SZDPO v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 877

FEDERAL COURT OF AUSTRALIA

SZDPO v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 877

SZDPO, SZDPP AND SZDPQ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 265 OF 2005

STONE J
28 JUNE 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 265 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZDPO
FIRST APPELLANT

SZDPP
SECOND APPELLANT

SZDPQ
THIRD APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

STONE J

DATE OF ORDER:

28 JUNE 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs.

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 265 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDPO FIRST APPELLANT
SZDPP SECOND APPELLANT
SZDPQ THIRD APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	STONE J
DATE:	28 JUNE 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from the decision of a Federal Magistrate in which his Honour dismissed an application under s 39 of the Judiciary Act 1903 (Cth) for review of a decision of the Refugee Review Tribunal (‘Tribunal’) made on 5 May 2004. His Honour’s reasons are to be found at [2005] FMCA 159. The Tribunal confirmed a decision of a delegate of the respondent refusing to grant protection visas to the appellants.

2. The appellants are a husband, wife and their six year old daughter, who arrived in Australia from New Zealand on 18 November 2003.  The appellants are originally from India.  The husband and wife claim to have a well-founded fear of persecution for religious reasons should they be returned to India.  The daughter’s claims are dependent on those of her parents and in these reasons a reference to the appellants is a reference to the husband and wife. 

3. The appellants claim that they married in Birati in 1992 and since then have not been accepted in India by Hindu society because the wife was a widow at the time of their marriage.  They claim that, according to Hindu beliefs, the wife should have committed sati by throwing herself on the funeral pyre of her late husband.  They claim that because of this they have been harassed and suffered taunts as well as spitting and stoning.  They claim that their first child died one day after a premature birth brought on by the wife falling as she tried to escape such treatment.  After that they moved to Mumbai where, as the Tribunal noted, they do not claim to have been mistreated although they were worried.  They moved to Basarat where their daughter was born.  According to the Tribunal, whose account has not been challenged:

   ‘The Applicants refer vaguely to a hostile environment in Barasat but provide no evidence of one apart from a one-off assault of the Applicant husband by what he called “Hindu fanatics” in December 2000, but he did not provide evidence as to how he knew they were Hindu fanatics or how the attack on him could have been motivated by his wife’s action in marrying or consorting with him.  He claimed he complained to the police, who ignored him.

   The Applicants stayed in Barasat well into the next year, leaving only when the Applicant wife was accepted as a student in New Zealand in July 2001.  They claim they went to New Zealand to seek protection but … they made no refugee protection applications there.’

4. The appellants claim that even in New Zealand they experienced discrimination and harassment from the Hindu community.  In a statement made in support of the appellants’ application for protection visas the husband says concern for their daughter led them to leave New Zealand and seek refuge in Australia. 

5. The Tribunal offered the appellants the opportunity to make oral submissions and attend a hearing on 5 May 2004.  Only the appellant husband attended the hearing and, according to the Tribunal, he was authorised by his wife to put the family’s case to the Tribunal.  The Tribunal gave its decision to refuse the appellants’ application for protection visas at the conclusion of that hearing and sent written reasons for its decision to the appellants on 12 May 2005. 

6. Although the Tribunal accepted that the appellants faced pressure from family and friends over their marriage it did not accept that the appellants had been subjected to sustained, frequent or systematic harassment.  The Tribunal relied on independent country information in coming to the conclusion that sati is illegal and that women who are harassed for not committing sati ‘would have access to the full force of the law in India’.  The fundamental reason for the Tribunal’s rejection of the appellant’s application seems to be that it did not believe that they had a subjective fear of harm in India.  In this regard the Tribunal made the following comment:

   ‘The Tribunal notes that the Applicants did not leave India until almost a decade after they married.  They were prosperous enough to be able to travel a great distance and study for a very long period in a foreign country before coming to Australia.  Their wealth would put them in the burgeoning middle class in India and arguably insulate them in the more secular cities where they lived from patriarchal religious communities of the kind that are more likely to have a grip in the countryside and smaller towns and villages.

   The Tribunal notes the Applicant husband’s professional history.  He was brought up in a family business and has been able to employ himself.  He has worked continuously since 1985.  His family’s moves to new cities have not left him searching for jobs; rather his new employment history is so seamless as to suggest that work usually called him to these new cities rather than problems forcing him away from previous ones.’

7. The Tribunal said that it could find no evidence of widows who remarry being treated as a particular social group in India much less of them being persecuted by reason of membership of that group. 

8. In the Federal Magistrates Court the appellants alleged that the Tribunal had been biased, intimidating and had an ‘evil look’.  This was said to have been manifested not only by the Tribunal’s conduct during the hearing when it had been irritated, even angry with the husband but also by the Tribunal making its decision immediately after the hearing.  The tape of the Tribunal hearing was in evidence before his Honour who listened to it in Court.  The appellant was given an opportunity to indicate those parts where he had concern about the conduct of the Tribunal member. 

9. In relation to the tape his Honour made the following comment:

   ‘I listened carefully to the tape and although I could discern some small impatience at times, I could not detect anything that might involve intimidation or improper pressure.  Although the Tribunal member was direct in presenting his comments to the applicant, the tone seemed quite normal and appropriate.  In my view, there was nothing on the tape or on the face of the decision that suggests a lack of independence or an evil look.’

10. His Honour’s reasons in respect of allegations of bias do not disclose any error.  This ground of appeal must therefore be rejected.

11. The appellants’ amended notice of appeal also contends that the Tribunal relied on country information adverse to the appellants upon which they were not given the opportunity to comment. The appellants have been unable to point to the particular information they argue they were denied the opportunity to comment on. In any event, ss 424A(1) and (3) of the Migration Act 1958 (Cth) operate such that the Tribunal was not obliged to disclose the general country information on which it relied.

12. At the hearing of the appeal, the appellant husband made submissions which in essence contended that the Tribunal’s decision was wrong and could not be supported.  I explained the limits of the jurisdiction of this Court and the Federal Magistrates Court, in that neither Court can review the merits of the appellants’ claims.

13. In the absence of any jurisdictional error being identified by the appellants and given that I can detect no such error on the face of the Tribunal’s reasons, in my view the Federal Magistrate was correct in dismissing the application.

14. It follows that the appeal must be dismissed with costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:             28 June 2005

The First Appellant appeared on behalf of the Appellants.
Counsel for the Respondent:	Ms L Clegg
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	28 June 2005
Date of Judgment:	28 June 2005