CZBF v Minister for Immigration

[2013] FCCA 679

FEDERAL CIRCUIT COURT OF AUSTRALIA

CZBF & ANOR v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 679

Catchwords:

MIGRATION – Judicial review – consideration of ‘internal relocation’ – consideration of fatwa issued against applicant Husband – failure of RRT to consider details of fatwa (including no country information regarding incidence and risk in light of fatwa) – interfaith marriage between Muslim and Sikh – no country information before RRT regarding such marriages.

Legislation:

Migration Act 1958 (Cth)

Cases cited:
Abebe v Commonwealth (1999) 197 CLR 510
Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
Muin v RRT (2002) 190 ALR 601
Plaintiff M13/2011 v Minister for Immigration and Citizenship (2011) 277 ALR 667
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473
SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51
Waterford v Commonwealth (1987) 163 CLR 54

First Applicant: CZBF

Second Applicant: CZBG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: CAG 32 of 2012

Judgment of: Judge Neville

Hearing date: 29 August 2012

Date of Last Submission: 5 September 2012

Delivered at: Canberra

Delivered on: 28 June 2013

REPRESENTATION

Advocate/Solicitor for the Applicant: Mr D. Leyden

Solicitors for the Applicant: Canberra & Coast Lawyers, Canberra

Counsel for the Respondents: Ms R. Francois

Solicitors for the Respondents: Clayton Utz, Canberra

ORDERS

1. A writ of certiorari issue to remove into this Court the record of the Refugee Review Tribunal for the purpose of its decision dated 21 March 2012 being quashed;

2. A writ of mandamus issue to require the Tribunal to determine the matter according to law;

3. The First Respondent pay the Applicants’ costs in accordance with the Schedule to the Rules of this Court in the sum of $6646.

FEDERAL CIRCUIT
COURT OF AUSTRALIA
AT CANBERRA

CAG 32 of 2012

CZBF

First Applicant

CZBG

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicants, a married couple from India of different religious traditions (the Husband is Muslim, the Wife is Sikh),[1] who had come to Australia in 2009 on student visas, seek review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 21^st March 2012 which affirmed a decision of the Delegate (made on 4^th May 2011):

   (a) to refuse the Applicants visas on the basis that they were not persons to whom Australia has protection obligations under the Refugee Convention[2], among other things, on the basis that:

   (b) there was no real chance that the Applicants would face persecution for a Convention reason were they to relocate outside Mumbai to another large centre, for example Calcutta.[3]

   [1] The Tribunal accepted that the Applicants are Indian citizens, and that the Husband is Muslim and the Wife Sikh.  See the reasons of the Tribunal at [66] and [70].  The “Decision Record” of the Tribunal is set out in the original Court Book (“CB”) at pp.208-221.

   [2] Convention Relating to the Status of Refugees 1951; the Protocol Relating to the Status of Refugees 1966 (“the Convention”).

   [3] Decision of the Tribunal, at [77]; Court Book (“CB”) p.220.

2. The Tribunal held, at [76], that “there is a real chance that the Applicants would face harm at the hands of each other’s families were they to return to India and live in the vicinity of either of their families.”

3. In addition to what I have already noted from [77] of the Tribunal’s reasons, in the same place it said: “… The Tribunal finds that any risk to the Applicants are [sic] localised risks where their respective families reside, in Delhi and Mumbai.”

4. For the reasons that follow, in my view, jurisdictional error has been established, in which case the record of the Tribunal should be removed into this Court, its decision quashed, and the matter remitted to the Tribunal for determination according to law.

Grounds of Relief

1. Although stated with a not insignificant degree of imprecision, grounds 1 to 5 and ground 8 of the Application filed on 20^th April 2012 may be grouped and considered generally as contentions that the Tribunal failed properly to take into account certain relevant considerations.  These include various matters including threats to the Applicants should they relocate to India, the [in]ability of the local police to protect them, and the inability of the Applicants openly to practice their religious tradition(s) if they returned to India.

2. The other grounds relate to the findings of the Tribunal not being supported by the evidence (ground 7), and contentions in relation to the Applicants being denied procedural fairness (grounds 9 and 10).

3. It is apposite here to record that the Court does not consider grounds 9 and 10 as being properly available to the Applicants; the Court will not deal with them.  The Applicants contend that the Tribunal had a continuing duty to apprise them of the likely or possible adverse findings that the Tribunal was contemplating.  In my view, it is sufficiently clear that such a course would seriously impede the conduct of hearings before the Tribunal and would also make the appeals process perhaps superfluous.  Moreover, the High Court has made it more than plain that ‘procedural fairness does not require the Tribunal to give an Applicant a running commentary upon what it thinks about the evidence that it has given.’  The High Court said: “On the contrary, to adopt such a course would be likely to run a serious risk of conveying the impression of pre-judgment”.[4]

   [4] See SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [47] – [48].

Background

1. The Applicants’ relationship began in Delhi in 2007, during the Husband’s medical internship.  The relationship was kept secret from their families. 

2. The Applicant had previously studied medicine in the Ukraine.  Upon coming to Australia, ostensibly to be with his then girlfriend/now Wife, his intention was to study in Australia to become registered as a doctor. 

3. The parties were married in Sydney in 2009.  Their parents found out about their relationship via a mutual friend.  The Applicant admitted the relationship to his parents.  The Husband contended that since his parents found out about his marriage to a non-Muslim woman, they have disowned him and threatened to kill him.  Death threats have also been made by his Wife’s family for marrying a Muslim. 

4. The Husband claimed (and it seemed not much disputed) that his father published a notice in a local English newspaper dissociating himself from the Applicant.  The Applicant Husband claimed that he and his Wife were receiving life threatening emails from his side of the family.  He also claims that his brother is a “don” in the “Mumbai underworld.”[5] 

   [5] See the Tribunal reasons at [29] and [31].

5. The Delegate’s decision included the not insignificant delay on the Applicant’s part of 19 months after their marriage before seeking protection. 

6. The Delegate determined that there is a functioning police and judicial system in India, and also determined that the Applicants could safely relocate elsewhere in India. 

The Tribunal Hearing

1. Beginning at paragraph [36] of its reasons, the Tribunal set out the evidence given at the hearing.  In very summary terms (noting that the reasons in general are themselves spare if not sparse) I note the following.

2. The Applicant Husband testified that he fears the entire Muslim community, which is against the entire Sikh community because of his interfaith marriage. 

3. The Husband gave evidence in relation to his Grandfather’s and his Father’s foundation of and involvement in Noor-E-Islam.  This organisation is said to be “proactive in promoting and teaching Muslim beliefs and lifestyle”. 

4. Next, beginning at paragraph [41] and following, the Tribunal noted what it described as the Applicants’ somewhat confused testimony in relation to the chronology of the marriage proposal.  I need not detail this evidence and the discussion of it.

5. In relation to the families’ reactions to the marriage, the Tribunal said, at [45] (emphasis added):

   The Applicant testified that his family had become aware of everything, and that he was told that he had made the biggest mistake of his life.  At first, there was no further reaction other than being disowned by his family.  The matter escalated, and posters were made of the couple and put up in 13 cities in 7 states, and a fatwa was issued, and the Applicant fears he will be killed.  He testified that his father lectured all over India.  Documents relating to the fatwa were provided to the Applicant through a friend.

6. A copy of the fatwa, dated 15 November 2010, together with a certified copy of the original, was provided to the Tribunal under cover of a letter from Marion Lê Consultancy, dated 27 September 2011.[6]  It is as well to set out in full the terms of the fatwa.  Translated, it reads as follows:

   [6] See CB, p.165.

   DECREE (FATWA)

   TRANSLATION

   …, you have married a Sikh girl in Australia, according to holy Qura’an the said marriage is not valid, it is not a marriage, but it is absolute fornication.

   According to holy Qura’an its [sic] rape and the rapist should be put to death by stonning [sic].

   I the chief mufti Raza Shah Qadri of above said Islamic learning centre issue a decree (fatwa) against you.

   It is as follows:

   1) You should be killed by stonning [sic] till death.

   2) You deserve for death sentence (wajebul – qatal).

   3) Any muslim [sic] comes across to you, it is his religious duty to kill you for sawab (goodness).

   The copies of decree (fatwa) are being sent to big cities and other religious learning center [sic] across the country.

   NOTE:- Who so ever obey this decree (fatwa) and kill you and send you to hell, he will be rewarded a fine place in the heaven.

7. The Applicant’s further evidence to the Tribunal was as follows. First, the Applicant said that his Wife, having married a Muslim, “is a very big shame for them.” 

8. Secondly, he said that threatening phone calls have been made regarding the marriage and that they have continued frequently.

9. Thirdly, he gave some general information regarding his brother’s association with the underworld, who, he said, is also the manager of Mumbai airport, which he claimed would give him access to immigration information at the airport. 

10. Fourthly, the Applicant said that he delayed claiming protection until such time as the information of his marriage had been passed to his family in India.  He said until that time, the Applicants had no fear. 

11. Fifthly, the Applicant said that a couple had been murdered in India who were the subject of the fatwa, and he also claimed there had been an increase in honour killings in India. 

12. The Applicant claimed that he would not be safe anywhere in India.  He also gave evidence that Sikhs and Hindus married, but that “a Sikh and Muslim marrying is not even thought about.”

13. The Tribunal records only five brief paragraphs ([58] – [62]) in relation to the Applicant Wife’s evidence.  That evidence was to the effect that her family was “actively against the marriage” and that they have “a strong hatred of Muslims.”

14. Like her Husband, the Applicant Wife said that she delayed claiming protection in Australia until such time as the family came to know about the marriage.  The Wife said that there was no protection in India, and that the police will do nothing without money.  The Wife also said that even outside Mumbai, “they would live in fear elsewhere”. 

The Tribunal’s Findings and Reasons

1. I have already noted that the “findings and reasons” of the Tribunal are quite brief – 14 paragraphs in total: [66] – [80]. While not, of itself, a ground of review, the brevity of the reasons makes the Court’s consideration of the challenges made by the Applicants, and equally the Minister’s grounds of resistance, so much more difficult. This is also to say that the reasoning process of the Tribunal, and its consideration of the evidence before it, borders on the problematic. Indeed, the sufficiency or adequacy of the reasons might properly be called in to question.[7]  However, whatever the difficulty the limited reasons pose for the Court, because such an issue was not raised by the Applicants as a ground of review, I will say nothing more about it.

   [7] See, for example, the discussion in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.

2. First, the Tribunal recorded what it described as “the inordinate delay by the Applicants in claiming protection in Australia”.  The Tribunal did not accept the Applicants’ explanation that the reason for the delay was to wait until the parties’ families learnt of the marriage.  Rather, it said (at [68]) that “it finds that the delay in claiming was caused by the Applicant’s Wife being found in breach of her [student] visa condition of no employment whilst in Australia.  The Tribunal finds the delay in claiming leads it to conclude that the Applicants have no subjective fear of persecution in India.” 

3. It is unnecessary to recount issues in relation to the Applicant Husband’s testimony about his “pretty Islamic” father, or about the Tribunal’s questions – but no findings – in relation to “credibility concerns”.

4. At [72] of its reasons, the Tribunal said that it accepted the Applicants’ respective families oppose the marriage.  The Tribunal went on to state, however, that “the Tribunal has credibility concerns relating to the issuance of a fatwa against the Applicant, given the late introduction of this claim in the protection visa application process.  No mention was made of the claimed fatwa until a short time before the Applicants’ tribunal hearing, despite the fatwa having been purportedly issued on 15 November 2010.”  Ultimately, however, the Tribunal did not consider it necessary to make any finding in relation to credibility regarding the issuance of the fatwa.

5. The Tribunal commented further on the fatwa, also at [72], in the following terms:

   The Applicant’s claims that the fatwa has been publicised far and wide in India in the Tribunal’s view stretches credulity, however, and it finds this claim not to be credible, even if the Applicant’s father does lecture in many locations in India.  It does not accept as credible that in a large and populace [sic] country such as India, that it would be possible to publicise a fatwa to the extent that there would be a real chance that the Applicants would face serious harm throughout India as a result of a fatwa relating to a family matter that was issued in Mumbai.

6. Two observations may be made here: first, it is unclear on the reasons provided how or why issues of credibility relate to the Applicants because of the late notification of the issuance of a fatwa in circumstances where the fatwa itself was formally before the Tribunal.  Put another way: the Tribunal seeks to link the credibility of the Applicants with the issuance of the fatwa, in circumstances where there is no challenge that it in fact issued.  Rather, the Tribunal’s concern related to what it said was the Applicant’s late notification of the fatwa, from which the Tribunal drew adverse inferences against the Applicants. 

7. Secondly, nowhere in the reasons does the Tribunal consider the terms of the fatwa itself.  In this regard, I note that the fatwa states specifically that it is/was “being sent to big cities and other religious learning centre [sic] across the country.”  Having failed to consider at all the express terms of the fatwa, nonetheless the Tribunal found that the Applicants could relocate to “another large centre” outside Mumbai.  How such a finding could be made in the absence of consideration of the terms of the fatwa itself was not considered by the Tribunal.

8. I have earlier noted the Tribunal’s finding, at [72], which need not be repeated.

9. However, if the Tribunal has not inquired, or had any evidence in relation to, how fatwas ‘operate’ (so to speak) in India in terms of how and where they are publicised, and the incidence of deaths (and where those deaths have occurred) associated with a fatwa, I have significant difficulty seeing how the Tribunal came to the conclusion it did.  Here, there was no country information before the Tribunal in relation to fatwas in India.  Allowing that a Tribunal has some ‘accumulated’ general expertise and knowledge gleaned from the regular discharge of its responsibilities,[8] nonetheless the reasons are, in my view, at such a level of generality in relation to the treatment of the fatwa as not to disclose adequately or properly the Tribunal’s proper consideration of the risk to these particular applicants.[9]

   [8] See Gleeson CJ in Muin v RRT (2002) 190 ALR 601 at [7] & [24].

   [9] See, for example, the discussion in the joint judgment of Gummow & Hayne JJ in S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 at [73] & [78].

10. Further, having noted, at [45], that posters were made of the couple and put up in thirteen cities in seven states, the Tribunal did not [then or otherwise] address:

    a)The correlation between the posters having been put up and the fatwa being issued;

    b)What the geographical spread or range of the cities entailed;

    c)What the geographical location of the relevant cities and states is;

    d)How many of the thirteen cities are predominantly Muslim (or Sikh);

    e)How many of the seven states are predominantly Muslim (or Sikh);

    f)Whether or not the Applicants were asked details regarding in which states (and/or cities) the posters and fatwa had been issued;

    g)What is the correlation between those seven states and the remaining twenty or so other Indian states;

    h)Why the Tribunal did not consider or seek out country information regarding the prevalence or operation of “fatwas” in India.

11. Respectfully, absent the Tribunal’s knowledge and consideration of any of these factual matters, I have difficulty seeing how the Tribunal came to the conclusion that it did, both in relation to (a) the credibility of the Applicants regarding the wide publication of the fatwa, and (b) how it came to the conclusion, at [77], that “there is no real chance that the Applicants would face persecution for a Convention reason were they to relocate outside Mumbai to another large centre, for example to Calcutta.”

12. Further, in the light of comments by Hayne J in Plaintiff M13/2011 (to which the Tribunal made no reference, nor did it refer to any other relevant decision), which requires a certain level of specificity in relation to country information and consideration of the circumstances of the particular applicant, it is not evident that the Tribunal had any regard to the comments of the High Court in ‘relocation’ cases. I accept readily that it is a Tribunal and not a court. However, it is a specialist tribunal. As it typically does, the Tribunal here referred, at [11], to ‘the usual High Court cases’ it routinely cites regarding the definition of “refugee.” If it so routinely refers (as it does) to High Court authority on such matters, it would be concerning if, on other crucial issues, such as relocation, it did not [here] refer to any authority to guide it.[10]

    [10] In addition to Plaintiff M13/2011 v Minister for Immigration and Citizenship (2011) 277 ALR 667, see also SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18, and SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51, and the comments in those cases on Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437.

1. Also, (and as already noted) there appears to be an internal inconsistency in the Tribunal’s treatment of the fatwa at [72]. On the one hand, the Tribunal says that it has credibility concerns relating to the issuance of a fatwa against the Applicant, “given the late introduction of this claim in the protection visa application process”.  Yet, the Tribunal makes no comment on the veracity or authenticity of the copy of the fatwa provided to it in 2011.  How the Tribunal raises concerns about credibility on the basis of “the issuance of a fatwa against the Applicant”, when it had a copy of the fatwa before it, is unexplained.  This is also to say that the Tribunal appears to have “concerns” about the credibility of the Applicant(s) and the Applicant(s)’ knowledge and/or evidence concerning the fatwa, but instead links credibility with the issuance of it, notwithstanding that it had a copy of it.  Absent any comment on its authenticity, presumably the Tribunal accepted the copy before it; thus its “issuance” was not, formally, an issue.

2. At [73] and [74], the Tribunal raises two further issues in relation to the credibility of the Applicants’ evidence.

3. First, the Tribunal questioned the Applicant Husband’s evidence in relation to the claim that his brother also worked at Mumbai airport, and thereby had access to “immigration information at the airport.”

4. Secondly, in relation to the Wife, the Tribunal questioned the fact that she is said to have not mentioned her family’s active opposition to the marriage until after they learned of it.  The Tribunal stated: “The Tribunal finds that this omission further seriously undermines the Applicants’ credibility”. 

5. Again, by way of comment only, I accept that issues of credibility are pre-eminently matters for the Tribunal.[11]  However, in the light of what is recorded earlier in the reasons, namely that the Applicants only had a fear once they found out that their families knew of their marriage, it is not clear how or otherwise on what basis the Wife’s evidence to this effect ‘further seriously undermines the Applicants’ [plural] credibility.”

   [11] There is abundant authority for such a proposition, including the comments of McHugh J in Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67].

6. At [75], the Tribunal considered (but only in this paragraph) the ‘country information’ and concluded (emphasis added): “Although references are made in relation to interfaith marriages in rural areas, the documentary evidence is clear that they are common in larger centres among students and professionals.”

7. The Tribunal does not specify what particular “documentary evidence” supports such a general conclusion.  Indeed, one of the last ‘entries’ in the ‘documentary evidence’ section of the Tribunal’s reasons refers to a report in November 2005, which is in the following terms (emphasis added):[12]

   According to a professor of Asian Studies who specialises in Indian affairs, inter-religious marriages are more common between students and among professionals in urban areas, and are less likely in rural areas … This professor also commented that marriages between Sikhs and Hindus are “not uncommon” in the state of Punjab, where the majority of Sikhs reside … since Hindus have always numbered prominently there ….

   [12] See CB pp.218-219 (Reasons of the Tribunal at [62]).

8. To note the obvious: the text quoted refers specifically to marriages between Sikh and Hindu, which is not the case here.  Again, absent relevant detail from the Tribunal, the Court has no way of knowing the basis, or the material, upon which it reached the decision it did.

9. Indeed in the country information in the Tribunal’s reasons (styled “documentary evidence”) the references seem almost invariably to be to interfaith marriages between Muslim and Hindu, which is also to say that there are no references to interfaith marriages between Muslim and Sikh.  Further, amongst other reports in the “documentary evidence”, there is a US Department of State 2008 Country Report on Human Rights Practices for India that refers to information in the case of [X], a Muslim who married a Hindu woman from a wealthy Kolkata family who subsequently died in suspicious circumstances, and with alleged police involvement.  In the same “documentary evidence” there is a report which contends that ‘there are innumerable petitions before the Court owing to police inaction’.  Unfortunately, as a matter of process, none of these matters are addressed by the Tribunal.

10. To return to the reasons of the Tribunal, it said, at [76] and [78] that it was prepared to accept that there is a real chance that the Applicants would face harm at the hands of each other’s families were they to return to India and live in the vicinity of either of their families.  I need not repeat the already cited findings of the Tribunal, at [73] of its reasons. 

11. At [78] and [79], the Tribunal referred to the Applicants being well-educated, their ability to adjust to life abroad, that they are multi-lingual, and that they have “an ability to adapt to different locations and to live and work in localities outside of Punjab.”  The Tribunal said that there are “no serious impediments either physically or legally to the Applicants’ relocation within India.”  The Tribunal concluded: “The Tribunal finds that it would be reasonable and in effect practical for the Applicant [sic] to relocate to outside Mumbai or Delhi to Calcutta or another large centre in India given their particular circumstances and possible impacts upon the family members.”

12. For ease of reference, I note that in Plaintiff M13/2011, Hayne J said, at [19] (emphasis added):

    And a place to [emphasis in text] which the plaintiff could relocate was not identified in the delegate’s reasons, beyond the delegate saying that such a place would need to be “in a larger community, such as Kuala Lumpur.”

13. In the current matter, I have already recorded the Tribunal’s conclusion, at [77], which is in strikingly similar terms to those which I have just cited (and highlighted) by Hayne J.  However, for ease of reference, I note [again] that the Tribunal said (emphasis added): “The Tribunal finds that there is no real chance that the applicants would face persecution were they to return to India and to relocate to Calcutta or to another large centre where members of their families do not reside.”  This conclusion was reached without the Tribunal having considered the provenance of the fatwa, or having any country information in relation to interfaith marriages that involved Muslim and Sikh parties.

Legal Principles

1. By way of summary the following principles are the most relevant to, and necessarily must guide, the Court’s consideration of the Tribunal’s decision in the light of the grounds of review raised by the Applicants:

   a)The Court cannot engage in “merits review”;[13]

   b)The Court should not engage in an overly zealous scrutiny of a Tribunal’s decision;[14]

   c)In SZATV and in Plaintiff M13/2011, the High Court has detailed relevant considerations and principle (noted below) in relation to “internal relocation”;[15]

   d)Having regard to the generality of it, Courts should be cautious in the use of and reliance upon country information.[16]

   [13] Attorney-General (NSW) v Quin (1990) 170 CLR 1; Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164. In Waterford v Commonwealth (1987) 163 CLR 54 at [14], Brennan J said: “… a finding on a matter of fact cannot be reviewed on appeal unless the finding is vitiated by an error of law.”

   [14] Wu Shan Liangv Minister for Immigration and Ethnic Affairs (1996) 186 CLR 259.

   [15] SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18; Plaintiff M13/2011 v Minister for Immigration and Citizenship (2011) 277 ALR 667.

   [16] SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [82] (Kirby J).

Consideration

1. Of the wide-ranging and quite imprecisely formulated grounds of review, in my view, the only one that the Court can and should properly entertain relates to the Tribunal’s finding(s), at [77] – [79], that it is reasonable and practical, and that there are “no serious impediments either physically or legally”, for the Applicants to relocate to India.  This finding must also be confined to the Tribunal’s treatment of the fatwa, at [72] of its reasons.[17]  This is also to indicate and confirm that I accept the Minister’s submissions that contentions by the Applicants in relation to lack of police protection in India, and that they would only be able to practice their religious traditions if they did so discreetly, are not made out.[18]

   [17] This issue was raised by the Court at the hearing and supplementary submissions were filed on behalf of the Applicants and the First Respondent.

   [18] I noted at the outset of these reasons that other grounds of review, such as claims in relation to alleged lack of procedural fairness, are unsustainable.  Formally, I should be taken to accept the Minister’s submissions in relation to alleged procedural fairness and delay.

2. In the joint judgment of Gummow and Hayne JJ in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs, at [73] and [78], their Honours said (internal citations omitted; emphasis in original text):[19]

   [73] The objective element [of the Convention definition of “refugee”] requires the decision-maker to decide what may happen if the applicant returns to the country of nationality.   That is an inquiry which requires close consideration of the situation of the particular applicant.

   [78] The central question in any particular case is whether there is a well-founded fear of persecution.  That requires examination of how this applicant may be treated if he or she returns to the country of nationality.  Processes of classification may obscure the essentially individual and fact-specific inquiry which must be made.

   [19] Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473.

3. I stress their Honours’ emphasis on the requirement that there be “examination of how this applicant may be treated if he or she returns to the country of nationality” and “the essentially individual and fact-specific inquiry which must be made.”[20]

   [20] See also the discussion in the plurality judgment of Gummow, Hayne & Crennan JJ (with which Kirby J and Callinan J agreed in separate judgments) in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [9] – [18].

4. More recently, and as already noted, in Plaintiff M13/2011 Hayne J said (emphasis in original text):

   And a place to which the plaintiff could relocate was not identified in the delegate's reasons, beyond the delegate saying that such a place would need to be "in a larger community, such as Kuala Lumpur".

5. At [21] of that judgment, Hayne J said (internal citations omitted):

   Consideration may be given to the possibility of a claimant for protection relocating in the country of origin if relocation is a reasonable (in the sense of practicable) response to the fear of persecution.  As three members of this Court pointed out in SZATV v Minister for Immigration and Citizenship, "[w]hat is 'reasonable', in the sense of 'practicable', must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality".

6. His Honour stated further, at [22] (emphasis added):

   When the delegate's reasons are read as a whole, it is evident that the particular circumstances of the plaintiff were not considered by the delegate in forming the opinion that she could relocate to avoid the risk of persecution.  So much follows from the delegate not knowing from where the plaintiff would have to relocate.  The particular circumstances of the plaintiff not having been considered, the delegate did not correctly identify a question that had to be answered in determining whether there was a real risk of the plaintiff suffering persecution on account of her religious beliefs if she were to return to Malaysia.  By not correctly identifying the relevant question, the delegate made a jurisdictional error.

7. I note [again] that the Tribunal referred to no authority either to guide or to support its decision.  I have already remarked that if the Tribunal can cite High Court authority in relation to the definition of “refugee” it would assist, I suggest, if similar guidance was taken from the always growing jurisprudence of the High Court (and the Federal Court of Australia) in relation to central issues, such as relocation.  This usually occurs; unfortunately, it did not occur in this case.  Indeed, if the Tribunal had informed itself of Hayne J’s comments in Plaintiff M13/2011, in my view, it is [perhaps] more likely than not that, at least from a procedural perspective, there would be little basis for the Applicants to complain.

8. In the light of the authorities to which I have referred, my concern about the Tribunal’s reasons is that, as a matter of process (as opposed to its conclusion), for reasons observed earlier it is unclear how the Tribunal came to the conclusion it did about the Applicants being able to relocate to India “outside Mumbai to another large centre, for example to Calcutta.”  It reached this conclusion without any country information in relation to (a) interfaith marriages involving Muslim and Sikh (and most critically the incidence and or locality of ‘honour [or other] killings’ in relation to these particular interfaith marriages, and the attendant risk for such couples), or (b) fatwas as to their general provenance (including information regarding the means and extent of their promulgation, as well as the means and incidence of their implementation).

9. Given that the particular fatwa in this case, on its face, records that it is “being sent to big cities and other religious learning [centres]”, and the Tribunal not having raised any issue regarding its authenticity or veracity, the Tribunal failed to consider the clear terms of the fatwa.  Nor did it consider (or seemingly ask the Applicants, or seek any information) in relation to the States and cities in India in which it had been circulated.  In such circumstances, it is completely unclear how the Tribunal came to the conclusion (at [72]) that the Applicant’s assertion that the fatwa was widely publicised “stretches credulity” and “finds this claim not to be credible.”

10. In the same place, the Tribunal further concluded:

    It does not accept as credible that in a large and populace [sic] country such as India that it would be possible to publicise a fatwa to the extent that there would be a real chance that the applicants would face serious harm throughout India as a result of a fatwa, relating to a family matter, that was issued in Mumbai.

11. Apart from what appears to be a conclusion to the effect that the Applicants will be reasonably or sufficiently safe because they would become ‘lost’/un-noticed in (or protected by) the crowds of India, the basis and evidence for such a conclusion is not explained.

12. Further, given the High Court’s instruction in Appellant S395/2002 (noted above), the Tribunal failed to consider any of the questions or issues noted at [37] of these reasons that relate to the particular fatwa directed to the Applicant Husband.  Absent knowledge, and consideration, of such matters, which in my view were essential to enable the Tribunal properly to form a view regarding the likelihood (or ‘real chance’) of risk of harm faced by the Applicants, the Tribunal failed properly to consider the Applicants’ claim(s) for protection.

13. In addition to the absence of relevant country (or other) information regarding interfaith marriages between Muslim and Sikh, the Tribunal also failed properly (a) to inform itself (and with no relevant evidence before it),[21] and (b) to consider the fatwa (again in the absence of relevant evidence in relation to fatwas generally, and this fatwa in particular), constituted jurisdictional error. 

    [21] I note that it has long been accepted that proceedings before the Tribunal are inquisitorial, with no “contradictor”, and that there is no general duty on the Tribunal to make its own inquiries in addition to the information that is put before it.  See Abebe v Commonwealth (1999) 197 CLR 510. However, in circumstances where (as here) the Tribunal has before it information that is not directly relevant to the applicants before it – in this case, Muslim and Sikh – and only country information that relates, among other things, to interfaith marriages involving different religious traditions, the lack of relevant evidence, and the risk of the Tribunal being effectively misled by that evidence, seems evident and to be a significant risk.

14. For the reasons given, relief should be granted by way of writs of certiorari and mandamus to bring the record into Court to quash the decision of the Tribunal, and to remit the matter to the Tribunal for [re]consideration according to law.

15. The Applicants should have their costs according to scale.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Neville

Associate: 

Date:  28 June 2013