S1570 of 2003 v Minister for Immigration
[2006] FMCA 782
•30 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1570 OF 2003 v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 782 |
| MIGRATION – Review of RRT decision − where applicants in intercaste marriage − whether Tribunal considered correct definition of persecution − whether Tribunal adequately considered claims of persecution in past − where Tribunal did not consider fear to be serious enough to amount to fear of persecution − where Tribunal considered convention-related ground to be one of religion − whether correct convention ground of religion or social group in categorisation of intercaste marriage − whether tribunal failed to adequately consider claim of lack of state protection. |
| Migration Act 1958, s.36 |
| Applicant WAEE v Minister for Immigration [2003] FCAFC 184 SZAFJ v Minister for Immigration [2004] FCA 291 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Minister for Immigration v Wu & Ors (1996) 41 ALD 1 NABE v Minister for Immigration (No 2) [2004] FCAFC 263 |
| Applicant: | APPLICANTS S1570 OF 2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG793 of 2004 |
| Judgment of: | Raphael FM |
| Hearing date: | 25 May 2006 |
| Date of Last Submission: | 25 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 30 June 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Wright Stell Lawyers |
| Counsel for the Respondents: | Ms R Henderson |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $5000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG793 of 2004
| APPLICANTS S1570 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicants are citizens of Nepal. They arrived in Australia in November 1996. On 6 December 1996 they lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. On 22 May 1997 a delegate of the Minister refused to grant a protection visa and on 24 June 1997 the applicants sought review of that decision from the Refugee Review Tribunal. The applicants attended a hearing before the Tribunal on 23 September 1998 where they called a witness to give evidence concerning intercaste marriages in Nepal. On 25 September 1998 the Tribunal determined to affirm the decision of the delegate not to grant a protection visa.
The applicants are husband and wife. They married in July 1996 without the blessing of the husband’s family. The wife is a divorcee. She said she belongs to the Gurung caste. The husband belongs to the Vaishya caste and to the Newar community. The Gurung caste is not accepted by the Newars. In the male applicant’s statement [CB 26] he says:
“I had to suffer religious persecution as me and my wife were mistreated, harassed and threatened on numerous occasions as they perceived us as a religious criminal and we were victimized a lot and our so called social crime was our intercaste marriage.
I belong to a Newar community and Newars are mostly found in the business field… and in the question of tradition, they are very strict, conservative, orthodox and fanatical in their dealing and approaches towards people of other castes and communities…
In July 1996 we were married which was disclosed to our society and since then we were subjected constant harassment and ill treatment from both Gurung and Newars community people. We were constantly threatened and lynched by both communities. Due to our marriage we were classified as outcastes and more so treated like untouchables and faced verbal and physical taunts from the community elders, relatives, family members and friends and we were forced to leave our family house and seek shelter in other part of the country. Though we spent few weeks in peace the local communities came to know our whereabouts and they started harassing us and chased us out of the town.”
The delegate in her reasons for decision commences:
“I do not accept that the convention ground in this case is religion. However, I accept that caste is a particular social group in Nepal and the applicant’s claims can be considered under this convention ground.”
The Tribunal commences its decision under the heading “Claims and Evidence” with the following statement:
“The applicant claims fear of persecution in Nepal on the Convention related grounds of religion.
The applicant husband is of a higher caste than the applicant wife and they claim their families are opposed to their union.”
The claims and evidence noted by the Tribunal concerning the alleged persecution is as follows:
“The applicants were married without informing their families in July 1996. They initially lived within five minutes’ walking distance of the Applicant husband’s family in Kathmandu. A few weeks later, they moved to a location about an hour’s walk from his parents. The applicant husband took the applicant wife to meet his parents after the wedding and they criticised and spat at him. The Applicant husband subsequently visited his parents on his own and received verbal threats and abuse from them. He claims that after the wedding his wife once visited her mother some 200km away. She claims she never saw her mother but met with her uncle who was angry with her and threatened her.
The applicants rented their home in Kathmandu. The applicant husband had a job with a bank in the city.
The applicants claim that about a month after the wedding, some of the Applicant husband’s cousins came to their home and broke windows and threatened the applicant wife with death if she did not leave the applicant husband. She did not leave him and neither of them died in the four months preceding their departure from Nepal.
Neither applicant went to the police, or sought any community or state protection, not even about the harassment or threats from their cousins. They said that this was because it was a family matter in which the police would take no interest. They claim that gossip spreads quickly and that even the community avoids and scorns them.
The witness indicated that although intercaste marriages are increasingly more common and less controversial in Nepal, it can be different if the families of the couple concerned are of particular castes or are particularly orthodox. The Applicants’ claim that the applicant husband’s family is particularly orthodox.
The applicants claim that the harm and threats reached an apex one month after they were married. They said the threats and harassment were repeated on occasions after that, even though they themselves did not change their status in the eyes of their families.
The Applicants claim the harm they fear is Convention-related because they are seen as religious criminals by their families and by traditionally Hindu Nepalese society at large.”
The findings and reasons of the Tribunal are short. They are set out in full below.
“The Tribunal accepts that more orthodox Hindu families in Nepal may still have trouble accepting intercaste marriages whatever the law says. However, the particularly small source of the harassment in this case, and the apparent lightness of its degree, taking into account the apparent emptiness of the claimed death threats, leads the Tribunal to conclude that it cannot find evidence indicating a real chance of the Applicants facing anything amounting to persecution in the event of returning to Nepal.
It remains open to the applicants to bring the matter to the attention of the police in the event that it were to become more serious. At a time when, especially in the case of the applicant wife, no passport or ticket out of Nepal were in sight at least until September 1996, then resort to state protection should have been the only resort available to the applicants; it is reasonable to assume if they did not seriously entertain seeking outside help, or fleeing Kathmandu altogether, that the danger they faced at that time was not particularly serious even when it was threatened.
Having ruled out persecution as a factor in this case, the Tribunal need not go on. However, it wishes also to record in this instance that it found no evidence of the claimed persecution in this case being perpetrated or threatened “for reasons of…religion”.
Essentially, the applicant wife is being pressed unreasonably to desert or divorce her husband. Meanwhile, the Tribunal notes, she is already a divorcee. Divorce does not appear from her claims to be anathema to her. It should, of course, be a matter of choice. The act to which she is pressed is not a matter of faith in her religion but of faith towards her husband. The threats appear unpleasant, course and unjustified, but do not, on any evidence before the Tribunal, place the applicants in a religious dilemma.
The religion of the applicants is not the issue here, but the act on their part, personally distasteful to their families, of having married across ancient prejudicial boundaries. The act of marrying is the causal factor here, not the religion; take it away and there is no evidence of the families, or anyone else in Nepal, wishing to persecute either of the two applicants. Recalling that one simple act would save the applicant wife from the harm (apparently emptily) threatened upon her, the act demanded of her has nothing to do with embracing or renouncing a belief or profession of religious faith, but merely (though unreasonably) with renouncing her claim on a person in whom the owners of the threat have some personal interest or bias.
Therefore it is not correct to say that the harm indicated is threatened for reasons of religion.
Having considered this, the Tribunal could proceed immediately to a decision, but it will also address the “real chance” question on its own. The apparent emptiness of the threats up to the time of the applicants’ departure, taken into consideration with their having stayed where they lived for so long before leaving Nepal, leads the Tribunal to conclude that the persons doing the threatening are held back by either their sense of the law or their better judgment or some other factor. This leads the Tribunal to conclude that even if there were evidence of persecution up to the present, and there is not, and even if it were Convention-related, which it is not, there is no evidence of a real chance of the more serious level of harm, “death”, being perpetrated upon them in future, since it was not perpetrated even after the applicants failed to comply with the threats over the four months before they departed Nepal.
The Tribunal duly considered the witness’ evidence, which was helpful in indicating the difference between individual families’ attitudes in Nepal. It supports the Tribunal’s conclusion as to the individuality of the problem before it in this case.
Taking all of the evidence into account, the Tribunal is therefore satisfied that the applicants do not face a real chance of Convention-related persecution in Nepal. They are not refugees.
CONCLUSION
Having considered the evidence as a whole, the Tribunal is not satisfied that the applicants are persons to whom Australia has protection obligations under the Convention. Therefore the applicants do not satisfy the criterion set out in s.36(2) of the Act for protection visas.”
The applicants filed in court an amended application for review setting out three allegations of jurisdictional error on the part of the Tribunal:
“1. The Tribunal committed jurisdictional error by failing to consider according to law whether the applicants had faced persecution in the past.
Particulars
(a) The Tribunal misdirected itself as to the meaning of the term “persecution” by failing to consider that serious harm other than death could be persecutory.
Alternatively,
(b) The Tribunal failed to consider the claim of persecution that was in fact made by the applicants, that in addition to attacking the marital home the husband’s family had engaged in constant, rather than occasional, harassment of the applicant wife, and had attempted to hit her.
2. The Tribunal committed jurisdictional error by drawing a false dichotomy between the applicants’ marriage outside their respective castes, and the traditions of Nepalese Hinduism which they had transgressed by so marrying.
3. If relevant, the Tribunal committed jurisdictional error in its treatment of the issue of state protection, in that it failed to ask itself relevant questions.
Particulars
(a) Whether the Nepalese authorities were willing and able to provide the necessary degree of protection to the applicants.
(b) Whether the applicants could justify their unwillingness to seek state protection.”
The persecution issue
The first point made by the applicant is that the Tribunal appeared from the use of the words “Taking into account the apparent emptiness of the claimed death threats” to be saying that persecution could only arise if a death had occurred. I cannot accept this. Given the definition of persecution set out by the Tribunal at [CB 75] which refers specifically to “threat of harm” I am satisfied that the Tribunal accepted that threat could constitute persecution. The Tribunal appears to have been satisfied that the death threats were made and then came to a conclusion about the seriousness with which they were made for the purposes of deciding whether or not they constituted serious harm. This assessment is one of the prime duties of the Tribunal. Provided there is some evidence upon which to base that assessment (and that includes lack of evidence where the assessment is negative) a court cannot interfere with a Tribunal’s decision on this type of matter: as per French, Sackville & Hely JJ in Applicant WAEE v Minister for Immigration [2003] FCAFC 184 at [45]-[47]; as per Tamberlin J in SZAFJ v Minister for Immigration [2004] FCA 291 at [34]. The applicant argues that when making the assessment the Tribunal failed to consider certain evidence. They argued that the Tribunal had missed the claims of attempted assault and continual harassment which they argue is a failure to deal with the claim that was put as opposed to failure to consider some evidence in relation to the claim. In particular they argue that the Tribunal does not refer to the attempted assault by the husband’s relatives on the wife and continual harassment. The relevant part of the Tribunal’s decision is the paragraph which states:
“The applicants’ claim that the harm and threats reached an apex one month after they were married. They said the threats and harassment were repeated on occasions after that, even though they themselves did not change their status in the eyes of their families.”
To my mind this paragraph does encompass the evidence cited a few paragraphs above that the applicants’ cousins came to their home and broke windows and threatened the wife. I also think that it would be looking at the reasons “with an eye keenly attuned to the perception of error” (Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at [9]; as per Brennan J in Minister for Immigration v Wu & Ors (1996) 41 ALD 1 at p.9) to say that the words “repeated on occasions” referred to occasional threats rather than repeated ones. I am unable to say that the Tribunal fell into jurisdictional error in relation to the persecution issue.
The transcript reveals a discussion between the male applicant and the Tribunal concerning the alleged persecution. At [T9] there is the following exchange:
“MA: My parents didn’t come themselves but they send my first cousin, my paternal uncle’s son. I was working in the office there. When I went to my office my wife used to be at home. They would usually threaten her.
T: Who threatened her?
MA:My cousins, my paternal uncle’s sons. When I was in office the whole day they would mentally torture her. They kept telling her that either you people separate or you would lose, at least one of you would lose the other person, one of you would be dead.”
At the conclusion of her submissions Counsel for the respondent Minister made what I considered to be a very telling point. She said that if you read the transcript carefully there was every reason to support the Tribunal’s view about the seriousness of the alleged persecution and the well foundedness of the applicants’ fear. She said that in the end the evidence was that notwithstanding the alleged threats the male applicant went to the office everyday and left his wife at home.
The false dichotomy issue
The applicants submit that the Tribunal erred when it argued that the religion of the applicants was not the matter in issue, it was the act of having married across ancient and prejudicial boundaries. Although I accept that it is the act of marriage which brought about the feared persecution, the persecution (such as it was) was visited upon the applicants because they were perceived to have broken religious taboos. I would find it difficult to distinguish between an intercaste marriage and an interfaith marriage when considering whether a family’s reaction to the marriage falls within the convention definition of religion. I think that the better description of intercaste marriage is marriage between two persons of different social groups, but that would not to my mind alter the situation. It is the offending against ancient prejudices held by the persecutors that instigates the persecutory conduct. The conduct was aimed at the female applicant because she was of a different social group to the male applicant by the male applicant’s family. The conduct was aimed at the male applicant by the relations of the female applicant because he was of a different social group to them. I think that in this regard the Tribunal did fall into jurisdictional error. But as I have already found that the Tribunal’s decision on the entirely independent heading of persecution cannot be impugned this finding of jurisdictional error cannot benefit the applicants.
State protection issue
The applicants did not seek state protection whilst they remained in Nepal. State protection is mentioned in the second paragraph of the Tribunal’s findings and reasons extracted above. There is also a short paragraph in the transcript at T8:
“T: What sort of threats
MA:Every time they pressure me to leave my wife. They also threaten that if don’t leave my wife they will harm me or my wife, all the time I was under such threat.
T:That’s criminal. Can’t you go to the police? The police have constitutional power to protect people from discrimination according to caste?
MA:Police this is family thing and police actually cannot support you or protect you from everything there.
T: Did you ever try?
MA: No, I never tried.
T:Is it fair to say that it was never serious enough to ring for the police?
MA:No, that is not true. This is very serious. It depends on the circumstances and place. Especially when you are in Nepal. I belonged to a divided family.”
The Tribunal has utilised the evidence concerning state protection to come to its conclusion about the degree of persecution claimed. Probably because of the views it came to concerning persecution it did not address specifically the issue of state protection. One can infer, however, that the Tribunal was not satisfied that the applicants were justifiably unwilling to avail themselves of the protection of their country of nationality in respect of the persecution claimed. It was for the applicants to satisfy the Tribunal that notwithstanding the constitutional right to protection against discrimination according to caste, no such protection would be given. It is to be inferred that the Tribunal was not so satisfied. There is nothing in the independent country information produced by the Tribunal which indicates that the state would not enforce the constitutional rights of parties. In NABE v Minister for Immigration (No 2) [2004] FCAFC 263 at [63] the Full Bench said:
“[63] It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be ‘subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected’ – Applicant WAEE (at 641 [47]).”
To my mind the raising by the Tribunal of the issue of state protection was sufficient to avoid the Tribunal falling into the error adumbrated above.
Although I have found a jurisdictional error on the part of the Tribunal in relation to the marriage issue which the Tribunal wrongly considered not to be a convention based matter, I am satisfied that the findings of the Tribunal in relaton to persecution are such that they provide an independent ground for declining to provide the applicants with Australia’s protection. The application must therefore fail and be dismissed. I order that the applicants pay the respondent’s costs which I assess in the sum of $5,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM.
Associate:
Date:
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