SZDPO & Ors v MIMIA

[2005] HCATrans 867

[2005] HCATrans 867

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S345 of 2005

B e t w e e n -

SZDPO

First Applicant

SZDPP

Second Applicant

SZDPQ

Third Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 20 OCTOBER 2005, AT 11.02 AM

Copyright in the High Court of Australia

__________________

McHUGH J:   The applicants are three members of a family.  The husband and wife claim to fear persecution on the basis of their religion if they return to India, their country of nationality.  The applicant child relies upon the claims of her parents.  The wife was a widow at the time she married the husband.  The applicants claim that the Hindu religion requires widows to throw themselves on the funeral pyres of their deceased husbands, a practice known as sati.  They say that their marriage is a violation of Hindu tradition and that they have been persecuted by Hindus as a result of their marriage.

The Refugee Review Tribunal, in affirming the decision of the Minister’s delegate to refuse to grant protection visas to the applicants, found that the claim of religious persecution could not succeed because any harassment that the applicants had suffered had been a result of their positive acts and not by virtue of any inherent characteristic, such as religion.  The Tribunal said, “[the applicants] are not claiming fear of persecution for being Hindus; they claim fear of being persecuted for reasons of something they have done, or that at least the Applicant wife has done.”  RRT reference No4/48108 at 10.  If the Tribunal’s reasoning had been based on this point alone, the applicants may have had an arguable case that it committed an error in law when it introduced this distinction between positive acts and inherent features.  But the Tribunal also found that sati is illegal in India and that women who are harassed for not committing sati “would have access to the full force of the law in India”.  Additionally, the Tribunal pointed to evidence that the applicants had remained in India for over a decade after they married and concluded that they did not have a subjective fear of persecution. 

On 11 February 2005, the Federal Magistrates Court dismissed an application for a review of the Tribunal’s decision, and on 28 June 2005, the Federal Court dismissed an appeal against that decision.  There is nothing to suggest any error of law in either of those decisions, or any appealable error of law in the reasons of the Tribunal.  Accordingly, the application for special leave to appeal must be dismissed.

Under the power conferred by Rule 41.10.5 we direct the Registrar to draw up, sign and seal an order that the application is dismissed.  I publish our joint reasons.

AT 11.02 AM THE MATTER WAS CONCLUDED