SZFCE v Minister for Immigration - [2005] FMCA 1939

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFCE & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1939

MIGRATION – RRT decision – Indian feared persecution as deserted Muslim woman – whether claims sufficiently addressed by Tribunal – no error found.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91R(1), 91R(2), 474(1), 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Applicant A85 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 531
Minister for Immigration & Multicultural Affairs v Eschetu (1999) 197 CLR 611
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30

First Applicant:

SZFCE

Second Applicant:

SZFCF

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3432 of 2004

Judgment of:

Smith FM

Hearing date:

8 December 2005

Delivered at:

Sydney

Delivered on:

8 December 2005

REPRESENTATION

Counsel for the Applicants:

Mr M Newman

Solicitors for the Applicants:

Newman & Associates

Counsel for the First Respondent:

Mr S Lloyd

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The Tribunal be included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3432 of 2004

SZFCE

First Applicant

SZFCF

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed in this Court on 24 November 2004 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 11 October 2004 and handed down on 2 November 2004. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
Section 483A has been repealed by the Migration Litigation Reform Act 2005 (Cth). However, the repeal does not affect the continuance of present proceedings (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8).
The Court’s jurisdiction under s.483A is the same as the Federal Court’s jurisdiction under s.39B of the Judiciary Act 1903 (Cth). This is subject to limitations under Pt.8 of the Migration Act, which have the effect that I do not have power to set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476). I do not have power myself to decide whether the applicant’s claim should be believed, nor whether she qualifies for a refugee visa or any other permission to stay in Australia.
The applicant arrived in Australia in June 2000 with her mother, who had previously visited Australia to visit another daughter. On 22 September 2000 they applied for protection visas, presenting the claims of the daughter as the substantive claims relied upon.
Her application for protection visa indicated that protection in Australia was sought from having to return to India, upon the following account of her circumstances:
36Why did you leave that country?
I used to live with my mother, husband, and brother’s family in Mumbai. Our family owns a catering business in Mumbai, India. The name of our business is “[name]”. We used to cater for individual orders, parties, special orders, etc. The business was very prosperous until recently when we started having problems ‑ political based. RSS supporters and BJP sympathisers attacked our Muslim community. Our property was burned down and our lives were threatened. We fled the country.
37What do you fear may happen to you if you go back to that country?
If my mother and I were to go back to our country now when there is still trouble in our community, we would be attacked and possibly killed. Therefore we request protection of this country for some time until the situation improves there.
The applicant’s application was refused by a delegate on 20 October 2000, and the applicant appealed to the Refugee Review Tribunal assisted by a migration agent. The application form continued to present her claim on the basis of her Muslim religion and the position of Muslims generally in India. It said:
We have experienced religious riots and lost our business and properties and many times fear of being kidnapped/raped and killed.
The majority of Hindu population turn violent and chase us out of the country.
The applicant attended a hearing before the Refugee Review Tribunal on 1 May 2002, and the Tribunal handed down a decision on 11 June 2002. That decision was set aside by order of Mansfield J on 7 May 2004 (see Applicant A85 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 531). His Honour identified one error in the Tribunal’s reasoning. This was its finding that the prospect of robbery or taunting when walking down the street did not involve “serious harm amounting to persecution” within the meaning of the Convention definition when read with s.91R(1) and (2) of the Migration Act. His Honour said at [18]:
The Tribunal must have fallen into some error of law in not recognising that as serious harm for the purposes of s 91R(1) and (2) and Art 1A(2) of the Convention.
Mansfield J did not find error in other aspects of the Tribunal’s decision. He expressly rejected a submission by the applicant’s solicitor that the Tribunal failed “to appreciate that the applicants made a claim of persecution for reasons of their membership of a particular social group, namely ‘unaccompanied single Muslim women in India’”. At [20], he found that such a claim “was not made either expressly, or by implication in a context in which the Tribunal ought to have appreciated that it was made”.
Upon remitter, the applicant was invited to a hearing conducted by the Tribunal as reconstituted, and she attended that hearing with her migration agent on 8 September 2004. The Tribunal gave the agent leave to make a post‑hearing submission which was made on 30 September 2004.
A transcript of the hearing is not in evidence before me, but the Tribunal gives a detailed account both of the hearing conducted by the first Tribunal and the hearing conducted by it. It is plain that the applicant gave new prominence in her claims to the fact that, after her home was burnt down in the May 1998 riots, her husband deserted her and his whereabouts became unknown. She made a new claim that she would incur persecution by reason of her status as a single Muslim deserted woman, and sought to persuade the Tribunal that harms resulting from this status would be suffered by her wherever she lived in Bombay or anywhere in India.
The Tribunal’s description of her new claims included the following:
I asked the Applicant what had prompted her to leave India in June 2000. The Applicant said that the situation had been getting worse and worse. The street people in Muslim localities as well as Hindu localities had been calling her bad names and saying she was a cheap girl. The Applicant confirmed that she had been employed as a telephone operator and receptionist until she had left India to come to Australia in June 2000. She said that the street people had abused her after her husband had left her. She said that it would not have made any difference if she had moved to another part of Bombay because they would still have known that she was a single, deserted woman. She said that they would have known this because she had changed her name when she had got married. The Applicant’s representative interpolated that when the Applicant’s husband had left her the Applicant and her family had still been living on the streets in the same locality, because they had wanted to find out who had burned down the apartment block where they had lived. I noted that this still left open the question why the Applicant had not moved to some other part of Bombay if the situation had been so bad that she had decided to flee India. The Applicant repeated that they would have known that she was a married woman and that her husband had left her.
The Applicant said that her husband had left her in July 1998 and that they knew this in her locality. She said that her brother and her mother used to come and pick her up at work and they had been abused as well. She said that all this abuse had been because her husband had left her. They had regarded her as a cheap girl or a disgraced girl and she said that she had feared that they might rape her or kill her. She said that no locality in Bombay would have been safe. I noted that her brother had returned to live in the locality where they had previously lived, in [locality]. The Applicant said that her brother still had to listen to their abuse. She confirmed that she feared persecution because her husband had left her. She said that if she moved to a Muslim locality it would be the same. I noted that in her original application she had not said that she feared being persecuted because her husband had left her. She had said that she feared Hindu extremists, as a Muslim. The Applicant said that the locality had been a Muslim locality and they had been three or four Muslims sharing a unit. I noted that she had said at the previous hearing that each of the floors of the apartment block had been mixed Hindu and Muslim. The Applicant said that this was correct.
I asked the Applicant if she feared persecution by Hindu extremists and she said that she did. She said, however, that she feared them because she was a single Muslim deserted woman and that they would take revenge on her in a Hindu locality. I noted that she had said that she had lived in the Hindu locality since 1994. The Applicant said that she had not really had problems living there until her husband had deserted her. She said that there would be problems at the time of Hindu festivals. She instanced one festival when boys would throw balloons filled with dirty water at passers‑by. I asked the Applicant again why she had not moved to a Muslim locality if she had had these problems living in a Hindu locality. The Applicant said that she would have had the same problems because her husband had left her. I noted that at the previous hearing she had said that it had been an everyday occurrence for her to be scared to go out of her house and I put to her again that I would have thought that this would have made her move to a different locality. The Applicant repeated that if she had moved to a Muslim locality the same thing would have happened because her husband had left her.
The post‑hearing submission by the applicant’s agent identified a “second ground” which had not previously been mentioned “due to the fact that [the applicant] didn’t have adequate representation at the time”:
[the applicant’s] claim as refugee on the ground of a deserted Moslem woman in India. [The applicant] belongs to a particular group of society (Moslem deserted woman) whose life and safety is in danger by two groups, namely: her own community as well as the majority group in India, which is Hindu. …
In this submission, the focus is on the second part of [the applicant’s] claim as being a deserted single woman facing danger in hands of both Moslem and Hindu communities in India.
Submissions were then made on this topic, and some country information was presented to the Tribunal in support.
The multi‑faceted and changing claims made by the applicant presented the Tribunal with the task of having to make separate findings on a variety of aspects of the history presented by the applicant. Its “Findings and Reasons” on these issues covered some six pages. In my opinion it is plain from its opening paragraph that the Tribunal has appreciated that her most recent claims had presented at the forefront her situation as a single Muslim deserted woman subsequent to her husband’s desertion after the May 1998 riots.
However, the Tribunal first dealt with the original claim that her fears stemmed from her experiences in the 1998 rioting, and in particular the destruction of the apartment block in which she had lived. As did the first Tribunal, the Tribunal assessed the applicant’s evidence concerning the circumstances of the destruction of her apartment and did not accept “that the apartment block where the Applicant and her family lived was burnt down by Hindu extremists in religious or communal riots in May 1998”. The Tribunal said: “there is nothing to suggest that Muslim families in particular were targeted when the whole apartment block burnt down or that Hindu extremists were responsible”.
The Tribunal then rejected another significant aspect of the history presented by the applicant to both Tribunals, which was that she had been left destitute of proper accommodation. The Tribunal said: “I likewise do not accept that, after the apartment block where they lived burned down, the Applicant and her family were left with nowhere to stay”.
The Tribunal gave reasons for both of these findings. In my opinion they were findings open to it on the material. They are not the subject of any challenge in this Court.
Essentially, the Tribunal then reached a situation in assessing the applicant’s circumstances, where it found that she had continued to stay in the same Hindu neighbourhood where she had lived with her husband for a further two years after the destruction of her apartment block and his desertion.
The Tribunal addressed her claims to fear harassment when leaving her home. Its findings in relation to this are found in two paragraphs, which provided the focus of the contention made by the applicant’s solicitor which I shall address below. The Tribunal said:
As referred to above, at the hearing before the Tribunal (differently constituted) on 1 May 2002 the Applicant said that Hindu people and the youngsters from the Fisherman’s Colony used to tease her when she came home with her purchases from the market and that they sometimes stole her money or snatched her bag. She said that she did not fear that she would be killed specifically but being a Muslim if they could not get anything she might be killed. She said that it had been an everyday thing for her to be scared to go out of the house. However at the hearing before me she confirmed that she had been employed as a telephone operator and receptionist until she had left India to come to Australia in June 2000. She said that she had not really had problems living in a Hindu locality until her husband had deserted her in July 1998. She said that everyone in the locality where she lived had known that her husband had left her and they had been calling her bad names and saying she was a cheap girl. After I referred to the Applicant’s evidence at the previous hearing that it had been an everyday occurrence for her to be scared to go out of her house and I put to her that I would have thought that this would have made her move to a different locality the Applicant said that if she had moved to a Muslim locality the same thing would have happened because her husband had left her.
In fact the Applicant and her family moved to a Hindu locality after the riots in 1992, at a time when, as I put to her, many Muslims were moving to parts of the city where Muslims are in the majority. I accept that the Applicant and her family moved to this locality because her brother, who is handicapped, was given a government stall in the locality. However, having regard to the Applicant’s evidence at the hearing before me that she did not really have problems living in the locality until her husband left her in July 1998 I do not accept that there is a real chance that the Applicant will be robbed or killed or otherwise persecuted by Hindus on the streets if she returns to the Hindu locality where she lived in Bombay now or in the reasonably foreseeable future. As I put to her in the course of the hearing before me, I do not accept that she would not have moved from the Hindu locality to a Muslim locality in Bombay if, as she claimed at the hearing before the Tribunal (differently constituted), it was an everyday occurrence for her to be scared to go out of the house in the Hindu locality where she lived.
The Tribunal then assessed the situation of the applicant in relation to communal rioting. It found from country information that the situation in Bombay following rioting in 1992 had improved and “peace has been maintained in Bombay” despite rioting elsewhere in the country in 2002. The Tribunal concluded:
I do not accept there is a real chance that the Applicant will be attacked, kidnapped, raped or killed or otherwise persecuted by Hindu extremists for reasons of her religion (Muslim) in the context of communal or religious riots if she returns to her home city of Bombay now or in the reasonably foreseeable future.
The Tribunal then addressed her more recent claims to fear persecution as a “single deserted Muslim woman”. It first raised an issue as to whether such a class of women would constitute a “particular social group” in India for the purposes of the Convention. It said:
However apart from the Applicant’s assertions at the hearing before me, there is a dearth of evidence to suggest that Muslim women who have been deserted by their husbands are abused, regarded as cheap or disgraced or are in danger of being raped or killed by reason of their membership of the suggested social group in Bombay or elsewhere in India.
It accepted that the evidence submitted suggested that Muslim women suffered some disadvantages under Indian law, but did not consider that it supported the applicant’s claims “regarding the way in which Muslim women who have been deserted by their husbands are regarded by Muslims and Hindus alike”. It said:
If these views were as widely held as the Applicant suggested ‑ such that no locality in Bombay would have been safe for her ‑ I would have expected there to have been some support in the independent evidence for the existence of these views.
It then reached two conclusions. Firstly:
I do not accept on the evidence before me that Muslim women who have been deserted by their husbands form a group distinguishable from Indian society at large and so a ‘particular social group’ for the purposes of the Convention.
No attack is made in the application before me upon this conclusion. The Tribunal then recorded a second conclusion, which has more significance in the present matter:
I do not accept that there is a real chance that the Applicant will be abused or raped or killed or otherwise persecuted because she is a Muslim woman who has been deserted by her husband if she returns to her home city of Bombay now or in the reasonably foreseeable future.
The Tribunal then referred to the contention which had been rejected by Mansfield J. The Tribunal did not consider this had been further pursued before it in the terms which it had been put to Mansfield J. It said:
I note that in the course of the proceedings in the Federal Court it was claimed that the Tribunal (differently constituted) should have considered whether the Applicant had a well‑founded fear of being persecuted for reasons of her membership of the particular social group defined as ‘unaccompanied single Muslim women in India’. This claim was not pursued at the hearing before me but I note for the sake of completeness that I do not accept that the Applicant has a well‑founded fear of being persecuted for reasons of her membership of this suggested particular social group if she returns to her home city of Bombay now or in the reasonably foreseeable future. As noted above, the Applicant’s representative referred in her submission dated 28 September 2004 to disadvantages which Muslim women suffer under Indian law but it does not appear to me on the evidence before me that those disadvantages are relevant to the Applicant’s situation. The Applicant was independently employed before, during and after her brief marriage. Setting aside her claims that the apartment block where she lived with her family, and where she ran her catering business, was burned down by Hindu extremists in May 1998, that she was robbed, that she feared she might be killed and that she was too scared even to go out of the house in the Hindu locality where she lived ‑ claims which I have rejected above ‑ there is nothing in her evidence or in the independent evidence available to me to suggest that there is a real chance that she will be persecuted for reasons of her status as an unaccompanied single Muslim woman if she returns to her home city of Bombay now or in the reasonably foreseeable future.

The Tribunal then referred to the position of the applicant’s mother in a manner which is not the subject of challenge.
Its general conclusion was:
I am not satisfied that the Applicant has a well‑founded fear of being persecuted for a Convention reason if she returns to India. It follows that she is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
There was in essence one ground of review which was pursued in argument before me. This was framed in an amended application as follows:
B.The Tribunal’s errors.
The Tribunal erred in the application of its jurisdiction by misinterpreting the evidence of the applicant and misdirecting itself as to the meaning of the Convention.
PARTICULARS
1.At page 12 of the Tribunal’s decision, the Tribunal said, “I explained to the applicant that in order to come within the definition of a refugee her fear of being persecuted had to be for one of the five Convention reasons. I explained that in relation to her fear of being persecuted because her husband had left her I would need to be satisfied that Muslim women whose husbands had left them or single deserted Muslim women were a ‘particular social group’ for the purposes of the Convention.”
2.Implicit in the applicant’s claims was the assertion that she had no protector as her husband had deserted, that she was unsafe out in the streets, and being a deserted Muslim woman she would be given no protection by Muslim society.
3.This key integer of no protector was not given adequate consideration by the Tribunal and the emphasis placed by the Tribunal as to the existence or otherwise of a social group was misplaced.
In support of this ground, the applicant’s solicitor focused upon a sentence appearing in the Tribunal’s second paragraph where it dealt with the claim that the applicant was at risk of harassment when she left her home, which I have extracted above at [19]. That sentence said:
However, having regard to the Applicant’s evidence at the hearing before me that she did not really have problems living in the locality until her husband left her in July 1998 I do not accept that there is a real chance that the Applicant will be robbed or killed or otherwise persecuted by Hindus on the streets if she returns to the Hindu locality where she lived in Bombay now or in the reasonably foreseeable future.
It was submitted that the finding made in the second half of this sentence did not address the applicant’s situation in her home locality after her husband had left her in July 1998. In effect, the submission was that the Tribunal had failed to appreciate that she had claimed that her situation on the streets of the locality where she lived had deteriorated significantly as a result of her desertion by her husband. The Tribunal therefore had failed to address a significant integer in her claim, or had applied illogical reasoning by rejecting that claim by reference only to her situation before her husband deserted her.
It was submitted, in the alternative, that if this finding did address her situation in the streets after her desertion by her husband, it was a finding which was arrived at unreasonably within the relevant authorities (c.f. Minister for Immigration & Multicultural Affairs v Eschetu (1999) 197 CLR 611 at [40]‑[44], [101], [124]‑[127], [145]‑[147], [159], [183]‑[188]; Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 at [9], [36]‑[37], [81], [128], [137]; and Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [38]).
However, I do not accept either of these contentions. I do not consider that the Tribunal has failed to address the applicant’s claims that she was significantly at risk of harassment in the streets of her locality as a result of her husband’s desertion and at a degree significantly greater than she was before he deserted her. I consider that the Tribunal has clearly identified this claim, and has addressed findings at it.
It identified the claim in the course of its decision when setting out the applicant’s relevant evidence which I have set out above, and referred again to this evidence in the paragraph preceding the paragraph in which the challenged sentence appears. It again recognised the claim in the very language of the opening clause of the challenged sentence, where the Tribunal referred to “the Applicant’s evidence at the hearing before me that she did not really have problems living in the locality until her husband left her”.
In my opinion, it is impossible to read the Tribunal’s reasoning as not being aware and not addressing her contention that her significant problems in the streets occurred after his desertion. I consider that, reading the challenged sentence in its context of its preceding and subsequent sentences and its opening clause, the Tribunal has specifically addressed her situation in the two year period after the desertion of her husband and before her entry to Australia.
The basis of its adverse conclusion then appears. It drew from the admitted fact in her history that she remained living in the same Hindu location and continued to pursue daytime employment involving unaccompanied travel to work. In my opinion, it was rational and open to the Tribunal to draw from this aspect of the applicant’s history a reason, and even a substantial reason, for rejecting the claim that she was subject to significant harassment in her local neighbourhood after her husband’s desertion.
In my opinion, the fact that the Tribunal did make such a finding, and did so appreciative that her situation in the relevant period was that of a deserted Muslim wife, is apparent from the reasoning in this and subsequent parts of the Tribunal’s reasoning. As well as the rejection in these paragraphs of “a real chance that the Applicant will be robbed or killed or otherwise persecuted by Hindus on the streets” of her home locality, the risks facing the applicant as a deserted Muslim woman were further addressed in its later finding, which I have previously set out above:
I do not accept that there is a real chance that the Applicant will be abused or raped or killed or otherwise persecuted because she is a Muslim woman who has been deserted by her husband if she returns to her home city of Bombay now or in the reasonably foreseeable future.
The Tribunal also in its later reasoning when addressing the contention raised before Mansfield J, expressly recorded that it had earlier dealt with, and rejected, the claim that she was at significant risk in her own locality after her husband’s desertion. It said:
Setting aside her claims that her apartment block where she lived with her family, and where she ran her catering business, was burned down by Hindu extremists in May 1998, that she was robbed, that she feared she might be killed and that she was too scared even to go out of the house in the Hindu locality where she lived ‑ claims which I have rejected above – there is nothing in her evidence or in the independent evidence available to me to suggest that there is a real chance that she will be persecuted for reasons of her status as an unaccompanied single Muslim woman if she returns to her home city of Bombay now or in the reasonably foreseeable future.
I therefore do not accept that the Tribunal failed to address any element in the claims made by the applicant for refugee status which it was required to address, nor do I accept that its conclusions adverse to the applicant were not open to it on the evidence or were attended by some irrationality or unreasonableness giving rise to jurisdictional error.
When reaching my conclusions on the ground which was argued, I must make an assessment of the material which was before the Tribunal as well as its stated reasons. However, I emphasise that it is not my task to decide whether the Tribunal’s conclusion on the applicant’s claims was the correct or preferable assessment of the evidence. Under Australian law the task of performing that assessment is that of the Refugee Review Tribunal and not the Court.
For the above reasons, I am not satisfied that the Tribunal’s decision was affected by jurisdictional error. The decision is therefore a privative clause decision for which relief is barred under s.474(1) and I must dismiss the application.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 13 January 2006