SZJKF v Minister for Immigration and Citizenship

Federal Court of Australia|2007-10-31|Before: Middleton J

REASONS FOR JUDGMENT 1 This is an appeal against the orders of a Federal Magistrate made on 1 June 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') signed on 31 July 2006 and handed down on 22 August 2006.

PROCEDURAL BACKGROUND AND THE APPELLANT'S CLAIMS 2 The appellant is a citizen of Indonesia who arrived in Australia on 9 March 2006 and lodged an application for a protection visa with the then Department of Immigration and Multicultural Affairs. A delegate of the first respondent refused the application for a protection visa on 5 May 2006. On 7 June 2006 the appellant applied to the Tribunal for a review of that decision and attached a statement that was similar in text to that which was attached to her protection visa application. The appellant attended a Tribunal hearing on 20 July 2006 and gave oral evidence with the assistance of an Indonesian interpreter. 3 The appellant claimed to be a Christian and a widow. She claimed to have a well-founded fear of persecution by native Indonesians as an ethnic Chinese Christian, and as a widow. 4 The appellant's evidence at the hearing before the Tribunal differed in some slight details from the statement provided in her protection visa application and application for review. The appellant stated at hearing that her friend had completed the protection visa application and that she had not checked what had been written. 5 In her written evidence, the appellant claimed that her house and shops had been looted and burned. She claimed that she was often sexually harassed and raped by locals but the government did not protect her. She claimed that her life had always been 'deprived of happiness, security, liberty and freedom' and that all her past experiences had accumulated in 'psychological fear'. She feared that there would be another 'May massacre'. 6 At the hearing, she continued her claim of being a widow persecuted for her Chinese ethnicity by local Indonesians. However, the details as to each limb of her claims differed. In relation to property damage, she claimed that during the 1998 riots the only property looted and burned was her only shop, that being a jewellery shop. She gave evidence that her husband died after the 1998 riots. The appellant gave claims that her husband was unable to find work after their shop was destroyed, his health deteriorated, and he suffered a stroke that left him paralysed. The appellant indicated he had died four or five years after the riots, but as he did not have any health problems previously, she attributed his deteriorating health and resulting death to the riots. In relation to the claims of sexual harassment, the appellant stated that local people 'disturbed' her, and gave claims that she feared a local Indonesian neighbour wanted to rape her because he tried to enter her house and that he had on two occasions tried to touch her hand. She claimed that prior to the riots her children were hit by non-Chinese children.

THE DECISION OF THE TRIBUNAL 7 The Tribunal indicated that it understood the appellant claimed to 'fear persecution as a Chinese Christian, and tacitly, also as a widow'. 8 The Tribunal found the appellant was a witness of 'variable credibility'. On some issues, the Tribunal found her evidence 'to be exaggerated, or designed to suggest links that did not withstand scrutiny'. It gave the example that she tried to relate her husband's death to the riots, but further questioning revealed he died of natural causes. The Tribunal noted discrepancies in the written and oral claims but stated that: The Tribunal draws no adverse conclusions from these discrepancies, and considers below all of the applicant's claims in both her written and oral evidence, except where she can be clearly taken to have resiled from them. 9 The Tribunal accepted the appellant was a Chinese Christian and her account of her family circumstances at hearing, but was of the view that she wished to obtain a visa so that her children could obtain a better education. Although this did not establish persecution, the Tribunal noted it had to consider whether her past experiences and other factors establish a real chance of prospective Convention-related persecution. 10 The Tribunal accepted the appellant's shop was destroyed in the anti-Chinese riots in 1998 and that her husband suffered a stroke and was unable to find work. However it was not satisfied that his death at least four years from the riots was attributable to the harm inflicted on them in 1998. The Tribunal accepted the destruction of the business and the threats in mid-1998 were acts of Convention-related persecution but found that such harm 'subsided shortly thereafter'. It did not accept the appellant's economic circumstances were so severe as to amount to persecution or that the causal link was sufficient to amount to a continuation of the persecution. The Tribunal accepted the claims that the appellant's children were harassed but found that the past harm was not persecutory. 11 In relation to the claims of harassment and sexual abuse, the Tribunal found the appellant's written claims were exaggerated and inaccurate but did accept her claims at hearing that she had been accosted. The Tribunal did not accept the sexual harassment was of sufficient seriousness to amount to persecution under s 91R of the Migration Act 1958 (Cth) ('the Act'). The Tribunal found the appellant's departure suggested the commencement of an orderly plan to leave Indonesia rather than a flight from perceived local danger. Furthermore, the appellant had sought protection from the local authorities which proved to be effective. Consequently, the Tribunal did not accept that the appellant was subject to persecutory harm in August 2005 or that she had a subjective fear of harm arising from the sexual harassment. 12 The Tribunal considered other claims of harm. The Tribunal had regard to the appellant's financial support from her brother and her frequent travels to Malaysia and Singapore and was not satisfied the appellant suffered past economic hardship to amount to persecution. 13 The Tribunal also was not of the view that the appellant's past experiences accumulated in psychological fear to amount to persecution. 14 The Tribunal found the appellant's claims of prospective harm were highly generalised. Country information however did not suggest the tensions would spread to the city the appellant had resided in and the Tribunal concluded that there was no real chance the appellant would face persecution as a Chinese Christian. The Tribunal found the appellant's past experiences as a widow did not suggest she would have well-founded fear of prospective harm for reason of such status. 15 The Tribunal also had regard to other matters. It found her frequent trips to Malaysia from August 2005 and delay in leaving Indonesia after receipt of the visa demonstrated she did not fear persecution in Indonesia. The Tribunal also had regard to country information and found the appellant would not be denied state protection.

THE FEDERAL MAGISTRATE'S DECISION 16 On 22 September 2006 the appellant sought judicial review in the Federal Magistrates Court, relying on three grounds: (1) That the Tribunal failed to consider the whole of her case. (2) That it was not reasonable for the Tribunal to make the finding that sexual harassment of her was not serious persecution. (3) That the Tribunal did not adequately consider that she would be put into danger if she went back to Indonesia. 17 The Federal Magistrate considered the grounds in the application and ultimately determined that the grounds could not establish jurisdictional error. 18 In relation to the first ground, his Honour found that any complaint that the Tribunal did not accept the claims was a request for merits review. The Federal Magistrate then had consideration as to whether the Tribunal failed to consider an integer of the claims. His Honour set out the appellant's claims as indicated in the written evidence provided by the appellant to the Tribunal and the Tribunal's summary of the Tribunal hearing. In relation to the claims regarding sexual harassment, the Federal Magistrate made the following observations at [17] to [23]: Plainly, on its account of the hearing, there was some difficulty in obtaining from the applicant a clear and concise set of claims. The Tribunal specifically turned its mind to the issue of what exactly were the applicant's claims that it had to deal with, and noted that: "The Tribunal…considers below all of the applicant's claims in both her written and oral evidence, except where she can be clearly taken to have resiled from them." (CB 97.3). Specifically, the claim, as originally expressed, that the applicant was "often sexually harassed and raped by the locals several times" was not pressed, or raised at the hearing before the Tribunal. When the Tribunal sought to explore with the applicant at the hearing how she was harassed, the applicant replied by describing two instances where a neighbour tried to touch her on the hand. She stated that he tried to unsuccessfully enter her house with a view to, as the applicant thought, "raping her". The Tribunal noted that this differed significantly with what was in the protection visa application, but accepted (albeit with serious reservations) that these incidents had occurred as had been described by the applicant at the hearing. By the time of the hearing, therefore, what was left of the applicant's original claim that she had been raped on a number of occasions, were the incidents relating to being touched on the hand (albeit in a sexual manner) and the unsuccessful attempt to enter her house. I note the Minister's reference to what was said by Bennett J. in SZEIV v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1798 at [34]. "A claim made to the Department and referred to in the delegate's decision would ordinarily be before the Tribunal, however where a claim has been made to the delegate and not advanced at all before the Tribunal, and does not arise from the material before the Tribunal, the Tribunal is entitled to assume that the claim is no longer made. The Tribunal is conducting a review of the delegate's decision, but on the basis of the claims advanced and materials before the Tribunal. If a claim does not so arise and is abandoned, especially where the applicants are legally represented, the Tribunal is entitled to take the view that the applicants do not make the claim, or a claim based on that claim." The applicant was not legally represented before the Tribunal and had not engaged an advisor to act for her in relation to her application. Nonetheless, in my view, and based on the only evidence available to the Court of what occurred at the hearing, the Tribunal was entitled in the circumstances, (given that the applicant did not know of or did not check with her "friend" who had written the application for her, what was in that application, and given that the applicant gave answers to specific questions by the Tribunal as to what she feared if she were to return to Indonesia), to proceed on the basis that the claims it was required to deal with were as presented at the hearing. The Tribunal was entitled to take the view that what survived of the originally stated claim relating to allegations of sexual harassment, and repeated rape, were the incidents and events presented by the applicant at the hearing. The applicant's perceived confidence in presenting these claims was at odds with what was perceived to be the evasive, vague and unfocussed presentation on other issues. The Tribunal, therefore, dealt with the claim of sexual harassment as it was ultimately and clearly put at the hearing. It did not deal with claims that despite being given an opportunity, were not pressed by the applicant. I agree with the Minister that I cannot see error in the Tribunal taking the view that the applicant no longer made the claim (if indeed what was written in the original statement was reflective of her actual claims) that she was raped several times, and it was entitled to proceed to consider and assess the claims as made and clarified at the hearing. 19 The Federal Magistrate found this was a similar situation to the original claims that the appellant's home and house were destroyed in the 1998 riots. It was open to the Tribunal to find that her claim was eventually confined to only her shop being destroyed. Consequently, ground one could not be made out. 20 The Federal Magistrate then turned to the second ground which characterised the findings as 'unreasonable'. His Honour found the Tribunal had considered the claim of sexual harassment and turned its mind to whether it was sufficiently serious to amount to persecution. It was open to the Tribunal to conclude that the fact that the appellant had made subsequent trips to Malaysia was not consistent with a perception of danger, and that it noted the appellant had sought successful protection from the local authorities. Consequently, the Tribunal's analysis was not unreasonable. 21 His Honour found the third ground was a request for merits review. 22 The Federal Magistrate had regard to whether there was a breach of s 424A of theAct. His Honour was of the view that the appellant had effectively republished her protection visa application statement to the Tribunal by providing a similar statement of claims to the Tribunal. It was noted that the statement attached to the application for review was identical to the statement before the delegate except for paragraphing differences. Therefore, the Federal Magistrate found that the information fell within the exception set out in s 424A(3)(b) of the Act.

GROUNDS OF APPEAL 23 On 20 June 2007 the appellant appealed the Federal Magistrate's decision by filing a notice of appeal in this Court asserting that the following: (1) The Tribunal failed to consider the whole of her case. (2) There was no evidence or other material to justify the making of the decision. (3) The Tribunal did not adequately consider that she would be put into danger if she went back to Indonesia. 24 At the hearing of the appeal before me the appellant made no further submissions in support of the notice of appeal, but requested the grant of a protection visa.

CONSIDERATION 25 The arguments raised by the notice of appeal have been considered by the Federal Magistrate. The Tribunal in my view did consider the appellant's case, and there was evidence to justify its decision. 26 I can find no error in the approach of the Tribunal. 27 In my opinion, the approach of the Federal Magistrate and his Honour's conclusion were correct. 28 Counsel for the first respondent raised additionally, in relation to s 424A findings, that reliance could be placed on the decision of the High Court in SZBYR v Minister for Immigration (2007) 235 ALR 609; [2007] HCA 26 where, at [18], the majority found the following: Thirdly and conversely, if the reason why the tribunal affirmed the decision under review was the tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of para (a) of s 424A(1). Again, if the tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information": … does not encompass the tribunal's subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc … If the contrary were true, s 424A would in effect oblige the tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself. 29 SZBYR 235 ALR 609 was handed down by the High Court after the decision of the Federal Magistrate. The first respondent submitted that accordingly, even if the protection visa information was not re-published as the learned Federal Magistrate found, any disbelief of the appellant based upon inconsistencies arising in part from her protection visa application did not come within the ambit of s 424A(1). I agree with this submission. However, in light of my above reasons, this takes the matter no further. 30 In light of the above, the appeal should be dismissed. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

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