SZEGA v Minister for Immigration
[2005] FMCA 346
•24 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEGA & ANOR v MINISTER FOR IMMIGRATION | [2005] FMCA 346 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no reviewable error – application dismissed. |
Migration Act 1958 (Cth), ss.91S, 474
Judiciary Act 1903 (Cth), s.39B
Migration Legislation Amendment Act (No. 6) 2001 (Cth), s.7
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1994) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
VTAO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 927
Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1
Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225
Ram v Minister for Immigration & Ethnic Affairs (1995) 57 FCR 565
SDAR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1102
SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 548
Visvalingam v Minister for Immigration & Multicultural Affairs [2001] FCA 696
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 124 ALR 265
Abdi v Minister for Immigration & Multicultural Affairs [2000] FCA 242
Minister for Immigration & Ethnic Affairs v Singh (1997) 72 FCR 288
Minister for Immigration & Ethnic Affairs v Singh (1997) 74 FCR 553
Chen She Hai v Minister for Immigration & Multicultural Affairs (2000) 170 ALR 553
Minister for Immigration & Multicultural Affairs v Sarrazola (2001) 107 FCR 184
M41 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2004] FMCA 576
| Applicants: | SZEGA & SZEGB |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2609 of 2004 |
| Delivered on: | 24 March 2005 |
| Delivered at: | Sydney |
| Hearing date: | 3 March 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Solicitors for the Respondent: | Ms A Alex of Phillips Fox |
ORDERS
The application is dismissed.
The applicants are to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2609 of 2004
| SZEGA & SZEGB |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 14 July 2004 and handed down on 4 August 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 12 December 2003 to refuse to grant the applicants a protection visa.
Background
The applicants in these proceedings are not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and have been given the pseudonyms “SZEGA” (husband) and “SZEGB” (wife).
The applicants, who are citizens of India, are husband and wife (Court Book pp.33-35) (“CB”) who arrived in Australia on 4 August 2003 and 13 September 2003 respectively. On 17 September 2003 they lodged an application for a protection (Class XA) visa (CB pp.1-27) with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. The application was refused by the delegate on 12 December 2003.
The applicants are both Hindus from Andhra Pradesh. They claim to have left India due to problems arising as a result of their marriage. The husband claims to belong to the Bagepalli community and the wife claims to belong to the Cingareddy community. The applicants claim that prior to marriage their courtship was conducted without the knowledge of either of the applicants’ parents. In November 2002 the respective parents were informed of the couple’s intention to marry. The applicants claim that:
a)The wife’s parents did not agree to the marriage and she was locked up and beaten.
b)The wife’s parents contacted members of the Telugu Desam party (specifically mafia members of that party) and warned the husband against further contact with his wife.
c)In December 2002 the couple fled their homes and married.
d)The wife’s parents have paid money to mafia people to kill them both (CB pp.20-21).
The Tribunal noted both applicants’ travel details, and took oral evidence from each applicant individually but came to a joint decision on both applications. In respect of the husband, the Tribunal noted the following:
a)The husband stated that he had lived in his home town for ten years prior to his marriage. After his marriage in Turpeth in December 2002, the applicants lived in ‘other places’ including a friend’s house in his home town and a week in Madras in January 2003, prior to their first departure for Australia.
b)The husband stated that upon returning to India on 12 March 2003 he was in Madras for six to seven weeks before returning to Sydney on 4 May 2003 and he did not return to India after that (CB p.77).
The husband claimed he was in fear of his parents-in-law due to their connections with the Telugu Desam party and that they utilised these connections to employ thugs to trace the couple with the intention of killing them (CB p.78). In Madras the couple came to no harm and although ‘they’ located the wife, no harm came to her either (CB p.78). The husband stated he could not relocate in India because he is a member of the Telugu community and his parents-in-law would find the couple through that community (CB p.78).
In respect of the wife, the Tribunal noted she had travelled to Australia on 9 February 2003 and departed for India on 12 March 2003 and returned to Australia on 13 September 2003. Her claims and evidence were in keeping with her husband, however she further claimed:
a)She feared her parents as they did not approve of ‘love marriages’ (CB p.79).
b)In August 2003 hit-men hired by her parents had confronted her friends in her home town while she was in Madras, and as a result of her fear she contacted the husband in Australia and then departed for Australia (CB p.80).
c)She could not relocate outside of the Telugu community due to her inability to speak any other language (CB p.80).
The Tribunal’s findings and reasons
The Tribunal accepted that the applicants were targeted by thugs from the Telugu Desam party hired by the wife’s parents. However, the Tribunal found that their interest in the applicants was of a ‘very local nature’. The Tribunal cited independent evidence to suggest that Telugu Desam was State based and did not operate outside of Andhra Pradesh. Further, the Tribunal noted the applicants’ evidence that they had spent time in Madras and had come to no harm (CB p.85). The Tribunal was satisfied on the applicants’ evidence and the independent country information that no harm would come to them outside of Andhra Pradesh (CB p.85). Given their youth, qualifications and language abilities, the Tribunal was satisfied that it was reasonable and feasible that the applicants could relocate (CB p.86).
The Tribunal noted that it was legitimate to take into account the applicants’ delay in lodging their application for protection. The husband had entered Australia three times and resided in Australia for four months prior to lodging an application for protection. In light of this fact, the Tribunal did not accept that either applicant genuinely feared the wife’s parents or their thugs (CB p.86). Based on the applicants’ evidence, the Tribunal noted that any harm they feared was from a particular person or persons, namely the wife’s parents and the people they hired. The evidence indicated that these persons were interested in the applicants because of characteristics peculiar to them and not of any Convention grouping. Therefore, the Tribunal was not satisfied that the applicants had a well-founded fear of persecution for a Convention reason (CB p.83).
Application for review of the Tribunal’s decision
On 23 August 2004 the applicants filed an application for review under s.39B of the Judiciary Act 1903 (Cth). On 14 December 2004 the applicants filed an amended application and on 8 February 2005 the applicants filed a further amended application setting out the following grounds:
“1.The Tribunal made jurisdictional error as it failed to consider the refugee claim based on the applicants belonging to a particular social group.
Particulars
This particular social group is any one of the following:
a)Couples in India consisting of a man and woman who come from different community/caste/race, who eloped and got married.
b)Couples in Andhra Pradesh consisting of a man and woman who come from different community/caste/race, who eloped and got married.
2.The Tribunal made jurisdictional error by not considering whether persecution base on caste is convention related.
Particulars
On CB 20.10 in answer to Question 41 the applicant says:
‘… though we are of same religion but there is a difference between our Communities. I belong to Bagepalli Community and my wife is from Cingareddy community …’
Caste is a variant of race. The applicant husband is from Bagepalli caste and wife is from Cingareddy caste. The Tribunal did not inquire whether the girl’s parents were angry because he is from a different community/caste.
3.The Tribunal made jurisdictional error by not considering whether persecution was based on political opinion.
Particulars
CB 77.30
The Tribunal in its decision said that:
‘The applicant’s prospective parents-in-law contacted people in the Telugu Desam party and the mafia people from that party, who warned the applicant against having any further contact with the applicant wife.’
The Tribunal failed to inquire whether the thugs from Telugu Desam party tried to harm the applicants because the applicant husband was attributed with a political opinion, most specifically ‘anti Telugu Desam opinion’.
4.The Tribunal made jurisdictional error as it based a key finding on no evidence. There is no evidence that the applicant wife was not harmed in Chennai.
Particulars
On page CB 85.20 The tribunal says: ‘The applicants themselves gave evidence at hearing that during the time they spent in Chennai (Madras) in 20034, neither the applicant nor the applicant wife came to any harm whatsoever’ (Emphasis added)
On page CB 80.10 the applicant wife says: ‘The applicant wife stated that the hit men actually went to the home of friends in Praddatur and threatened them there. The applicant wife stated that she never had any direct threats but she was afraid because she was [they were??] threatening her friends.’
On page CB 80.20 the Tribunal says: ‘The tribunal asked the applicant wife when the threats against her friends took place. The applicant wife stated that when she was in Chennai they were pressurized to give information about her whereabouts but they gave the hit-men an incorrect address.’
The harm the wife suffered was terrible fear because she continued to feel when she heard from her friends that Telugu Desam criminals are after her.
5.The Tribunal made jurisdictional error as it unreasonably (in the Wednesbury sense) found that the applicants can relocate in India.
Particulars
On CB 87 the Triubnal said:
‘The tribunal accepts that the applicants were targeted by thugs from Telugu Desam party, hired by the applicant wife’s parents-in-law in Andhra Pradesh, however, it also accepts that their interest in the applicant was of a very local nature. The tribunal notes that according to the independent evidence (see above) the Telugu Desam party is a state based party that does not operate outside Andhra Pradesh. The applicants themselves gave evidence at hearing that during the time they spent in Chennai (Madras) in 2003, neither the applicant nor the applicant wife cane to any harm whatsoever. The tribunal is satisfied on the evidence before it, that the applicants do not have any profile that would place them at risk outside Andhra Pradesh. The Tribunal is satisfied on the applicants’ claims and the independent evidence, that the applicants can live in other parts of India other than Andhra Pradesh …’
The applicant wife gave evidence that the Telugu Desam thugs were searching for her at Chennai. This shows that the applicants were not safe outside Andhra Pradesh. Also even if the Telugu Desam party is state based there is no doubt that it has national status and influence throughout India.” … (Errors included)
The law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
Submissions
The applicants appeared self represented and indicated to the court that the husband was competent in English, the wife had a limited understanding of English and they did not require an interpreter. The applicants were advised that if there was anything said during the proceedings which they did not understand and required explanation they were to indicate this and the matter would be repeated and explained where necessary. Prior to the hearing the applicants filed an outline of their submissions in which each of the grounds and particulars were reproduced, supported by case references with considerable extracts reproduced from those decisions. The important sections contained within these extracts were emphasised in bold print. Those key passages together with the submissions are reproduced as follows:
Ground 1
a)In VTAO v Minister for Immigration & Multicultural & Indigenous Affairs (“VTAO”) the principles involved in the definition of “particular social group” were considered in detail. At [28] of VTAO, His Honour Merkel J referred to Minister for Immigration & Multicultural & Indigenous Affairs v Khawar (“Khawar”) where their Honours returned to the ‘left-handed men’ example of McHugh J in Applicant A v Minister for Immigration & Ethnic Affairs (“Applicant A”):
“… if the community’s ruling authority were to legislate in such a way that resulted in discrimination against left-handed men, over time the discriminatory treatment of this group might be absorbed into the social consciousness of the community. In these circumstances, it might be correct to conclude that the combination of legal and social factors (or norms) prevalent in the community indicate that left-handed men form a particular social group distinguishable from the rest of the community.”
Again at [28] it was noted:
“… the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large.”
At [29]-[30] it was noted that their Honours applied the above principles at 255 [50]:
“Disposition of the appeal …the tribunal failed to consider the correct issue. This was whether because of legal, social, cultural and religious norms prevalent in Afghan society, young able-bodied men comprised a social group that could be distinguished from the rest of Afghan society.”
His Honour McHugh J stated at 260 [69]:
“To qualify as a particular social group, it is enough that objectively there is an identifiable group of persons with a social presence in a country, set apart from other members of that society, and united by a common characteristic, attribute, activity, belief, interest, goal, aim or principle. … It is enough that the persecutor or persecutors single out the asylum-seeker for being a member of a class whose members possess a ‘uniting’ feature or attribute, and the persons in that class are cognisable objectively as a particular social group.”
It was submitted that in the current case the particular social group advanced by the applicant is not defined by the persecution. Indian society which enforces strict moral values on its members imparts serious punishment for women who elope and get married outside their community/caste/race and continue to make them outcast and take revenge on them. It is internationally known that there were many instances where parents have killed their daughters who eloped and got married to someone from outside their community/caste/race.
As stated by McHugh J above ‘it is not necessary that the persecutor or persecutors actually perceive the group as constituting ‘a particular social group’.
In VTAO able bodied Afghan men were accepted as forming a particular social group and similarly in Khawar the High Court held that married women in Pakistan can constitute a social group. Therefore, in the current case, the group identified should be accepted as one as well.
Ground 2
b)It was submitted that the Tribunal commenced summarising the applicants’ claims as:
·They left India because of problems arising from their marriage;
·The husband is from the Bagepalli community and the wife is from the Cingareddy community.
The applicants’ claims should have triggered the Tribunal about the difference of the husband and wife (in the sense of coming from different community or caste) and should have prompted it to consider whether that would be a cause of the conflict and whether that would put the applicants into a particular social group. The Tribunal failed to do this and therefore made jurisdictional error.
Ground 3
c)The Tribunal failed to inquire whether the thugs from Telugu Desam Party tried to harm the applicants because the husband was attributed with a political opinion, most specifically ‘anti-Telugu Desam’ opinion.
Ground 4
d)The Tribunal made error in two respects. Firstly, it said the applicants were not subjected to any harm whatsoever. This was wrong because the wife gave evidence that she was in constant fear. Secondly, the Tribunal may have thought that direct telephone threat or indirect threat, which is a threat from knowing that someone is after them, is not harm. The Tribunal made legal error in understanding the word ‘harm’ which constituted jurisdictional error.
Ground 5
e)The Tribunal misunderstood the role of the Telugu Desam party in Indian politics and called it a regional party having influence only at the State level. The Telugu Desam party, in addition to ruling at a State level in Andhra Pradesh, was one of the most influential parties within the Indian Central Government. It had several ministers in the Central Government and the speaker of the Lok Sabha (Lower House Parliament) was from Telugu Desam. Telugu Desam was very powerful within the Central Government and thus had power outside the state of Andhra Pradesh.
Ms A Alex, Solicitor, appearing for the respondent, filed written submissions prior to the hearing which contained the following contentions:
a)The Tribunal’s decision ultimately turned on the lack of a nexus to a Convention related reason (CB pp.83, 86) given that the applicants’ fear related to retribution from the wife’s parents as a result of their alleged non-approved marriage (CB pp.78-79).
Grounds 1 & 2
b)There were no issues arising in relation to a particular social group given that this case was solely about parental disapproval to the marriage. In order to form a particular social group the fundamental requirement was the element of cognisability uniting the group. In Ram v Minister for Immigration & Ethnic Affairs Burchett J said at 569 (and this statement was supported by the High Court in Applicant A at 285):
“There must be a common unifying element binding the members together before there is a social group of that kind. When a member of a social group is being persecuted for reasons of membership of the group, he is being attacked, not for himself alone or for what he owns or has done, but by virtue of his being one of those jointly condemned in the eyes of their persecutors, so that it is a fitting use of language to say that it is ‘for reasons of’ his membership of that group.”
The respondent submitted that the present matter was distinguishable from VTAO and Khawar as cited by the applicants and the wife did not constitute a particular social group as defined in Khawar.
It was submitted that the explanatory memorandum relating to s.91S of the Act states that:
“… the provisions do not prevent a family, per se, being a particular social group for the purpose of establishing a Convention reason for persecution. However, they prevent the family being used as a vehicle to bring with [in] the scope of the Convention persecution motivated for non-Convention reasons.”
In SDAR v Minister for Immigration & Multicultural & Indigenous Affairs (“SDAR”) the Parliament’s intention, as expressed in the Explanatory Memorandum, was upheld by Merkel J. The Court’s construction only removes one aspect of family persecution from the protection of the Refugees Convention in Australia. The provision only excludes a fear of family persecution arising from or associated with persecution for a non-Conventional reason: SCAL v Minister for Immigration & Multicultural & Indigenous Affairs (“SCAL”) per von Doussa J.
The respondent submitted that ‘caste as a variant of race’ (as described by the applicants) in the circumstances of this case where it was the applicants’ marriage that raised the fear of harm, does not form the basis of the claimed particular social group. In Visvalingam v Minister for Immigration & Multicultural Affairs the Court concluded at [21] that, at law, there was no separate requirement to consider a fear of persecution for reasons of race. That is, whether being a Tamil, per se, gave rise to a well-founded fear in relation to Sri Lanka. Consideration of the applicants’ claims to fear persecution must take place in the context of the applicants’ personal circumstances.
Ground 3
c)It was submitted that political opinion did not arise in this matter as there was no claim by the applicants of their belonging to a political party or holding any political association or views that might bring them within this particular Convention related area. The fact that the alleged political thugs hired by the wife’s parents caused the applicants to fear for their safety did not constitute a well-founded fear for reasons of political opinion within the meaning of the Convention.
Ground 4
d)Contrary to the applicants’ claim of no evidence in relation to findings made by the Tribunal of the wife being harmed in Chennai, there is evidence of the applicant wife admitting that alleged hit men had come to the home of friends and made threats (CB pp.79-80). The wife admitted she never had any direct threats but was afraid because she was threatening her friends. The respondent submitted that there was established evidence and no error of law on the part of the Tribunal.
Ground 5
e)It was submitted that the Tribunal was not in error in finding that the applicants could relocate within India. In Randhawa v Minister for Immigration, Local Government & Ethnic Affairs, the Court applied the principle that an applicant for a protection visa must have a well-founded fear of persecution throughout their country. Alternatively, if an applicant’s well-founded fear was confined to some part of their country, he or she may still be entitled to a protection visa if it is not reasonable to expect them to return to the part or parts of the country where their fears or harm were not well-founded. It was submitted that any reluctance on the part of the applicants to relocate was not sufficient to avoid the operation of the relocation principle: Abdi v Minister for Immigration & Multicultural Affairs. The Court applied the well established principle that an application for a protection visa is to be judged by measuring against the Convention the applicant’s circumstances at the time the application is determined. Minister for Immigration & Ethnic Affairs v Singh (1997) 72 FCR 288 at 291-292; Minister for Immigration & Ethnic Affairs v Singh (1997) 74 FCR 553 at 556-557. The Court stated at [26]:
“In this case, the Tribunal found that protection was, and is, available in another part of the country of origin of the applicant. He did not seek to avail himself of it as a matter of choice and does not seek it now.”
f)The respondent submitted that there were no issues of any substance arising in this matter and no reviewable error of any kind on the part of the Tribunal. It was open to the Tribunal to reach its decision on the evidence before it. The Tribunal’s conclusion that the applicants’ claims were not Convention related was supported by good authority. In Chen She Hai v Minister for Immigration & Multicultural Affairs at 302, the High Court focused on whether the nexus could be established by inference drawn from the severity of treatment and the identifiable groups to which the applicant belonged:
“… not every form of discriminatory or persecutory behaviour is covered by the Convention definition of ‘refugee’. It covers only conduct undertaken for reasons specified in the Convention. And the question whether it is undertaken for a Convention reason cannot be entirely isolated from the question whether that conduct amounts to persecution. Moreover, the question whether particular discriminatory conduct is or is not persecution for one or other of the Convention reasons may necessitate different analysis depending on the particular reason assigned for that conduct.”
Reasons
Although the applicants are not represented in this Court by legal Counsel they have submitted detailed written submissions which do address the pleaded grounds in the further amended application. I have also been assisted by Ms Alex, Solicitor, representing the respondent, with written submissions filed prior to the hearing and supplemented by detailed and competent oral submissions at the hearing. The focus of the applicants’ pleadings and submissions developed an argument based on the requirements necessary to establish the applicants belonged to a particular social group. However, an important preliminary step raised in the respondent’s submissions under Ground 2 must be satisfied before the issue of membership of a particular social group can be addressed.
The initial issue to be resolved was the question raised by the Tribunal in their “Findings and Reasons” and it posed the following question:
“Are the applicants being targeted for a Convention reason?”
For the purposes of the Refugees Convention, a particular social group is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large. A family can be a particular social group however, where the claimed social group is a family, it is necessary to have regard to s.91S of the Act. That section was introduced into the Act by the Migration Legislation Amendment Act (No. 6) 2001 (Cth) (“Amendment Act”).
It was introduced in response to the decision of Minister for Immigration & Multicultural Affairs v Sarrazola, wherein a Full Court held that the sister of a person who was persecuted by criminals for failing to pay her brother’s drug related debts may have well-founded fears for persecution as a member of a particular social group, namely her family. The Amendment Act came into force on 1 October 2001. By reason of s.7 of the Amendment Act, s.91S of the Act applies to all cases finalised by the Tribunal after 1 October 2001.
Section 91S of the Act provides that:
“For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well-founded fear of being persecuted for the reason of membership of a particular social group that consists of the first person's family:
(a)disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; and
(b)disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.”
The fear of persecution held by the applicants does not correspond to the fear of persecution and persecution referred to in s.91S. In SDAR at [24] Merkel J defined persecution in the context of s.91S. His Honour explained that:
“It is my view that, properly construed, the fear of persecution and persecution referred to in s.91S is a fear and persecution for the reason that the person is a member of the particular family, another member of which fears persecution or has been or may be targeted for persecution for a non-convention reason.”
The facts of the present case can be distinguished from the facts of a case where s.91S applies. In this case the applicants’ problems developed because of an interfamily dispute and did not involve the persecution of another member of their family as described by Merkel J in SDAR. In the Second Reading Speech (House of Representatives, 28 August 2000, Hansard at 3422) the Minister in explaining s.91S said:
“The convention was not designed to protect people who fear persecution for personal reasons that have little or nothing to do with the convention – for example, because they have failed to pay their family’s debts.”
The case of M41 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (“M41 of 2002”) involved an interfamily dispute over the division of the applicant’s grandparents’ land. The applicant claimed that the division was affected by her family members’ membership or support of opposing political parties. The Federal Magistrate upheld the Tribunal’s decision that the dispute was not a matter that engaged the provisions of the Refugees Convention and that it was purely a private struggle over the distribution of an inheritance. Notably it was found that the different political affiliations were no more than a coincidence and not the cause of the conflict within the family.
Similarly, in applying the reasoning of the Federal Magistrate in M41 of 2002 to the present case, I find the disagreement between the applicants and the wife’s family over the wife’s parents’ disapproval of the applicants’ marriage to be purely a private interfamily dispute and one that does not engage the provisions of the Refugees Convention.
The Tribunal in answer to the question posed above at paragraph 15 made the following findings:
“The Tribunal cannot be satisfied that the applicants have a well-founded fear for a Convention reason. In order to fall within the Convention, the persecution the applicants’ fear must be one of the five Convention reasons. It is clear on the evidence provided by the applicants that they fear harm from particular persons – namely the applicant wife’s parents and the people they hired to harm them. The evidence supplied by the applicants at their hearings makes it clear that these persons (the parents-in-law and their hired thugs) are interested in the applicants because of attributes or characteristics which are peculiar to them, and not characteristic of any Convention grouping.
The Tribunal notes the comments of Brennan CJ in Applicant A & Anor v Minister for Immigration & Ethnic Affairs (1997) 142 ALR 331 at 334) who said:
“The persecution must be ‘for reasons of’ one of [the prescribed] categories. This qualification excludes indiscriminate persecution which is the product either of inhuman cruelty or of unreasoned antipathy by the persecutor towards the victim or victims of persecution. Persecution of that kind is a general, non-discriminatory denial of fundamental rights and freedoms. (Tribunal emphasis)” (CB p.83)
The balance of the grounds in the submissions depends on the argument that the circumstances of this application are covered by the Convention. The arguments are based on the criteria that the applicants satisfy the various requirements under the Convention and the supporting authorities for those contentions. I agree with the Tribunal’s findings set out above that the applicants do not have a well founded fear for a Convention reason and in the circumstances of this case I find that s.91S does not apply to the fear of persecution held by the applicants.
I am not satisfied that the applicants comply with the requirements of the Convention and consequently the arguments raised under each of the grounds are not sustainable. I accept the respondent’s submissions except to the extent that they submit s.91S applies.
Conclusion
For the reasons set out above, the applicants do not meet the requirements of the Refugees Convention. Consequently, the application should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 24 March 2005
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