Catholic, was a woman who wore trousers, was a sister of a Mungiki and because she refused to join the Mungiki; and,
   4. by the authorities for having sought asylum in Australia.
6. The applicant entered into a relationship in 2002 or 2003 with a man from the Kisii tribe. Because this was an inter-tribal relationship, it could not be legally recognised, but the applicant considers this man to be her husband.
7. The applicant claims that her brother is a member of the Mungiki, a politico-tribal group which is currently banned in Kenya. She claims that her brother and other members of the Mungiki harassed her in a number of ways: they raped her in 2001, and since then, their harassment has included attempts to recruit her (in relation to which, she fears being forced to undergo female genital mutilation); persecution in relation to her relationship; and feared persecution in relation to her clothing.
8. The applicant also claims that she and her family were persecuted by the authorities because the authorities believed they might be harbouring her brother.
9. The applicant claims that the Mungiki had driven her father out of business and that her brother had joined them. She claims that, out of fear in relation to the persecution by the Mungiki, in 2007, she and her husband moved from Nairobi (a Kikuyu area) to his tribal homelands. In late 2007, the election violence in Kenya forced them to flee. She said that she was assaulted at the time of the elections in 2007 and she and her husband left the Kisii area for Nairobi. She was several months pregnant at the time. One of her husband’s relations kicked her in the belly.
10. On the way to Nairobi, they stayed in a camp which was attacked by Kikuyus but the applicant’s ethnicity was not known and she was not harmed. They then went to another camp where her water broke and she went to hospital, ultimately losing her unborn baby. After this, the applicant and her husband moved to a Red Cross camp which was gender-segregated. There, she met a priest through whom she joined a youth group and ultimately was able to attend World Youth Day.

Decision of the Minister’s delegate

11. A delegate of the Minister refused the applicant’s application for a protection visa on 9 October 2008 (CB 53-65). Essentially, the delegate did not accept that the applicant faced any harm from her brother and that, insofar as there was risk of harm from other sources, the government had, and would continue to offer her protection. She did not accept that the application for asylum gave rise to a well-founded fear of persecution.

Decision of the Tribunal

12. On 10 November 2008, the applicant applied to the Tribunal for review of the delegate’s decision (CB 161). The applicant attended a hearing before the Tribunal on 5 January 2009 (CB 430). On 30 September 2009, the Tribunal affirmed the decision of the delegate (CB 562 ff).
13. The Tribunal accepted that the applicant was a citizen of Kenya, a Kikuyu and a Catholic. It accepted that she was a supporter of the Party of National Unity (PNU) and that she was seriously assaulted during post-election violence in December 2007. However, it did not accept that that assault was more than an individual episode unique to the collapse of law and order in a particular time and place (CB 606 [223]).
14. It accepted that she had a customary law husband who was a Kisii and had lived with him for some time in a Kisii area. However, it did not accept that this move was precipitated by a threatening letter from the applicant’s brother (CB 605 [215]) or in order to flee opposition to their marriage (CB 606 [217]). It concluded that the applicant did not face serious harm for reason of her inter-tribal marriage (CB 606 [220]; 608 [231]).
15. As already noted, the Tribunal accepted that the applicant had suffered harm as a result of post-election violence, however, it found that there was no long-term effect of that violence and that the applicant did not face a real chance of persecution from non-Kikuyu in Kenya because of ethnicity (CB 610 [243]).
16. The Tribunal rejected the claim that the applicant’s brother was a Mungiki (CB 612 [250]). As a consequence, it rejected all of the claims concerning the applicant’s brother. It also found that there was only a remote chance that the Mungiki would harm the applicant for wearing trousers ([CB 613 [259]) or that they would try to recruit her (CB [260]).
17. The Tribunal found that, in light of her age and family’s attitude towards the issue, there was a very remote chance that the applicant would be subject to female genital mutilation (CB 614 [263–264]).
18. Finally, the Tribunal considered that the applicant would not be harmed by the authorities on return to Kenya because of her application for protection in Australia (CB 616 [275]).
19. For all of these reasons the Tribunal concluded that the applicant was not a person to whom Australia owed protection obligations and affirmed the delegate’s decision.

The application to this Court

20. These proceedings began with a show cause application filed on 26 October 2009. The applicant now relies upon an amended application filed on 6 January 2010. There is one ground in the application, with particulars, in the following terms:
    • 1. The Second Respondent made a jurisdictional error in making a finding of fact which was irrational, illogical and not based on findings or inferences of fact supported by logical grounds, and which was a critical step in the Second Respondent’s reasoning.
      • Particulars
      • a. At paragraph 227 of its reasons for decision, the Second Respondent found that the Applicant had given inconsistent accounts of the way in which, and the reasons for which, the Applicant and her husband were separated in internally displaced person camps.
      • b. In making that finding, the Second Respondent mis-stated that Applicant’s evidence. In particular, the Second Respondent’s reasons suggest that the Applicant did not give any evidence until after the hearing that, in the internally displaced persons camps, she and her husband feared harm if they were seen together.
      • c. However, the Applicant gave evidence in her statutory declaration of 30 December 2008 and at the hearing that in the internally displaced persons camps, she and her husband feared harm if they were seen together.
      • d. The Second Respondent’s finding that the Applicant had been inconsistent in this regard is therefore irrational, illogical and not based on findings or inferences of fact supported by logical grounds.
      • e. The finding was a critical step in the Second Respondent’s reasoning.

The evidence and submissions

21. I received as evidence the court book filed on 20 November 2009 and the affidavit of the applicant made on 20 January 2010, to which is annexed a transcript of the Tribunal hearing conducted on 5 January 2009.
22. The applicant claims that the Tribunal’s decision was based to a significant extent on her credibility. One of the factors which led to the Tribunal’s adverse assessment of the applicant’s credibility is said to be its finding that the applicant had given inconsistent accounts of the way in which, and the reasons for which, the applicant and her husband were separated in internally displaced person camps (CB 607 [227]). This finding is said to have resulted from a misstatement of the applicant’s evidence.
23. The applicant contends that the Tribunal fell into error in misinterpreting her evidence concerning her detention with her husband and the knowledge of their ethnicity of people at the camps at which they were detained. The applicant concedes that generally there is no error of law if the Tribunal simply makes a wrong finding of fact[2] but relies upon the proposition that a factual finding by the Tribunal which is a critical step in its ultimate conclusion and which is unsupported by evidence may well constitute a jurisdictional error[3]. The applicant notes that the Tribunal in this case made a finding of fact that there was inconsistency in the applicant’s evidence about the camps where she and her husband had purportedly stayed (CB 607 at [227]). The inconsistency found by the Tribunal related to whether the applicant and her husband were held in the camp where they were gender segregated or whether they were unable to associate with one another for fear of being harmed. The Tribunal was not satisfied that the applicant was harassed in the camps for reasons of her inter-tribal marriage (CB 607 at [227]). The applicant contends that there was no inconsistency. She had claimed that one camp was gender segregated but she also claimed that she found it difficult to associate with her husband due to tribal pressure. The Tribunal’s factual finding on inconsistency is said to be critical to the adverse credibility assessment made by the Tribunal about the applicant.
24. The Minister submits that there was evidence to support the Tribunal’s finding of inconsistency and, on that basis alone, the application must fail. The Minister notes that the Tribunal was aware that the applicant and her husband had been held at more than one camp and that she had asserted that initially her Kikuyu ethnicity had not been discovered but it was later discovered or suspected in one of the camps. The Tribunal saw inconsistency in the applicant’s evidence as to whether or not her ethnicity had been discovered or suspected.
25. Alternatively, the Minister submits that the finding of inconsistency was not critical to the Tribunal’s decision. The Minister submits that the Tribunal went through a detailed analysis of the applicant’s claims and that the Tribunal made findings of inconsistency in respect of numerous aspects of her evidence. The Tribunal’s overall conclusion that the applicant did not face serious harm for reasons of her inter-tribal marriage was made on the basis of particular facts found rather than because of an assessment of the applicant’s general credibility.

Consideration

26. The parties’ arguments centre upon paragraph 227 of the Tribunal’s reasons (CB 607). That paragraph reads:
    • There is inconsistency in the Applicant’s evidence about the camps where she and her partner/husband purportedly stayed. In her 30 December 2008 statutory declaration to the Tribunal, she said that on their way back to Nairobi from Kisii in January 2008 they initially stayed together in a camp where her Kikuyu ethnicity was not discovered. This claim suggested that it was assumed in the camp that the Applicant was Kisii. The Applicant also claimed in the same statement that after her three-day stay in hospital she and her husband were moved to camps that were gender-segregated. She adhered to this claim at the hearing. She demonstrated a degree of consistency here. However, in a post-hearing submission, the Applicant claimed that she and her husband were in a camp where they could not associate with each other for fear of being harmed. This claim implies that the different ethnicities of the Applicant and her husband were discovered or suspected by the people in the particular camp. The Tribunal has considered if stress or depression issues account for the inconsistencies in the Applicant’s evidence about what happened to her in the camps, but it is not satisfied that this explains the inconsistency here. On the evidence before it, the Tribunal is not satisfied that the Applicant was harassed in the camps for reasons of her inter-tribal marriage.
27. Also relevant to an analysis of the issues raised by the parties is paragraph 231 of the Tribunal decision at (CB 608):
    • Overall, the Applicant’s evidence about the pressures on her relationship is unreliable. The Tribunal gives weight to how the relationship evidently fared before the post-election period in Kenya and gives weight to the evidence about the relationship continuing. Whilst the Tribunal accepts that the loss of the child would have put terrible strain on the Applicant and on her relationship with her husband, the evidence before the Tribunal leads it to the view that the relationship survives that loss. On the evidence before it, the Tribunal finds that it is not satisfied that the Applicant has faced significant harassment arising from her inter-marriage or that she would face a real chance of serious harm for reasons of her relationship in the reasonably foreseeable future.
28. The Tribunal considered and rejected a number of other claims made by the applicant about which the applicant makes no complaint. The Tribunal concluded at paragraph 277 of its reasons (CB 616):
    • The Tribunal has considered the Applicant’s claims separately and cumulatively. The Tribunal has considered whether the Applicant faces a real chance of Convention-related persecution due to the cumulative factors of being a female, Catholic, pro-PNU Kikuyu who is married to a Kisii, who is uncircumcised and who does not agree with or support the Mungiki. The Tribunal is not satisfied on the evidence before it that the Applicant faces a real chance of Convention-related persecution for any cumulative reasons.
29. In SFGB v Minister for Immigration[4] at [18]-[20] the Full Federal Court said:
    • The proceedings before us involve an appeal from the decision of the primary judge pursuant to s 24 of the Federal Court of Australia Act 1976 (Cth). At the hearing of the appeal, leave was sought and granted for the appeal grounds to be amended. The effect of the amendment was that the arguments put before the primary judge (and on which he had decided the judicial review application before him) were abandoned. Instead a different argument was put. That argument was that the Tribunal had made a jurisdictional error in making a finding that the appellant was not at real risk of persecution. The basis of the alleged jurisdictional error was put on various interrelated bases: that the Tribunal did not correctly identify the proper legal test for persecution or, if it did, then it reached a factual conclusion unsupported by any evidence; or that it failed to consider other relevant evidence that was before it; or that its conclusion on the evidence was `Wednesbury unreasonable'. But the essence of the argument was that there was no information before the Tribunal from which it could realistically draw the conclusion that there was a government in control of the place from which the appellant came that could or would protect the appellant from persecution for a Convention reason.
    • This argument, if it were made out, would be sufficient to establish that the Tribunal had made a `jurisdictional error' so as to found jurisdiction in this Court to intervene. If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: see Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 355-357. If the decision of the Tribunal was `Wednesbury' unreasonable or if the material on which the Tribunal relied was so inadequate that the only inference was that the Tribunal applied the wrong test or was not, in reality, satisfied in respect of the correct test, then there would also be jurisdictional error: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 (`S20') at 62, 67, 76, 90-91.
    • On the other hand, if there is sufficient evidence or other information before the Tribunal on which it could reach the conclusion it did then it is for the Tribunal to determine what weight it gives to that evidence. Indeed, unless the relevant fact can be identified as a `jurisdictional fact', there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 35-36. It is for the Tribunal to determine the merit of the claim. The line between merit review and jurisdictional error may not be a `bright line', but it is nevertheless an essential one: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272.
30. Further, in Minister for Immigration v VOAO & VOAP[5] at [5] a differently constituted Full Court said:
    • Counsel for the appellant accept that an error of law will be established if it appears that the Tribunal has made a finding of fact, or has drawn an inference, without any supporting probative evidence. They also accept that this error will amount to jurisdictional error if the Tribunal’s decision is based on such a finding. In our opinion this is such a case, although the application of the principle is here complicated by the circumstance that the relevant finding was of a negative, rather than positive, character.
31. I accept that the relevant test is[6]:
    • A determination of the Tribunal as to a state of satisfaction or otherwise, of the relevant criteria or criterion in question, that is based upon a finding of fact or inferences drawn from facts, not based on logical or rational grounds, will give rise to an error of jurisdiction if there is no evidence to support the finding or no proper basis for drawing the inference; or, if there be some evidence, although inadequate, reliance by the Tribunal upon that inadequate evidence gives rise to an inference that the Tribunal has misconceived the test or is not, in reality, satisfied of the requisite matters, as a result of which there has been only a purported, rather than a real, exercise of the power conferred upon the Tribunal.
32. I also accept that the Tribunal may fall into jurisdictional error if it makes a finding which seriously misstates what has occurred[7].
33. At paragraph 227 of its reasons the Tribunal found inconsistency in the applicant’s evidence on the question of whether or not her ethnicity (being different from her husband’s) was discovered or suspected in the camps at which she and her husband were held. The Tribunal notes that the applicant had initially claimed that her Kikuyu ethnicity was not discovered. In a post-hearing submission the applicant asserted that she and her husband could not associate with each other for fear of being harmed which, in the Tribunal’s mind, implied that their different ethnicities had been discovered or were suspected by people in the particular camp. There is a lack of logic in the Tribunal’s reasoning at several levels. The first problem is that, while the Tribunal was aware that the applicant and her husband had been held at at least two (and on her evidence, three) camps, it glossed over that fact in finding an inconsistency in her evidence. The evidence was that in the first camp where they were held, her Kikuyu ethnicity was not discovered. Her evidence relating to her inability to associate with her husband related to the second or third camps at which they were held. Further, whether or not the applicant’s ethnicity was known at one or other of the camps, her claim was that she could not associate with her husband for fear of being harmed. It is not inconsistent with her statement that her ethnicity had not been discovered to assert a fear of harm if it had been discovered.
34. While the Tribunal’s reasoning in paragraph 227 is not particularly convincing, the Court must be careful not to stray into an analysis of the merits of the Tribunal’s reasoning. The fact is that the applicant had made two different statements in her initial statutory declaration to the Tribunal and in her post-hearing submission. She had said different things. The Tribunal saw those different statements as inconsistent. Whether they were truly inconsistent is a matter of analysis. The Tribunal did not misrepresent what the applicant had said. While I would not myself have reached a finding of inconsistency based upon what the applicant said in her two statements, there was, in my view, some (albeit slight) evidence to support that finding. Further, the conclusion reached by the Tribunal was not an adverse credibility finding but a finding that, on the evidence before it, the Tribunal was not satisfied that the applicant was harassed in the camps for reason of her inter-tribal marriage. There is no doubt in my mind that that conclusion was open to the Tribunal on the material before it, whether or not the Tribunal had misunderstood or misconstrued the applicant’s evidence in relation to the circumstances at the various camps at which she and her husband had been held. The facts as asserted were that while the applicant feared harm, she was not in fact harmed in the camps.
35. I also accept the Minister’s submission that the Tribunal’s finding was not critical to the outcome. The Tribunal found at paragraph 231 of its reasons (CB 608) that the relationship between the applicant and her husband had survived pressures (which the Tribunal had accepted on the facts) and the Tribunal was not satisfied that the applicant had faced significant harassment arising from her inter-tribal marriage. There was not a real chance of her suffering serious harm for reasons of her relationship in the reasonably foreseeable future. That was but one of a series of findings made by the Tribunal which led it to the conclusion that the applicant does not face a real chance of Convention related persecution in Kenya.
36. I accept the Minister’s submission that the Tribunal’s conclusion that, overall, the applicant did not face serious harm for reasons of her inter-tribal marriage was made on the basis of particular facts found rather than because of an assessment of the applicant’s general credibility.
37. I conclude that the Tribunal did not fall into error by making an irrational finding which was unsupported by any evidence. Neither did the Tribunal actively misrepresent the facts as asserted by the applicant. On any view, it was open to the Tribunal to conclude that, on the applicant’s own account, she had not been seriously harassed because of her inter-tribal marriage at the camps at which she and her husband had been held.
38. I conclude that the Tribunal decision is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I will so order.
39. I will order that the applicant pay the first respondent’s costs of and incidental to the application in accordance with the Court scale.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 9 March 2010

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[1] The applicant’s claims are summarised in the Tribunal’s decision at CB 567–571 [19]–[50] and pages 602–603 [192]–[203].
[2] Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 560 [138] per Gummow and Hayne JJ.
[3] See SFGB v Minister for Immigration [2003] FCAFCA 231 at [19] and Minister for Immigration v VOAO & VOAP [2005] FCAFC 50 at [5].
[4] [2003] FCAFC 231
[5] [2005] FCAFC 50
[6] SZDTZ v Minister for Immigration [2007] FCA 1824 at [32].
[7] See SZDFZ v Minister for Immigration [2008] FCA 390 at [41]- [43].