SZCWJ v Minister for Immigration & Multicultural Affairs

[2006] FCA 1014

FEDERAL COURT OF AUSTRALIA

SZCWJ v Minister for Immigration & Multicultural Affairs [2006] FCA 1014

SZCWJ & ORS v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS & ANOR

NSD 778 OF 2006

EMMETT J
31 JULY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 778 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZCWJ
First Appellant

SZCWK
Second Appellant

SZCWL
Third Appellant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	31 JULY 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.the appeal be dismissed,

2.the first and second appellants pay the first respondent's costs of the appeal.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 778 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZCWJ
First Appellant

SZCWK
Second Appellant

SZCWL
Third Appellant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE:	31 JULY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I have before me an appeal from orders of the Federal Magistrates Court dismissing an application for judicial review in respect of a decision of the second respondent, the Refugee Review Tribunal (‘the Tribunal’).  The appellants are husband and wife and their infant child.  They are citizens of India, who arrived in Australia on 3 May 2003 on visitors’ visas that expired on 3 June 2003.  On 24 June 2003 they lodged applications for protection (Class XA) visas under the Migration Act 1958 (Cth). On 8 August 2003, a delegate of the first respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant protection visas. On 28 August 2003, the appellants applied to the Tribunal for review of that decision.

2. On 19 February 2004, the Tribunal handed down reasons for its decision, made on 29 January 2004, affirming the decision not to grant protection visas.  The appellants then commenced a proceeding in the Federal Magistrates Court on 5 March 2004, seeking Constitutional writ relief in respect of the Tribunal’s decision.  An amended application was filed on 20 October 2004.  The matter was fixed for hearing before the Federal Magistrates Court on 7 April 2006, when a further amended application was filed.  Following a hearing on 7 April 2006, the Federal Magistrates Court made orders on that day dismissing the application and ordering the appellants to pay the Minister’s costs in the sum of $5,500. 

3. By notice of appeal, filed on 26 April 2006, the appellants appealed to the Federal Court from the orders of the Federal Magistrates Court.  The notice of appeal is somewhat confused.  It asserts that the Federal Magistrates Court wrongly applied the law to the facts, as found, in relation to the seriousness of harm that constitutes persecution and that, by doing so, the Federal Magistrates Court denied natural justice and therefore committed jurisdictional error.  That assertion is clearly misconceived.  The balance of the notice of appeal repeats, verbatim, particulars of the grounds stated in the amended application of 7 April 2006.  The Minister had indicated that she is content for the notice of appeal to be dealt with on the basis that the appellants assert that the Federal Magistrates Court erred in failing to uphold the application on the grounds pleaded in the amended application. 

4. The grounds of the amended application were as follows:

   ‘1.       The Tribunal denied the Application [sic] natural justice.

   Particulars

   (a)(i)     The Tribunal “(had) before it the Department’s file, which includes the protection visa application and the delegate’s decision record.  The Tribunal also had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources”.

   (ii)The Tribunal did not tell the Applicants what all this material was nor give the Applicant a proper opportunity to respond to it.

   (b)The Tribunal misrepresented or misunderstood the Applicants’ claims and, therefore, did not assess the totality of the claims.

   (i)The Tribunal said “In particular they claim that the animosity and harm experienced by them from her family is because of race or religion.”

   (ii)The Applicants had also put their claim on the basis of their membership of a social group (caste).

   2.The Tribunal failed to apply the correct test:

   (a)The Tribunal failed to consider whether the Applicants suffered persecution due to their membership of a particular social group.

   (b)The Tribunal failed to consider whether the State’s inability to protect the Applicants from harm for a non-convention reason amounted to persecution by the State for a convention reason.’

5. At the hearing, the appellants, were not represented by legal advisers, although they had the assistance of an interpreter.  They made no effort before me to support the grounds set out in the amended application and, which were repeated in the notice of appeal. 

6. In oral submissions, the appellant wife, on behalf of the appellants, made two assertions.  The first is that the appellants were not given the opportunity to say what they wanted to say before the Tribunal.  The second is that they wanted to get documents but were not given the opportunity to do so. 

7. The Minister’s solicitor, who appeared before the Federal Magistrates Court, informed the Court that notes made by him at the hearing indicate that mention was made of documents before the Federal Magistrates Court.  The Federal Magistrates Court was told that there were documents in India, which the appellants wished to obtain, that would corroborate the assertions that they had made to the Minister's delegate and the Tribunal.  However, it was not suggested that the Tribunal was told that the documents were then available.  Rather the Tribunal was told that the appellants were unable to get documents from India at that time. 

8. The Minister’s solicitor also informed the Court that his notes suggested that the appellants had complained to the Federal Magistrates Court that the Tribunal gave no answers to their questions about the future of their child.  Clearly, there is no obligation on the part of the Tribunal to answer questions. 

9. Neither of the matters mentioned orally to me today suggest any jurisdictional error on the part of the Tribunal.  Although the appellants did not seek to support the grounds dealt with by the Federal Magistrates Court, which are specified in the notice of appeal, I shall say something about them.  Before doing so, however, it is desirable to say something about the claims before the Tribunal and the Tribunal's reasons. 

10. Claims were made to the delegate and repeated in the application for review by the Tribunal.  The appellant husband claimed that he and his cousin's sister decided to open a bakery business in Balanagar.  The business was running smoothly until he fell in love with the appellant wife, whose father was a radar operator in the air force.  The claim was that their families came to know of their affair and both tried to separate them.  However, despite family opposition they married. 

11. The appellants asserted that the appellant wife has four brothers, two of whom are solicitors, who have political connections.  They claimed that the husband’s bakery was attacked and that they were beaten.  They also claimed that there was a kidnap case against the appellant husband and that he was taken into custody. 

12. The appellants also claimed that, after they had married, there was an attempt to harm them when they were walking in a garden.  A gang came to their bakery, destroyed some of the furniture, beat them, and they were hospitalised.  They claimed that the appellant wife’s family have said that they want nothing to do with them, as they have brought shame on their house and community.  They said that the wife’s family have said that they will accept the husband if he listens to their religion.  They say that they have different religions, one being Gujarati and the other Punjabi and that there is much difference between them. 

13. The Tribunal records that, at the hearing before it, when the appellants were assisted by an interpreter, most of the evidence was given by the appellant wife.  It was the appellant wife who spoke in the course of the hearing before me.  The Tribunal records that the appellants were asked why, if they feared problems in Hyderabad, they returned there after their first trip to Bombay.  They said that they returned to Hyderabad because the hotel was too expensive in Bombay and they did not know anyone.  The Tribunal suggested to them that returning to the area in which they claimed to fear a problem indicated that, in fact, they had no such fear.  The Tribunal asked them what other problems they had apart from the one related to marriage.  The response was:

    ‘That is the main reason.  They feel that if a girl is married to such a boy they will feel embarrassed.’

14. The Tribunal asked the appellants why, if the wife’s family live in Hyderabad, they could not have moved to another part of India.  The response was that the wife’s brother had a lot of contacts and her father used to have transfers to different parts of India.  The Tribunal also suggested to the appellants that, from what they were telling the Tribunal, it appeared that the dispute was a personal problem arising from a belief by the wife's family that she had married beneath her.  When they were asked again why they could not live in another part of India, the response was that it was because of the wife’s brother, since her father was no longer in the air force. 

15. In response to a question as to whether they had received advice or assistance in lodging their protection visa application, the appellant husband said that he had met someone on a train and told them his story and he was told he should apply for a protection visa.  The appellant wife said that she had gone to an adviser, who had said they could not apply, but they decided to apply anyway. 

16. The Tribunal accepted the appellants are citizens of India.  However, in relation to their claims of fearing harm, the Tribunal did not accept that they had been truthful, and considered that they had fabricated and exaggerated parts of their claims.  The Tribunal gave specific reasons as to why it considered that the appellants were not truthful.  Specifically, mention was made of the inconsistent evidence as to completing the visa applications and the fact that the appellants were prepared to return to Hyderabad where they say they feared harm. 

17. Despite the Tribunal’s finding that the appellants were not credible witnesses and that they had exaggerated their history and claims, the Tribunal was prepared to accept that the appellant wife’s family were not in agreement with her marriage to the husband, whom they thought was beneath her.  However, the Tribunal did not accept that any of the consequences alleged actually happened and found that those matters had been made up in an attempt to enhance the protection visa application. 

18. However, the Tribunal also referred to two other matters as independent reasons for affirming the delegate’s decision.  First, even if the Tribunal were to accept the other parts of the history concerning problems with the wife’s family, the Tribunal would find that those circumstances would not fall within the Convention definition of a refugee.  The Tribunal considered that the evidence clearly indicated that any animosity and harm experienced from the wife’s family was not because of race and religion.  Rather it was because the wife’s family thought that the husband was not good enough for her, despite the fact that he came from a higher caste and she from a lower one.  The Tribunal found that the causes of concern were ones personal to the husband, namely his lack of education, inability to speak English and his not being up to date.  The Tribunal considered that the motivating factor was a personal one, relating to dissatisfaction by the wife’s family with her choice in husband.   The Tribunal concluded that any harm that flowed from that, no matter how serious, was not for a Convention reason. 

19. Secondly, the Tribunal observed that the appellants, on their own evidence, are wealthy and have travelled to different parts of India.  They are educated, the wife being particularly well educated.  The wife speaks several languages.  The Tribunal found that the harm the appellants claimed to fear is a localised one in Hyderabad.  The Tribunal found that they could, if they wish, move to any other part of India and that it is reasonable in all the circumstances for them to do so, if indeed they did fear harm in Hyderabad.

20. The grounds specified in the amended application assert denial of natural justice and failure to apply the correct test.  The denial of procedural fairness involves two limbs.  The first is that the Tribunal had regard to material that it did not give to the appellants and that the appellants were not given a proper opportunity to respond to such materials.  Division 4 of Part 7 of the Act is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.  Section 424A sets out the extent to which the Tribunal is required to afford an opportunity to comment on adverse material.  Such an opportunity does not arise in relation to information that is not specifically about an applicant or another person and is just about a class of persons of which an applicant or another person is a member. 

21. In any event, the principles of common law procedural fairness would not require a Tribunal to identify all material that may be available to it.  The relevant obligation is to ensure that an opportunity is given to a person whose interests may be seriously affected by the exercise of a statutory power to respond to adverse information that is credible, relevant and significant to the decision to be made.  No attempt has been made before me, and none was made before the Federal Magistrates Court, to identify information that was said to be adverse, credible, relevant and significant to the Tribunal's decision, the substance of which was not put to the appellants.  The appellants filed three separate documents purporting to identify grounds of review but none of them identified any such information.

22. The second limb of the denial of procedural fairness ground is repeated in the second ground.  The assertion is that the Tribunal failed to deal with the appellants’ claim that they feared persecution on the basis of their membership of a particular social group, namely their caste.  However, the appellants did not advance a claim based on their membership or the membership of either of them of a particular social group.  In their original application, they claimed a well‑founded fear of persecution owing to religion.  During the hearing before the Tribunal, the appellants were asked how their claim fitted within the Convention definition.  The response was:

    ‘Race and religion… he is a Brahmin and we are Sutmuichi which is a lower caste...  he is Gujarati and I am a Punjabi.’

23. However, there was no other suggestion that either was being persecuted by reason of being a member of a particular caste or of having a particular religion.  Further, the Tribunal clearly had regard to that response and no error is disclosed in its rejection.  The Tribunal dealt in substance with their claims of fear by reason of their inter-religious, inter-caste marriage and rejected the assertion on the grounds that I have summarised already, namely on grounds of credibility that the harm they fear was not really Convention based, and finally that it would be reasonable for the appellants to relocate to another part of India if they genuinely feared harm in Hyderabad.  There is no basis for suggesting that the Tribunal failed to apply the correct test in considering whether the appellants could suffer persecution due to their membership of a particular social group.

24. The second aspect of the claim, that the Tribunal failed to apply the correct test, is that the Tribunal failed to consider whether the State’s inability to protect the appellants from harm for a non-Convention reason amounted to persecution by the state for a Convention reason.  That ground, of course, assumes that there was a genuine fear on the part of the appellants.  But, in any event, no suggestion appears to have been made that protection would not be afforded in India or that any failure to afford protection was for a Convention reason.  In the light of the findings that the Tribunal made, this question simply doesn't arise. 

25. The Federal Magistrates Court fairly canvassed the issues raised by the amended application.  I am unable to discern any error in the Court's reasons.  There does not appear to me to be any basis for suggesting that there was jurisdictional error on the part of the Tribunal in making its decision of 29 January 2004.  It follows that that decision is a privative clause decision.  Accordingly, it is final and conclusive and cannot be challenged, appealed against, reviewed, quashed or called in question in any court.  The application was properly dismissed and it follows that the appeal must be dismissed.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:       7 August 2006

The First and Second Appellants appeared in person.
Solicitor for the Respondent:	Australian Government Solicitors
Date of Hearing:	31 July 2006
Date of Judgment:	31 July 2006