SZFIY v Minister for Immigration

[2005] FMCA 1915

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFIY & ANOR v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1915

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant protection (Class XA) visas – applicants are citizens of India – credibility – no reviewable error.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.424

Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559

First Applicant: SZFIY

Second Applicant: SZFIZ

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File No: SYG 3787 of 2004

Delivered on: 13 December 2005

Delivered at: Sydney

Hearing date: 13 December 2005

Judgment of: Scarlett FM

REPRESENTATION

Applicant: In person

Counsel for the Respondent: Ms Clegg

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Leave to join the Refugee Review Tribunal as a party to the proceeding.

2. The Refugee Review Tribunal is joined as Second Respondent to the Application.

3. The Application is dismissed.

4. The Applicants are to pay the First Respondent’s costs fixed in the sum of $6,000.00.

5. I allow six (6) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3787 of 2004

SZFIY

First Applicant

SZFIZ

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal made its decision on 29 October 2004.

2. The Tribunal handed down its decision on 23 November 2004. The decision of the Tribunal was to affirm a decision of a delegate of the Minister for Immigration and Multicultural Affairs not to grant protection visas to the Applicants.

Background

1. The Applicants are citizens of India who are husband and wife. They arrived in Australia on 26 June 2004 and applied for protection (Class XA) visas on 22 July 2004. A delegate of the Minister refused their applications on 4 August 2004.

2. On 27 August 2004 the Applicants applied to the Refugee Review Tribunal for review of that decision. The Tribunal invited the Applicants to attend a hearing on 13 October 2004. The Applicants were not able to attend that hearing because the wife was unwell.  She was at the time pregnant and sought an adjournment on the basis of her illness.  She produced a medical certificate indicating that she would be indisposed from 10 October through to 15^tOctober.

3. The Tribunal agreed to the request to postpone the hearing and invited the Applicants to attend a further hearing on 20 October 2004. The Applicants attended that hearing and both gave oral evidence.

4. They claimed that they had a well-founded fear of persecution by reasons of their political opinion and their rights. The Applicants gave evidence that they fear persecution because the wife is a member of a scheduled caste whilst the husband is a member of the Hindu arora caste. On 18 June 2003 they were married. Both of their families disapproved of the marriage. One family supported the Congress Party, the other family supported the BJP. 

5. Nevertheless, the husband and wife were married because they loved each other and wished to spend their lives together, and quite courageously they put up with the difficulties that they received from each side and also they pointed out that they had received threats from members of the Congress Party on one side and the BJP on the other.  They relocated to another part of India called Haridwar where they lived for a couple of months. They returned home. The Congress Party had taken power in the elections and a member of parliament actually conducted a campaign against them seeking the members of the community should boycott the families of the Applicants and threatened them with false charges. They said that they were held in detention for two days at the police station and were only released after a bribe had been paid.

6. Fearing further trouble they decided to move to another town called Ludhiana. They reported that on 6 March 2004 whilst travelling on a motor scooter they were chased and verbally abused by people in a car. Whilst they were not seriously injured they did lodge a complaint with the police, but it was ignored. They travelled to Europe in April of 2004 and returned to India on 12 May. By that stage the Congress Party had won political power in India and they said that they were then threatened by Congress Party supporters, particularly as the wife had married into a family that supported the BJP.  They said they were in fear of their lives, that they suffer abuse, criticism and threats from both BJP and the Congress Party, and they fear that they will be harmed for contracting into an inter-caste marriage.

The Tribunal’s findings and reasons

1. The Tribunal member took evidence from both parties and raised the question of relocation. The Tribunal in its decision accepted that the Applicants were citizens of India and that they were outside their own country. The Tribunal considered independent country information and did accept that people from scheduled castes can experience discrimination in India and could expect abusive treatment from some people because of an inter-caste marriage. The Tribunal was of the view that such instances would be random and not condoned by the authorities. The Tribunal put to the Applicant that she knew that her parents opposed her marriage and yet she still went ahead with the marriage and in her home State, which indicated to the Tribunal that she did not take literally any threats that her parents may have made to kill her.

2. The wife told the Tribunal that she did not take the threats seriously until after the motor scooter incident in early March 2004. The Applicants remained in Ludhiana for several weeks and then they left for Europe.  They returned in May and then six weeks later they left for Australia. The Tribunal did not accept that the BJP was opposed to inter-caste marriage. The Tribunal accepted that the Applicant wife's family, including her uncle, may well have been in opposition to the marriage, but rejected that the Congress Party of itself was targeting the Applicants.

3. The Tribunal was not satisfied about the details of the harm that had been provided or more correctly not provided by the Applicants. The Tribunal found that the applicants' testimony about their detention was vague, and in fact was not satisfied with the claim of detention, and generally was not satisfied of the Applicants' evidence. The Tribunal found the Applicants to be vague in their claims and at times given to exaggeration. The Tribunal expressed doubt about a number of factual aspects of the Tribunal's claims. The Tribunal was of the view that animosity towards the Applicants, which is accepted, from their families was a private matter and that there was no convention connection.

4. The Tribunal did find that to avoid the harm they said they feared that it would be possible for the Applicants to relocate within India, and it did not accept that the Applicants had attempted to relocate permanently within India.  In all the Tribunal concluded that it was not satisfied that the Applicants were persons to whom Australia owes a protection obligation.  In their Amended Application for review filed on 29 March the Applicants set out a number of grounds of review.  First, they say that the Tribunal did not follow proper procedure in connection with the wife's severe pain in relation to her pregnancy.

5. The Tribunal did agree to her request to an adjournment, especially bearing in mind the matters contained in the medical certificate, and adjourned the hearing until a date a number of days after the final date mentioned on the medical certificate. Whilst it is alleged that at the hearing when the wife did attend that she was in severe pain and told the Tribunal that she was in pain, thereby giving the inference that she could not properly present her case, there was no evidence provided, there was no affidavit provided or any further medical evidence and indeed the Applicant wife did not attend the hearing.

6. The Tribunal is the decider of facts. The Applicants complain that there are a number of factual matters that were incorrect. That is no more than a merits review request and not one that the Court is able to grant relief for.  It is not a jurisdictional error.  One of the claims that the Applicants make is that the Tribunal made a factual error in respect of their stay in the town of Haridwar.  Even a factual error is not a ground for finding that there is a jurisdictional error.

7. The third ground refers to a spelling error, which is certainly not a jurisdictional error, and an error in geography. These are factual matters that a court conducting the judicial review cannot take into account.  The Applicants claim that the Tribunal did not give them the opportunity to produce evidence, but both Applicants attended the hearing.  They did have an opportunity to present their case. They had obtained free legal advice through the Legal Advice Scheme The Respondent's counsel noted that they had been advised in writing by the Tribunal that they should provide documents and any other evidence they wanted the Tribunal to consider.

8. The Applicant husband who did attend court took exception to the fact that the Tribunal required evidence to be brought, but it is up to the Applicants to make out their case.  I refer to Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 through the judgment of Kirby J at p.596. The Applicants also raised further factual errors, but as I said that is not a ground for jurisdictional error; the Court cannot conduct a merits review. The Applicants claimed that the Tribunal did not consider the fact that the wife's problems arose because the wife was a member of a scheduled caste and said that the Tribunal member did not consider the Applicant to be a member of a particular social group.

9. In that the claim is made that the very fact of being a member of a scheduled caste is a ground for seeking protection under the Convention, the Respondents note and correctly that that was a ground that was not raised before the Tribunal. The fact that there was an inter-caste marriage was clearly a matter that was considered by the Tribunal, particularly at p.119 of the Court Book, and the Tribunal acknowledged the problems that can arise where people from different castes in India do marry.  The final ground in the application is in its decision the Tribunal said that:

   The Tribunal is not satisfied of any harm, but if anybody gives you threat to kill you, you can't stand in the front of that person to see that he will kill or not or let him kill first.

10. In short that is no more than an assertion that the Applicants are refugees and merits review is something that the Court will not consider. I am not satisfied that the Applicants have shown any jurisdictional error, any error of law or any procedural error or denial of natural justice of the Tribunal decision. It must follow that the application will be dismissed.

11. There is an application for costs and the amount sought is $6,000.00.  The case is unusual in that there are two separate applications. What happened however was that one of the Applicants in the case SZFIY was pregnant at the time of the RRT hearing. At the time they commenced their proceedings there was not a claim in respect of their two children who were not born until 10 December 2004.  There was a need therefore for a separate protection visa application which led to a separate Refugee Review Tribunal hearing. 

12. Again because of the time limits that apply under sub-s.477(1)A the Applicant parents were obliged to commence their own proceedings before they were in a position to commence the proceedings on behalf of the children.  Fortunately the proceedings have been combined.  Lloyd Jones FM in whose docket the children's application came made orders transferring these proceedings to this Court so that they could be heard at the same time as the parents' application.  As a result the proceedings were heard together, and even though separate decisions have been required in the main that is more an administrative problem than anything else.

13. It was of course quite proper for the proceedings to be heard together and it would have been a waste of the Court's time and a waste of public money to have heard the proceedings separately.  In my view in proceedings SZFIY & Anor v. The Minister there should be an order for costs and the amount sought of $6,000.00 includes counsel's fees. It is within the scale envisaged by the Federal Magistrates Court Rules, although the Applicant husband has said that even though he is in employment he is not in a position to pay those costs. This is hardly surprising as he has his wife and two young children who are only just 12 months old to support.

14. The Court is well aware of the costs of supporting young children.  This is not a ground for not making a costs order.  It is a ground for allowing time to pay, and I propose to allow time to pay the costs.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  23 December 2005