SZCPF v Minister for Immigration
[2007] FMCA 1859
•9 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCPF & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1859 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error. |
| Migration Act 1958 (Cth), s.474 |
| Minister for Immigration and Multicultural and Indigenous Affairs v VSAFof 2003 [2005] FCAFC 73 |
| First Applicant: | SZCPF |
| Second Applicant: | SZCPG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2992 of 2006 |
| Judgment of: | Emmett FM |
| Hearing date: | 23 October 2006 |
| Date of last submission: | 23 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 9 November 2007 |
REPRESENTATION
| Applicants appearing on their own behalf |
| Counsel for the Respondent: | Mr S. Free |
| Solicitors for the Respondent: | Mr I. Muthalib, Blake Dawson Waldron |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2992 of 2006
| SZCPF |
First Applicant
| SZCPG |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicants are a husband and wife who claim to be entitled to protection visas on the basis of the Applicant wife’s fear of persecution by her in-laws in India and the authorities because she lived with the Applicant husband in India prior to their marriage.
The Applicant husband did not have a separate application for a protection visa. The outcome of his application was dependent on that of the Applicant wife.
The background facts, the claims of the Applicant wife and the review and decision of the Refugee Review Tribunal (“the Tribunal”) are accurately summarised in the written submissions of counsel for the First Respondent, Mr Free, as follows:
“1. The applicants, who are husband and wife, are citizens of India. The applicant husband arrived in Australia on 21 October 1998. The applicant wife arrived on 2 March 2003. The applicant wife, as the sole primary applicant, applied for a Protection (Class XA) visa on 31 March 2003. The applicant husband did not make any independent claim for a protection visa but was included in the application as a member of the family unit of the primary applicant. The application was refused by the Minister’s delegate on 10 July 2003.
2. The applicants applied to the Refugee Review Tribunal (“RRT”) for review of the delegate’s decision in an application received on 31 July 2003. The RRT, in a decision handed down on 7 January 2004, affirmed the delegate’s decision (“first RRT decision”). The applicants sought judicial review of the first RRT decision in the Federal Magistrates Court. On 14 March 2006, the Federal Magistrate Court made orders, with the consent of the parties, quashing the first RRT decision and remitting the matter to the RRT for redetermination according to law.
3. The RRT proceeded to redetermine the application. The applicants appeared at a hearing before the RRT on 12 May 2006. As a result of difficulties with two interpreters on that day, the hearing was suspended and re-scheduled to 31 May 2006, when the hearing was completed with a different interpreter.
4. The claims of the applicant wife were set out in a number of sources, including the protection visa application, a written submission to the RRT before the first hearing, evidence given at the first RRT hearing, written submissions to the RRT as reconstituted and evidence given at the second RRT hearing. The applicant wife’s claims and evidence are summarised in the second RRT decision. The applicant wife claimed that she had a well-founded fear of persecution in India because she had been mistreated, and feared further mistreatment, by her parents-in-law, her local community, her local panchayat (local Muslim council), the Muslim personal law committees, a radical Muslim organisation (the Muslim Bachau Tharik (“MBT”), which was associated with the Student Islamic Organisation (“SIO”)) and the police because of her relationship with her husband (the applicant wife having been accused of improper behaviour by living together before their marriage) and her community activities (involving a Christian group called the World Evangelical Outreach (“WEO”)).
5. At the hearing the applicant husband gave evidence that he personally feared harm from people in his neighbourhood in Hyderabad, because he was perceived as having behaved improperly and immorally by cohabiting with his wife before they were married. The RRT noted that the applicant husband had not previously made any claims to have a well-founded fear of persecution. The applicant husband had not made any formal application to the Minister for a protection visa and so had not been the subject of any decision by the Minister’s delegate. The RRT noted that there was a threshold question as to whether the applicant husband could make a claim for refugee status before the RRT in these circumstances, but nevertheless proceeded to assess whether the applicant husband was a person to whom Australia had protection obligations. The findings of the RRT that the applicants did not have a well-founded fear of persecution, while focused primarily upon the claims and evidence of the applicant wife, applied also to the applicant husband.
6. The RRT, by a decision handed down on 19 September 2006, affirmed the decision of the delegate (“RRT decision”). The RRT accepted some of the evidence of the applicant wife, including that in the period shortly after she married in 1998 her parents-in-law had insulted her, spat at her and threw stones at her, and that she feared being sexually assaulted by “Muslim youths”. However, the RRT found that certain elements of the applicant wife’s claims were considerably exaggerated. The RRT made the following findings:
a. That merely being a Muslim in India does not give rise to a well-founded fear of persecution;
b. That the applicants remained validly married according to Muslim law and that, if they were to return to India, no one could dissolve their marriage against their will. The RRT relied in this regard on evidence which it had sought from a lawyer based in India named Ms Luthra;
c. That to the extent the applicant wife experienced problems with the police in Bombay the RRT was not satisfied that she had been singled out for discriminatory reasons or subjected to any serious harm;
d. That the applicant wife had been criticised by some members of her local Muslim community and sent home by a police officer for having done welfare-related work with a Christian NGO, but that the RRT was satisfied that police had no further interest in her;
e. That the applicant wife had not been subjected to any persecution for reason of her membership or perceived membership of a particular social group. The RRT found in this regard that the behaviour of both the applicant wife and her husband, including the failure of the applicants to produce references to any such problems in correspondence between them, was consistent with a perception that the applicant wife was not at risk of any serious harm;
f. That, if the applicants were to return to Hyderabad, it was highly unlikely that any further serious allegations would be made about their marriage or the applicant wife’s general propriety and there was no reliable evidence to indicate that the applicant husband’s parents, members of the local panchayat or conservative Muslims in the locality would subject the applicants to serious harm. The RRT was not satisfied that the local panchayat members could harness a panchayat network to harm the applicants elsewhere in India or would be motivated to do so;
g. The RRT was not satisfied that the applicant wife was at any risk of harm from members of the SIO, which was associated with the MBT, as there was nothing to indicate that the applicant wife was of any current adverse interest to the SIO;
h. The RRT was satisfied that the applicant wife could work freely in the non-government sector, without facing a real chance of any Convention-related persecution, and
i. There was no reliable evidence before the RRT that Muslim fanatics might harm either of the applicants if they were to return to India.
7. On the basis of these findings, the RRT concluded that the applicants did not have a well-founded fear of Convention-related persecution in India.
8. By an application filed in the Federal Magistrates Court on 16 October 2006, the applicants sought judicial review of the RRT decision. On 27 February 2007, the applicants filed an amended application.”
On 16 October 2006, the Applicant wife filed an application seeking judicial review of the Tribunal’s decision. The application was in the name of both of the husband and the wife.
The Applicant wife appeared before this Court unrepresented although had the assistance of an interpreter. The Applicant wife confirmed that she was representing both herself and her husband and that the husband did not claim to be a refugee. She confirmed that, to the extent that he had sought protection, it was dependent solely on her entitlement to a protection visa.
The Applicant wife confirmed that she relied upon an amended application filed on the 27 February 2007. The grounds of the amended application are as follows:
“1. Tribunal unreasonably failed to understand that I tried to relocate to another part of India but failed to lead a life without persecution, further failed to consider that my parents taken me to other parts of India to save my life.
2. RRT overlooked the MRT decision of husband (submitted file at the time of hearing) which was not considered by DIMA and RRT didn’t considered.
3. RRT ignore the current situation of my social and economical hardships being a Sunni Muslim woman against the Sunni strict customary laws and the authorities.
4. Tribunal ignore the fact that I can’t rely on my husband even the lawyer from Delhi stated that.
5. RRT ignored the facts of fatwa issued over the marriage, and the marriage already dissolved.
6. The lawyer from Delhi failed to provided complete information to RRT about the Sunni Muslim laws, as Indian Muslim has no uniform civil code, that is equal law to Muslim woman.
7. The lawyer from Delhi gave her general view and RRT failed to have complete information about Sunni Muslim laws.
8. The lawyer failed to provide the facts that court and the authorities doesn’t interfere the Muslim religious laws.
9. Tribunal says I did not get killed while staying in India, its means I have to get killed and made me nervous, mentally upset the rest of the hearing.
10. Tribunal fail to understand about the police checks how the ordinary people now and then picked up and locked up tortured harassed by the police merely saying for security reasons.
11. Tribunal member fail to understand that my family could face such situation by the authorities.
12. Tribunal Member fail to understand that Indian Law does not interfere in the Sunny Muslim religious customary laws and Fatwa’s and the couple had to stay in the Indian community and face the terrible consequences.
13. Tribunal completely ignored the fact of being a defame Sunni Muslim couple had to live peacefully among the Muslim community.
14. Tribunal fail to understand the difference of English education does not save the life of Sunni Muslim couple against the Sunni Muslim religious customary law.
15. The lawyer from Delhi, India had not stated about the Sunni Muslims customary laws.
16. Tribunal failed to obtain the information about the Sunni Muslim religious customary laws.
17. Tribunal ignored the risk factors that are conventional related the couple has to live in the Indian community after accepting the Sunni Muslim laws to avoid harassment, threats, kidnapping fear of rape from the hooligans, thugs and fear of getting killed.”
The Applicant wife was invited by the Court to make whatever submissions she wished in support of the grounds identified in her amended application and in respect of her application generally.
Counsel for the First Respondent made comprehensive submissions in respect of the paragraphs identified by the Applicant wife in her amended application. They are set out in an articulate, clear and accurate manner. The Court adopts the submissions prepared by counsel for the First Respondent as the reasons why the amended application does not disclose any jurisdictional error. Those submissions are as follows:
“It is respectfully submitted that the amended application filed on 27 February 2007 is largely misconceived. Many of the grounds in the amended application do not contain any proper allegation of jurisdictional error on the part of the RRT, but instead challenge the merits of the RRT’s findings on the facts. It is well settled that it is not the function of a court on an application for judicial review to reconsider the merits of the RRT’s decision on the facts or to itself engage in fact-finding relating to the applicant’s claims: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]. It is not appropriate for the applicant to seek to add new evidence or explanations about the factual dispute which was before the RRT. The question before the Federal Magistrates Court is whether the RRT fell into jurisdictional error by making a legal error of principle or procedure in the way in which it dealt with the application.
In light of those general observations, the first respondent makes the following submissions in response to the grounds set out in the amended application, adopting the numbering used in the amended application:
(1)Paragraph 1 contains a complaint that the RRT unreasonably failed to understand that the applicant had unsuccessfully tried to relocate. This ground is not supported by the facts. The RRT noted the applicant’s evidence about having relocated to other parts of India and there is nothing to suggest that the RRT failed to take this evidence into account. The applicants’ real complaint in ground 1 appears to be that the RRT did not attach enough weight to the applicant’s evidence about having relocated to other parts of India. If so, this is not a sound allegation of jurisdictional error. The RRT properly assessed the applicant wife’s evidence and claims but concluded that the applicant wife had exaggerated certain aspects of her story and as a result of this and other findings the RRT was not satisfied that the applicant had a well-founded fear of persecution.
(2)Paragraph 2 contains a complaint that the RRT overlooked the MRT decision relating to the applicant husband. There is no explanation of how the MRT decision had any bearing on the matters before the RRT and why the RRT was obliged to have regard to such material. In the circumstances, there does not appear to be any substance to the complaint raised in paragraph 2.
(3)Paragraph 3 contains a complaint that the RRT ignored the social and economic hardships facing Sunni Muslim women. In the claims before the RRT, the applicant claimed to have a well-founded fear of certain people and groups, including Muslim groups, because of her particular circumstances. The applicant did not claim to have a fear of harm based on the position generally of Sunni Muslim women, whether in terms of economic and social hardship or otherwise, and such a claim did not arise on the basis of the claims and evidence that were put before the RRT. In the circumstances the RRT was under no obligation to consider the general question of whether Sunni Muslim women as a group have a well-founded fear of persecution. In any case, the RRT did consider the position of Muslims generally in India and gave close consideration to the position of the applicant wife within a Muslim community;
(4)Paragraph 4 of the amended application contains a complaint that the RRT ignored the fact that the applicant wife cannot rely on her husband. It is not clear what relevance this contention has to the RRT’s reasoning and conclusions. The RRT, in concluding that the applicant wife did not have a well-founded fear of persecution, did not place any particular reliance on the notion that the applicant wife could rely on her husband. To the extent that the RRT relied on the principle that a valid marriage cannot be dissolved unless the husband, at least, wishes it to be dissolved, this was an appropriate basis for determining the applicant wife’s claim that she feared that her marriage could be dissolved against the will of the applicant wife and her husband.
(5)Paragraph 5 of the amended application is factually unfounded. The RRT did consider the legal status of the marriage, including the relevance of the fatwa and the applicant wife’s claim that the marriage had already been dissolved. The RRT concluded, with reference to evidence obtained from a lawyer in India which took into account these matters, that the marriage was valid and could not be dissolved against the will of the applicant wife and her husband.
(6)Paragraph 6 of the amended application involves an attempt to cavil with the correctness and/or completeness of the evidence provided to the RRT by the Indian lawyer, Ms Luthra. This is not a proper basis for alleging jurisdictional error. Even if the evidence provided by the Indian lawyer was incomplete or contestable in the ways alleged by the applicants, this would not demonstrate jurisdictional error on the part of the RRT. It was open to the RRT to get any information that it considered relevant (s. 424 of the Migration Act), including by obtaining the evidence in question from Ms Luthra. To the extent that the obtaining of this information then triggered obligations to consider the information (s. 424(1)) and give the applicant written notice of the information (s. 424A), the RRT complied with these obligations. The RRT was not under any obligation in the circumstances to obtain the additional information that the applicants now refer to in paragraph 6 of the amended application.
(7)Paragraph 7 of the amended application suffers from the same defect as paragraph 6 and must fail for the same reasons.
(8)Paragraph 8 of the amended application suffers from the same defect as paragraph 6 and must fail for the same reasons.
(9)Paragraph 9 of the amended application contains a complaint about the RRT having referred to the fact that the applicant wife had not been killed in India, with the apparent suggestion that the applicant could not show she had a well-founded fear unless she had been killed. This is apparently a complaint about a comment made by the RRT at the hearing, there being no such reference or suggestion in the RRT’s reasons. If the complaint is indeed about a comment made at the hearing, there is no proper evidentiary basis to assess this complaint as the transcript of the hearing is not in evidence. In any case, it is not apparent how a comment by the RRT (which would need to be assessed in its proper context) could demonstrate jurisdictional error;
(10)Paragraph 10 of the amended application contains a complaint about the RRT’s assessment of police checks in India. Having regard to the claims and evidence of the applicants as set out in the RRT’s reasons, it is not apparent that this contention (that ordinary people are picked up, detained and tortured by police) was part of the claims that were put before the RRT. In the circumstances, there is nothing to suggest that the RRT was bound to assess this claim. The RRT did consider whether the applicant wife had been subject to discriminatory treatment for Convention reasons constituting serious harm by the police, but concluded that she had not been. As this finding demonstrates, the RRT discharged its duty of considering the claims and evidence that were put before it.
(11)Paragraph 11 of the amended application is effectively a restatement of paragraph 10 and must fail for the same reasons.
(12)Paragraph 12 of the amended application constitutes a further attempt to challenge the RRT’s findings on the facts regarding the status of the applicants’ marriage and the effect of Muslim laws. As noted above, in relation to paragraphs 5 and 6, the RRT made findings of fact on these matters based on the evidence before it. The contention that the RRT “failed to understand” certain matters is not a proper basis for alleging jurisdictional error and must fail.
(13)Paragraph 13 of the amended application suffers from the same defect of seeking merits review of the RRT’s findings on the facts, without identifying any error of principle or procedure that could be said to constitute jurisdictional error. The reasons for decision indicate that the RRT appreciated that the applicants’ claimed to fear persecution in the Muslim community in India because of the past gossip and criticism of their perceived impropriety. The reasons further indicate that the RRT discharged its duty by assessing this claim against the evidence that was before the RRT to determine whether the applicants had a well-founded fear of serious harm for a Convention reason.
(14)Paragraph 14 must fail for the same reasons as paragraph 13, in that the applicants seek to overturn the RRT’s findings on the facts without identifying any error of principle or procedure that could be said to constitute jurisdictional error.
(15)Paragraph 15 of the amended application suffers from the same defect as paragraph 6 and must fail for the same reasons.
(16)Paragraph 16 of the amended application suffers from the same defect as paragraph 6 and must fail for the same reasons. Paragraph 16 also wrongly assumes that the RRT was under an obligation to obtain additional information. Where the RRT is unable to satisfy itself on the material available that an applicant for review has a well-founded fear of persecution for a Convention reason, the RRT is not subject to any general obligation to make further inquiries of its own: Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]-[24] per curiam.
(17)Paragraph 17 of the amended application suffers from the same defect as paragraphs 12 and 13 and must fail for the same reasons.
For these reasons, the amended application must fail. There is nothing to suggest that, leaving aside the issues raised in the amended application, the RRT fell into jurisdictional error.
It may be observed that, to the extent that the applicant husband effectively sought to claim refugee status at the RRT hearing, this was not a matter that was properly before the RRT. The applicant husband had not made any application to the Minister for a protection visa and had therefore not been the subject of a decision to refuse to grant a protection visa. In respect of the applicant husband there was no “RRT-reviewable decision” before the RRT, within the meaning of s. 411(1) of the Migration Act. The RRT was therefore not required to consider the claims of the applicant husband, to the extent that they were put forward as constituting a separate claim for refugee status. The RRT, having noted that there was a question as to whether the claims of the applicant husband were properly in issue before it, did proceed to express its views about whether the applicant husband had a well-founded fear of persecution. As the RRT concluded that the applicant did not have a well-founded fear of persecution, there is no need to disturb the RRT’s findings in this regard. The important point is that the RRT did properly determine the application that was before it (ie the application brought by the applicant wife as primary applicant) and no jurisdictional error has been identified which would justify disturbing that decision.”
The Applicant wife made no meaningful submission in support of any of the paragraphs referred to in her amended application as disclosing any error capable of review by this Court. It is plain that the amended application is a disagreement with the findings and conclusions of the Tribunal and therefore seeks merits review which this Court cannot undertake.
To the extent that the amended application refers to the Tribunal’s failure to obtain independent information, as stated in the written submissions quoted above, there is no such obligation on the Tribunal to do so and its failure to do so does not constitute jurisdictional error.
The Tribunal otherwise complied with its statutory obligations in the making of its decision, including the conduct of its review. The Tribunal identified with specificity the claims made by the Applicant wife and her oral evidence. The Tribunal also identified various concerns it had about the evidence of the Applicant wife and noted her responses. The Tribunal noted the Applicant wife’s evidence both in the earlier constituted Tribunal hearing as well as before the Tribunal hearing the subject of this review.
In accordance with independent country information, the Tribunal found that being a Muslim in India did not give rise to a well-founded fear of persecution by itself and that the Applicant wife did not have a well-founded fear of persecution for a Convention reason by reason of her religion.
The Tribunal did not accept the Applicant’s claims of a threat of serious harm and was not satisfied that she was singled out by police for discriminatory reasons such as her religion, her membership of a particular social group or any political opinion that may be imputed to her.
The Tribunal found that the police had no further interest in the Applicant wife.
Ultimately the Tribunal found that any fear the Applicant wife may have was not well-founded.
The findings and conclusions made by the Tribunal were open to it on the evidence and material before it and for which it provided reasons.
The decision of the Tribunal is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Migration Act 1958 (Cth) this Court has no further jurisdiction to interfere.
The proceeding before this Court commenced by way of application filed on 16 October 2006 is dismissed.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 31 October 2007
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