SZNZY v Minister for Immigration & Anor [2010] FMCA 82 (4 March 2010)

Last Updated: 4 March 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNZY v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 82

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – denial of natural justice not proved – Tribunal has no duty to make enquiries.

Migration Act 1958, ss.65, 422B, 424A, 425, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1 Re Ruddock (in his capacity as Minister for Immigration & Multicultural Affairs) & Anor; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437 Minister for Immigration, Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123

Applicant:

SZNZY

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2703 of 2009

Judgment of:

Cameron FM

Hearing date:

8 February 2010

Date of Last Submission:

8 February 2010

Delivered at:

Sydney

Delivered on:

4 March 2010

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent:

Mr T. Reilly

Solicitors for the Respondents:

Sparke Helmore

ORDERS

(1) The application be dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2703 of 2009

SZNZY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Nepal where, she claims, she had a child out of wedlock. She alleges that the father of her child denied paternity and threatened to kill her if she made such claims. She alleges that as a single mother in Nepal, she faces ostracism and humiliation and is vulnerable to exploitation by males in general.
2. After her arrival in Australia on 9 July 2008, the applicant lodged an application for a protection visa. This was refused by a delegate of the first respondent (“Minister”) on 17 November 2008. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
3. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
4. For the reasons which follow, the application will be dismissed.

Background facts

5. The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 13 of the Tribunal’s decision (Court Book (“CB”) pages 313 – 322).
6. In a written statement received by the Minister’s department on 22 August 2008 the applicant made the following claims:
   1. she met her ex-boyfriend in 1999 whilst shopping for food items in a retail store owned by his family in Beni. He introduced himself and told her that he loved her, gave her the food items for free and then asked her to stay, which she did;
   2. they secretly lived together as a couple for three months. She was very happy and thought that her boyfriend would marry her even though she was of lower caste. However, after three months he became physically and sexually abusive. He tried to make her work as a prostitute but instead she fell pregnant;
   100. her boyfriend’s parents and relatives were offended by the relationship and subsequently evicted her from the home. When she returned to her village she encountered problems with her own family because of her pregnancy and ended up staying with an old school friend;
   4. her son was born in February 2000. With the exception of her friend, she did not tell anyone who the father of her son was because he threatened to kill her if she insisted on making such claims;
   5. when her son was seven he wanted to know who his father was so she decided to take him to Beni to see him. However, her
      ex-boyfriend spotted her and told her to “disappear immediately”. He threatened to kill her if she introduced the boy to him and his family;
   6. she was forced to leave the village after repeated threats from her ex-boyfriend and his family. In September 2007 she went to Kathmandu where she stayed with her friend’s parents. They were sympathetic to her situation and encouraged her to go overseas so that she could live a normal life;
   7. she has a continued fear of persecution from her ex-boyfriend and his family arising from their general intolerance in recognising and accepting her son;
   8. her family ignored her plight as she had brought shame on them;
   9. in 2005 she was raped by Maoists. She could not get help from the police as she lived in a Maoist-controlled area;
   10. she and her son have been shunned by Nepalese society and she faces ostracism, humiliation, discrimination and persecution because of the social stigma attached to her as a “prostitute single mother”. She is also vulnerable to violence and exploitation and faces harm from males in general; and
   11. she cannot obtain the protection of the authorities as they engage in discriminatory and harassing behaviour towards vulnerable women such as herself.
7. At a hearing before the Tribunal on 10 March 2009 the applicant made the following additional claims:
   1. she used to go to Beni about once a month in order to buy foodstuffs for her family. She had met her boyfriend at his shop in Beni. He showed interest in her and told her that he loved her and that he wanted to marry her;
   2. she met her ex-boyfriend in 1999 when she was 16 years old. She did not tell her family about the relationship because she knew that they would be opposed to it on caste grounds;
   100. her ex-boyfriend convinced her that he loved her and told her that they should live together before getting married. He also told her that they would marry first and then tell their respective families;
   4. she decided to move in with him after their fourth meeting and did so without informing her parents. She simply went to Beni on a shopping trip and did not return home;
   5. about a month after she moved in, her parents learned of her whereabouts from other villagers. They would have stopped worrying at this point;
   6. she and her ex-boyfriend lived in his family’s shop (which he was managing) while his parents lived elsewhere. His parents did not know that she was living there because she hid whenever they came to visit. Also, she did not leave the room during the three months in case people saw her;
   7. when she returned to her village her parents refused to take her in, however, a friend from school learned of her circumstances and took her to live with her parents in Patlekhet. They later moved to Kathmandu but allowed her to stay in their home and farm their land. She stayed there for seven years and grew corn and rice which she sold. She had no contact with her family or her
      ex-boyfriend during this period;
   8. the farm in Patlekhet was located in an area where Maoists were known to be active. She was raped by one of their militia in 2005 but could not bring herself to tell anyone what had happened. She feared that the Maoists would kill her if she did;
   9. her ex-boyfriend reacted violently when she took her son to Beni to see him in September 2007. Afterwards, she rang her friend in Kathmandu and told her what had happened. Her friend drove out to Beni and brought her back to Kathmandu and her parents then arranged a visa for her to come to Australia. Her friend’s parents are now looking after her son; and
   10. her ex-boyfriend now has a son by marriage and will, in order to protect the latter’s inheritance, attempt to kill her son.

The Tribunal’s decision and reasons

8. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
   1. the Tribunal formed the view in the course of the hearing that the applicant was not recounting actual lived experiences but, rather, was making up answers to questions as she went along. For example, when the Tribunal asked the applicant whether her parents might be concerned by her failure to come home after a shopping trip, she did not seem to have contemplated this, simply saying that her family were later informed of her whereabouts;
   2. she provided conflicting evidence about the timeframe of the relationship with her boyfriend, stating in her written statement that the relationship commenced in 1999 (i.e. when she was
      20 years old), whereas in her oral evidence she stated that she met him in 1999 and also that she met him when she was 16 years old, which would have put the meeting in 1995. In addition, the witness statements she provided in support of her protection visa application indicated that she was married to her boyfriend on
      17 September 1998;
   100. the Tribunal did not find convincing the applicant’s claim that during the three month relationship she remained hidden in a room next to her boyfriend’s shop and never ventured out;
   4. the applicant’s claim that her parents became aware of her whereabouts after a month did not sit well with her claim that her boyfriend’s parents were unaware that she was living with their son for the duration of the relationship;
   5. the Tribunal was unpersuaded by her claim that she resided for seven years on her own with a child in the house of a friend eking out a living by working their land, noting that her evidence on this subject was vague and limited;
   6. the Tribunal considered it incongruent that her friend’s family were sufficiently concerned about her well being such that, on the one hand, they accepted her into their home and eventually arranged a visa for her to come to Australia to avoid harm but, on the other hand, did not seem concerned about leaving her on her own with a young child for seven years in an area where Maoist militia were known to operate;
   7. regarding the claimed event in September 2007 when the applicant took her son to see his father, the Tribunal was unpersuaded that, on the basis of one event initiated by the applicant, her friends would consider it necessary for the applicant to flee the country, would arrange a visa for her to come to Australia and would also agree to take care of her son;
   8. the Tribunal considered it incongruent that following a rape by Maoists the applicant remained in the house on her own and did not avail herself of protection from her friends in Kathmandu while on the other hand, after an altercation with her boyfriend which she instigated, she rang her friends and arranged to flee to Kathmandu; and
   9. in light of the weaknesses in the applicant’s evidence when considered collectively, the Tribunal was not satisfied that the applicant’s circumstances in Nepal were or are as she claimed.

Proceedings in this Court

9. The grounds of the application commencing these proceedings were pleaded as follows:
   • 1) I disagree with the purported decision given by the Tribunal member. I am the victim of decision made by the RRT.
   • 2) The Tribunal member regarded me as an implicit economic refugee other than a refugee of persecution.
   • 3) The Tribunal member’s decision in relation to my case was taken in breach of the rules of natural justice.
10. In her affidavit affirmed on 4 November 2009 the applicant alleges the following:
    1. her claim to fear persecution was made on the basis that she was a member of a particular social group;
    2. she was denied procedural fairness;
    100. the evidence relied upon by the Tribunal was so unreasonable that the only inference which could be drawn was that the Tribunal applied the wrong test;
    4. the Tribunal did not undertake inquiries;
    5. the Tribunal “misapprehended” the relevant legal tests and consequently failed to determine the appropriate issues;
    6. the Tribunal failed to exercise jurisdiction because it failed to consider the question of adequate state protection; and
    7. the Tribunal failed to satisfy all its statutory requirements in dealing with her case.

Disagreement with decision

11. The first ground pleaded in the application is not truly a ground of review. The applicant’s expression of disagreement with the Tribunal’s decision identifies no basis upon which that disagreement is justified or justifiable. The fact that the Tribunal reached a conclusion with which the applicant disagrees is not, without more, a basis for setting it aside.
12. Even if the Tribunal’s factual conclusions on non-jurisdictional matters were shown to be mistaken, no relief would lie. It was pointed out in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82:
    • In deciding whether writs of prohibition and certiorari (and analogous forms of relief) should be granted, a distinction is drawn between jurisdictional error and error within jurisdiction. This Court has not accepted that this distinction should be discarded. As was noted in Craig v South Australia, that distinction may be difficult to draw. The difficulty of drawing a bright line between jurisdictional error and error in the exercise of jurisdiction should not be permitted, however, to obscure the difference that is illustrated by considering clear cases of each species of error. There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not. (footnotes omitted) (at 141 [163])
13. This passage was quoted with approval in Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1 at [66].

Tribunal’s view of the applicant

14. The basis of the Tribunal’s decision was not speculation on possible motives for the applicant’s arrival in Australia but the fact that it was not satisfied that the applicant met the criteria for the grant of a protection visa. The question of whether that lack of satisfaction resulted from a hearing and consideration in accordance with the law is the only matter which the Court is required to consider. The allegation, as pleaded, does not address that issue and does not disclose jurisdictional error on the Tribunal’s part.

Denial of natural justice

15. No allegation of bias is made against the Tribunal and so this allegation must be understood to refer to the natural justice hearing rule. For the purposes of the proceedings before the Tribunal, that rule is codified by s.422B in the provisions of div.4 of pt.7 of the Act. Since the allegation is unparticularised, no individual section of the Act, nor any selection of sections, has been identified by the applicant as not having observed by the Tribunal.
16. The most important provisions of the division are ss.424A and 425. As the Tribunal’s review was determined on the applicant’s written statement to the Minister’s department and on information she provided to the Tribunal for the purposes of its review, s.424A(3) relieved the Tribunal of any obligation under s.424A(1) to notify the applicant of information which might have been a reason it relied on to affirm the delegate’s decision. Further, the applicant was invited to a hearing before the Tribunal which she attended. At that hearing the Tribunal put a number of its concerns to her, most particularly its concern regarding the credibility of her account. Her claim was ultimately unsuccessful because the Tribunal did not believe her. For these reasons it cannot be concluded the Tribunal failed to meet its obligations under s.425 of the Act.
17. No breach of any other provision of div.4 of pt.7 of the Act is apparent. I conclude that the allegation of denial of natural justice is not made out.

Particular social group

18. The applicant’s claim to be a member of the particular social group of single mothers who breached the Nepalese caste system and are badly treated as a result was expressly considered by the Tribunal and expressly rejected by it.
19. In any event the applicant’s essential allegations were disbelieved by the Tribunal and any claim to fear persecution by reason of membership of a particular social group is fatally undermined by that fact.

Denial of procedural fairness

20. In her affidavit filed in support of her application the applicant deposed:
    • The evidence that the Tribunal relied upon was so unreasonable or so inadequate the only inference was that the Tribunal applied the wrong test or was not in reality satisfied in respect to the correct test. I am a true victim of the impulsive decision made by the Tribunal member in my case.
21. This assertion appears grounded on a belief that the Tribunal was required to have made out a case contrary to the applicant’s allegations and that, in some respect, the Tribunal played the role of a contradictor of the applicant’s review application. This is not correct. Section 65 of the Act requires the Tribunal to affirm the delegate’s decision unless it is satisfied that an applicant meets the criteria for protection visa. That is to say, although there is no formal onus on an applicant in the sense that that term is understood in litigation, for an applicant to be successful before the Tribunal it is nevertheless incumbent upon him or her to place before the Tribunal evidence and arguments which are sufficiently persuasive that the Tribunal will reach the necessary level of satisfaction. In the absence of such persuasive evidence and arguments, s.65 of the Act provides the Tribunal with no option but to affirm the delegate’s decision. The fact is that the material which the applicant placed before the Tribunal did not satisfy it that she met the criteria for a protection visa. For these reasons, this allegation discloses no jurisdictional error on the Tribunal’s part.
22. This ground also fails for the reasons given above in relation to the allegation of denial of natural justice.

Tribunal did not undertake enquiries

23. The Tribunal is under no obligations to make enquiries: Re Ruddock (in his capacity as Minister for Immigration & Multicultural Affairs) & Anor; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437; Minister for Immigration, Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12. It may be that, in exceptional circumstances, a failure by the Tribunal to exercise its discretionary power to undertake enquiries will amount a constructive failure to exercise jurisdiction, in the sense that it failed to conduct a proper review: Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at 1129 [25]. However, nothing has been advanced by the applicant or is apparent in the evidence to indicate that any such circumstances existed in this case. I conclude that this allegation discloses no jurisdictional error on the Tribunal’s part.

Tribunal misapprehended tests

24. The Tribunal’s discussion of the relevant law appearing at paras.4-16 of its decision record discloses no error. The applicant has not identified in what respects the Tribunal misapprehended the tests it was required to apply and I do not conclude that there was any such misapprehension or relevant failure.

State protection

25. The necessity for the Tribunal to consider whether adequate state protection was available to the applicant in Nepal depended on it being satisfied that she had a well-founded fear of persecution for a Convention reason. It was not so satisfied. Rather, it was unconvinced by her factual claims. In those circumstances it was not necessary for the Tribunal to consider issues of state protection and no error is disclosed by the fact that it did not do so.

Constructive failure to exercise jurisdiction

26. In her affidavit filed in support of her application, the applicant deposed:
    • I believe that the Tribunal failed to satisfy all its statutory requirements in dealing with my case and it did not refer to its duty to confer common law, [sic] natural justice in determining my application.
27. Issues of natural justice, whether common law or embodied in statute, have already been considered above. The applicant does not identify any other “statutory requirements” which the Tribunal was obliged to observe and which it either failed to observe or misapplied. In the absence of particularisation, this ground lacks substance and does not ground a conclusion that the Tribunal erred.

Conclusion

28. Jurisdictional error on the part of the Tribunal has not been demonstrated.
29. Consequently, the application will be dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date: 4 March 2010