SZPAB v Minister for Immigration & Anor [2011] FMCA 439 (15 June 2011)

Last Updated: 16 June 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZPAB v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 439

MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – merits review not applicable in judicial review proceedings – relocation – common law natural justice – bias – good faith on the part of the Tribunal – evidentiary basis for Tribunal’s decision – state protection.

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

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZATV v Minister for Immigration & Citizenship [2007] HCA 40; (2007) 233 CLR 18 Randhawa v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 Januzi v Secretary of State for the Home Department [2006] UKHL 5; [2006] 2 AC 426 SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 NAKF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 730; (2003) 130 FCR 210 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 Minister for Immigration & Citizenship v SZJSS [2010] HCA 48; (2010) 85 ALJR 306

Applicant:

SZPAB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 303 of 2011

Judgment of:

Cameron FM

Hearing date:

1 June 2011

Date of Last Submission:

1 June 2011

Delivered at:

Sydney

Delivered on:

15 June 2011

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Clayton Utz

ORDERS

(1) The application be dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 303 of 2011

SZPAB

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 was assaulted and harassed by Maoists because she did not support them. She also claims to fear persecution in Nepal because she is a member of a particular social group, that group being women in Nepal.
2. After her arrival in Australia on 2 July 2009, the applicant lodged an application for a protection visa. This was refused by a delegate of the first respondent (“Minister”) on 8 October 2010. The applicant then applied to the second respondent (“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 4–10 of the Tribunal’s decision. Relevant factual allegations are summarised below.
6. In a statutory declaration accompanying her protection visa application the applicant made the following claims:
   1. a local Maoist had raped her in front of her husband in March 2009. Her husband was beaten during this attack. She could not report the incident to the police because “nobody wants to displease the Maoists” and as she had lived in a Maoist-controlled area in Nepal the police had not been able to assist her;
   2. she did not support the Maoists and as a result had “suffered endless threats” and fears future persecution from them, especially the local Maoists, YCL;
   100. as a woman in Nepal she is vulnerable to rape and sexual violence at the hands of soldiers, Maoists and the police; and
   4. the government cannot protect her from the Maoists.
7. The applicant provided two additional documents to the department:
   1. a letter, dated 11 June 2010, from the office of a named Village Development Committee, stating that the applicant’s husband was beaten while trying to prevent the applicant from being taken into the jungle by a unknown group on 7 June 2010, as a result of which he was disabled and forced to live in the city; and
   2. a medical certificate relating to the applicant’s husband, dated 25 May 2010, stating that he had broken his left leg and had difficulty walking.
8. The applicant attended a departmental interview on 8 September 2010 and made the following additional claims:
   1. after the attack in March 2009, she and her husband had travelled to the “district headquarters” to receive treatment and remained there for about eight months. After that they went to Kathmandu to live with her father for a month before she came to Australia. During this time, the Maoists threatened her, coming to the district headquarters to deliver the threats;
   2. while her husband was receiving treatment she had returned to her village three or four times to make arrangements for their belongings. She was accompanied by neighbours and relatives;
   100. the attack on her and her husband occurred in the morning and six or seven people were involved. She had lost consciousness during the attack and although she was only aware of one person raping her, there may have been others. Her husband was beaten by three people and her children ran and hid in a valley;
   4. after the attack she was in pain and was given tablets and vitamins. She was suicidal but had lived for her children and husband; and
   5. she did not report the attack to the police because she and her husband feared further harassment from the Maoists. She was last threatened about four months before she went to Kathmandu. She was not safe in Kathmandu because the Maoists would find her and harass her.
9. The applicant subsequently attended a Tribunal hearing and made the following additional claims:
   1. she did not remember when she was first asked to join the Maoists but she and her husband were targeted because they refused to join them and had been harassed by them for a long time;
   2. she had only been attacked once by the Maoists and she knew one of the men involved in the attack against her;
   100. after the attack, she remained in her village for three days before joining her husband at the medical centre because she had to make arrangements regarding their children and property;
   4. on two of her visits to her village while her husband was receiving treatment she was verbally harassed by the Maoists;
   5. she borrowed approximately A$15,000 from a man to finance her trip to Australia which she had to pay back or her children would suffer;
   6. she will commit suicide rather than return to Nepal; and
   7. she was not able to relocate to Kathmandu.
10. On 12 January 2011, after the hearing, the Tribunal wrote to the applicant inviting her to an interview on 27 January 2011 to comment on or respond to certain particularised information which it considered would be the reason, or part of the reason, for affirming the delegate’s decision. The applicant attended the interview on 27 January 2011 and said that she had provided a truthful and consistent account of her experiences in Nepal. She said that the discrepancies in her evidence arose out of language difficulties, interpreter error, her limited education and her poor memory. She repeated the claims that she had made at the Tribunal hearing but said that after the attack she had remained in her village for two, not three, days before joining her husband at the medical centre. She also said that she had wanted to report the attack to the police but her husband had told her not to tell anyone.

The Tribunal’s decision and reasons

11. 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 found that the applicant provided contradictory information in relation to her claims. It found that she could not recall the exact detail or sequence of events which led to her departure from Nepal. The Tribunal formed the view that the applicant may have exaggerated her claims as she had been unable to recall and repeat those claims consistently through the processing of her application. In this regard, the Tribunal noted:
       1. although the applicant claimed that she was attacked in February or March 2009, spent eight months with her husband receiving medical treatment and then moved to Kathmandu for a month before she came to Australia, the department’s record indicated that she had arrived in Australia on 2 July 2009;
       2. the Village Development Committee document submitted by the applicant indicated that her husband had been beaten on 7 June 2010 whilst trying to prevent his wife from being taken into the jungle by an unknown group; and
       3. she gave conflicting evidence about how often and where she was harassed by the Maoists after the attack on her and her husband. She also gave conflicting evidence about how soon after the attack she went to the medical centre where her husband was treated for the injuries he sustained in the attack;
    2. the Tribunal accepted that a crime was committed against the applicant but was not satisfied that the attack on the applicant and her husband was committed by Maoists or for a political or other Convention reason. It was of the view that the applicant did not have sufficient information regarding the men involved in the attack, or their motives, to determine whether they were Maoists or that political opinion was a contributing factor in the attack.
       It accepted that the applicant knew one of her attackers and that he was a Maoist but could not be satisfied that the one person she did recognise participated in the attack for political reasons or that political opinion was a motivating factor for the other perpetrators;
    100. the Tribunal was not satisfied that the applicant was at risk of being subjected to a similar attack in the future for a Convention reason;
    4. whilst the Tribunal accepted the applicant’s claim that she was afraid to return to her village, it nevertheless found that the attack on her and her husband was an isolated incident which was confined to the remote village where they lived and that she was not at risk of harm in Kathmandu. The Tribunal noted that when the applicant left the village and relocated to Kathmandu, she was not approached or harmed by the men involved in the attack or by Maoists from her village and it found that a similar situation would continue in the reasonably foreseeable future if she returned to Kathmandu. The Tribunal found that it was reasonable, in order to avoid the persons she feared in her village, that the applicant relocate in Nepal as she did before;
    5. while accepting that the applicant had a subjective fear of returning to Nepal, the Tribunal was not satisfied that her fear that she would be vulnerable to rape and sexual violence by soldiers, Maoists and the police for reasons of her membership of a particular social group, that group being women in Nepal, was well-founded. The Tribunal found that the applicant had never been targeted by soldiers or the police in Nepal and that the difficulties which she had had with the Maoists were confined to her village. The Tribunal also had regard to information from external sources which did not support the applicant’s claim that women in Nepal are commonly vulnerable to rape and sexual violence by Maoists, the police or soldiers;
    6. having further regard to external sources of information, the Tribunal was satisfied that state protection is commonly available to citizens in Nepal, including women who suffer sexual assault. The Tribunal found that state protection was available to the applicant in Nepal but she did not take the necessary steps to access it. It also found that if the applicant required state protection in the reasonably foreseeable future, it would be available to her; and
    7. the Tribunal accepted that the applicant would face difficulties in relation to the money she had borrowed to pay for her journey to Australia but found that this was a personal matter which was beyond the scope of the Convention.

Proceedings in this Court

12. The grounds of the application commencing these proceedings were pleaded as follows:
    • 1. I argue that I have a well founded fear of persecution on the basis of being a member of particular social group as a victim of rape by the Maoists due to my imputed political opinion in my country.
    • 2. It is not fair that the Tribunal rejected my claim on the basis that I could avoid harm by relocation within my country. I contend 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, natural justice in determining my application. The Tribunal member intentionally expressed reluctances in considering my case to be valued for the purpose of Convention reason.
    • 3. I argue that the Tribunal member’s decision in my case has been vitiated by an error of law as the evidence that the Tribunal member relied upon is so unreasonable or so inadequate the only inference is that the Tribunal member failed to satisfy all its statutory requirements in dealing with my case.
    • 4. The Tribunal failed to exercise its jurisdiction by failing to consider and make findings in respect of my claims as it did not address the question of whether a person in my position was able to obtain adequate protection.

Ground 1

13. The first ground of the application invites the Court to reach a conclusion on the merits of the applicant’s application for a visa different from the conclusion arrived at by the Tribunal. As observed earlier in these reasons, the Court cannot do this. Its role is to determine whether the Tribunal has applied proper procedures and properly applied the law in reaching its conclusion. For these reasons, the first ground of the application does not disclose jurisdictional error on the Tribunal’s part.

Ground 2

14. The first element of the second ground of the application is that it was not fair of the Tribunal to reject the applicant’s claim on the basis that she could avoid harm by relocating within Nepal.
15. In SZATV v Minister for Immigration & Citizenship [2007] HCA 40; (2007) 233 CLR 18, the High Court was called upon to consider the relocation principle which had been discussed in the Full Court of the Federal Court in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437. In the latter case, Black CJ said:
    • Although it is true that the Convention definition of refugee does not refer to parts or regions of a country, that provides no warrant for construing the definition so that it would give refugee status to those who, although having a well-founded fear of persecution in their home region, could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country. If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders.
      (at 440-441)
16. In SZATV the appellant pointed to the absence of any reference in the text of the Convention definition to relocation to a safe area within an applicant’s country of nationality or former habitual residence. Gummow, Hayne and Crennan JJ, with the agreement of Callinan J, said that the process of reasoning found in the speech of Lord Bingham of Cornhill in Januzi v Secretary of State for the Home Department [2006] UKHL 5; [2006] 2 AC 426 demonstrated that the Convention definition incorporates the issue of relocation. Their Honours accepted the proposition that a person would be excluded from refugee status if, in all the circumstances, it would be reasonable to expect him or her to seek refuge in another part of the same country: at 26 [22]. Consequently, in this case it was appropriate for the Tribunal to consider whether the applicant could avoid the harm she claimed to fear by relocating within Nepal.
17. Further, to the extent that the applicant may be alleging that she was denied procedural fairness in the way that the Tribunal arrived at its conclusion on relocation, it should be observed that at paras.43, 45 and 46 of its decision, where it summarised certain portions of its hearing which the applicant attended, that the question of relocation was expressly discussed and the applicant stated that she would not be safe in Kathmandu because she had refused to join the Maoists in her village. Further, as to the reasonableness of relocation to Kathmandu the Tribunal commented that the applicant had been able to relocate to that city previously and her circumstances, particularly having her family in Kathmandu, would enable her to live there in the future if she did not wish to return to her village. The Tribunal went on to put the applicant on notice that it would have to consider whether she could be safe from the harm she anticipated in her village by living in Kathmandu, commenting that her circumstances enabled her to live there.
    In response, the applicant said merely that returning to Nepal was not an option and that she would prefer to commit suicide than return.
18. The Tribunal clearly raised the issue of relocation with the applicant, together with specific matters which it had identified as indicating that relocation was both possible and reasonable. The Tribunal based its decision on those considerations which it identified and raised with the applicant and, for that reason, it cannot be said that it had relevantly denied her procedural fairness. In particular, and as it was required to do, the Tribunal addressed the question whether relocation was practicable in the applicant’s particular circumstances by reference to the particular objections which she raised to that possibility: SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46; (2009) 174 FCR 415.
19. In relation to the second element of the second ground of the application, that the Tribunal failed to satisfy its statutory obligations and failed to refer to its obligation to observe common law natural justice, it is first useful to observe that this aspect of the allegation appears to raise no issue involving the natural justice bias rule. As far as the natural justice hearing rule is concerned, its operation has been excluded from Tribunal hearings by s.422B of the Act, although certain aspects of those obligations have been codified in the provisions of div.4 of pt.7 of the Act. In relation to the “statutory requirements” mentioned in the allegation, the applicant has not identified the requirement to which she refers. If she intends to refer to those provisions of the Act directly relevant to the Convention tests, it should be noted that the Tribunal referred expressly to these in that part of its decision under the heading “Relevant Law”. As to the provisions of div.4 of pt.7, it is apparent that the Tribunal satisfied its obligations under the two most important provisions of that division, ss.424A and 425, and it is not apparent that any other provisions of that division are particularly relevant in this case.
20. The final element of the second ground of the application is expressed in the following terms:
    • The Tribunal member intentionally expressed reluctances in considering my case to be valued for the purpose of Convention reason.

It is not clear what this allegation is intended to convey but it suggests bias or a lack of good faith on the Tribunal’s part. If it means to allege the former, then it fails to particularise or identify this. Further, allegations of this sort must be supported by cogent evidence and the applicant adduced no evidence relevant to this topic. The only evidence which is relevant to it is what is contained in the Court Book which is exhibit A in the proceedings and, in particular, the Tribunal’s decision record. There is nothing in the Court Book, and in particular the Tribunal’s decision record, which supports a conclusion that the Tribunal’s decision was affected by bias, whether actual or apprehended.

21. As to the possibility that the Tribunal may have approached the review other than in good faith, the relevant criteria for a finding of a want of good faith or, as Gyles J said in NAKF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 730; (2003) 130 FCR 210 at 217, bad faith, were discussed by the Full Court of the Federal Court in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at 756 [43]-[46] and the following considerations arose from that discussion:
    • an allegation of bad faith is a serious matter involving personal fault on the part of the decision-maker;
    • the allegation is not to be lightly made and must be clearly alleged and proved;
    • the presence or absence of honesty will often be crucial;
    • the circumstances in which the court will find an administrative decision-maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review;
    • mere error or irrationality does not of itself demonstrate lack of good faith. Bad faith is not to be found simply because of poor decision-making. It is a large step to jump from a decision involving errors of fact and law to a finding that the decision-maker did not undertake its task in a way which involves personal criticism; and
    • errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness.
22. A consideration of the Tribunal’s decision and the reasons it expressed for reaching it does not reveal a want of good faith on its part. Rather, it reveals a conscientious attempt on the part of the Tribunal to provide the applicant with a fair hearing and to consider the available evidence in an objective and fair way. I do not conclude that the Tribunal failed to conduct the applicant’s review in good faith.

Ground 3

23. The third ground of the application alleges that the evidence before the Tribunal was insufficient to ground the Tribunal’s findings with the consequence that it failed to discharge its statutory duty. Contrary to this allegation, the findings which the Tribunal reached were not unsupported by evidence but were open on the evidence. Further, to the extent that the allegation may imply some illogicality or irrationality on the part of the Tribunal, by reason that the evidence supporting the conclusions was not sufficiently strong that those conclusions could be characterised as logical or rational, it should be stated that its findings and inferences of fact were grounded on probative material and logical grounds: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at 20 [38] per Gummow and Hayne JJ. In this regard, it could not be said that the Tribunal’s decision was so illogical or irrational that no rational or logical decision-maker could arrive at that decision on the same evidence: Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at 647-648 [130] per Crennan and Bell JJ; Minister for Immigration & Citizenship v SZJSS [2010] HCA 48; (2010) 85 ALJR 306 at 313 [35].
24. For these reasons, there is no reason to conclude that the Tribunal’s decision was affected by jurisdictional error by reason of a paucity of evidence or that, on this account, the Tribunal failed to discharge its statutory obligations.

Ground 4

25. The allegation in the fourth ground of the application, that the Tribunal did not address the availability to the applicant of state protection in Nepal, must fail on the facts. As the summary of the Tribunal’s reasons for decision appearing above at [11] discloses, the Tribunal found that the applicant did have access to adequate state protection in Nepal, even if she had not sought it while she was there.

Conclusion

26. For these reasons, jurisdictional error on the part of the Tribunal has not been demonstrated.
27. Consequently, the application will be dismissed.

I certify that the preceding 27Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !twenty-seventwenty-seven (27) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date: 15 June 2011