SZJDW v Minister for Immigration
[2007] FMCA 514
•11 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJDW & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 514 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious and particular social group persecution in India – no reviewable error found – application dismissed. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.91R |
| SZDWR v Minister for Immigration [2006] FCAFC 36 |
| First Applicant: | SZJDW |
| Second Applicant: | SZJDX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2161 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 11 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 11 April 2007 |
REPRESENTATION
The Applicants appeared in person
| Counsel for the Respondents: | Ms T Wong |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Court directs that the title of the first respondent be amended to the Minister for Immigration & Citizenship.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2161 of 2006
| SZJDW |
First Applicant
SZJDX
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was signed on 27 June 2006 and was apparently handed down on 11 July 2006. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. There are two applicants, a husband and wife, from India. The principal claims were made by the applicant wife. In these reasons, references to “the applicant” are references to her. The applicants sought judicial review in this Court by way of a show cause application filed on 7 August 2006. In that application they asserted notification of the Tribunal decision on 11 July 2006. On that basis I find that the application to the Court was filed within time.
The background facts relating to the applicants’ protection visa claims and the Tribunal decision on them are set out in the Minister’s outline of written submissions filed on 4 April 2007. I adopt as background for the purposes of this judgment paragraphs 3 through to 17 of those written submissions:
SZJDW (“applicant”) was born in Adilabad, Andra Pradesh, India on 26 May 1983 and is a citizen of India: court book (CB) 11-12. She arrived in Australia on 30 October 2005 as a visitor: CB 13.
On or about 5 December 2005, the applicant made an application for a protection visa to the then Department of Immigration and Multicultural and Indigenous Affairs: CB 1. On 8 March 2006, a delegate of the first respondent refused to grant the applicant a protection visa: CB 39.
On 3 April 2006, the Tribunal received an application for review of the delegate's decision: CB 50, 51. On 12 January 2006, the Tribunal sent a facsimile to the applicant’s migration agent acknowledging receipt of her application and inviting her to immediately send to it any documents, information or other evidence which the applicant wanted the Tribunal to consider: CB 65-68.
On 5 March 2006, the Tribunal received documents and information in support of the applicant’s application: CB 72-91. On 18 April 2006, the Tribunal invited the applicant to a hearing. On 18 May 2006, the applicant attended the hearing, which was adjourned by mutual consent: CB 69, 98, 114.
On 19 May 2006, the Tribunal invited the applicant to a new hearing on 23 May 2006. On 22 May 2006, the applicant informed the Tribunal that she could not attend for medical reasons: CB 114, 117, 118. On 30 May 2006, after consulting the applicant’s doctor about the applicant’s ability to attend a hearing, the Tribunal invited the applicant to another hearing on 5 June 2006: CB 122, 123. On 5 June 2006, the hearing was conducted in the presence of the applicant: CB 126.
On 11 July 2006, the Tribunal handed down its decision to affirm the decision of the Minister’s delegate and notified the applicant of its decision by letter of the same date: CB 131, 132.
On 7 August 2006, the applicant filed an application in this Court for review of the Tribunal’s decision. On 16 October 2006, the applicant filed an amended application for review (“amended application”).
The applicant’s claims
The applicant claims to have a well-founded fear of persecution arising from her inter-religious marriage, involving the Hindu and Islamic faiths. The applicant made the following specific claims in a statutory declaration dated 6 December 2005 (CB 31-33):
a)her mother married a Muslim but that relationship was not successful due to religious differences;
b)the applicants’ families opposed the applicants’ relationship on the grounds of religion;
c)she was beaten several times by her maternal uncles for seeing the second applicant and, on 6 April 2006, eloped after fearing that she would be forced to marry a Hindu boy arranged by her family;
d)her family sought to forcibly bring her back home and separate her from her husband;
e)she continued to hear about her family’s pursuit of her. On 28 September 2005, the applicants were visited by the applicant’s uncles and two policemen, who proceeded to slap the applicant, hit her husband and (unsuccessfully) drag the applicants into their van;
f)before the uncles and policemen left, they told the applicants that they would not let them live if applicants did not return; and
g)the applicants then travelled to Australia after accumulating enough money for the airfare.
The Tribunal’s decision
The Tribunal commenced its reasons for decision by stating the background to the proceedings: CB 138. The Tribunal then summarised the legal principles applicable to determining the applicant’s claims and referred to the claims and evidence presented by the applicant, noting that the applicant stated at the hearing that she feared her husband would be "killed" and their lives were in danger: CB 138-144.
The Tribunal found that (CB 145):
(a)the applicant’s parents’ marital problems were not essentially and significantly caused by their religious differences or the interference in the marriage, if any, by the relatives of the applicant’s parents; and
(b)the applicant was beaten by her uncles on numerous occasions for her decision to, and action in, marrying a Muslim man. On 28 September 2005, the applicants were beaten by the applicant’s uncles and two police officers.
The Tribunal held that the applicant’s uncles did not, and do not, want to kill the applicant’s husband: CB 145. The Tribunal further determined that there was no particular social group called the ‘Hindu‑Muslim couple who eloped’ and that the harm suffered by the applicants was not essentially or significantly related to membership of a particular social group: CB 145-146.
The Tribunal accepted the harm suffered by the applicant at the hands of her uncles and the police was by reason of the applicant's religion. However, the Tribunal determined that the harm that the applicant suffered on 28 September 2005 at the hands of the police officers was private in nature. The police officers were motivated by their friendship with the applicant's uncles and were acting outside their official role. The Tribunal found that adequate state protection would not be denied to the applicant as a result of her uncles’ social or political status: CB 147.
The Tribunal held that the applicants would be able to receive state protection from any private harm which they may fear. The material pertaining to individual governmental corruption in relation to inter-faith marriages did not warrant a finding that the applicants would not receive adequate state protection: CB 148.
The Tribunal found that there was not a real chance in the reasonably foreseeable future of the applicants suffering Convention-related harm for which they would not be able to obtain adequate state protection: CB 148. Thus, the applicants were not persons to whom Australia has protection obligations under the Refugees Convention: CB 148.
The Tribunal affirmed the decision of the Minister’s delegate not to grant the applicants a protection visa: CB 148.
I conducted a show cause hearing in this matter on 27 November 2006. At that time the applicants relied upon an amended application filed on 16 October 2006. That application set out two grounds of review. The first was that the Tribunal’s decision lacked the required satisfaction in terms of s.91R of the Migration Act 1958 (Cth) (“the Migration Act”) with regard to the real chance test of future persecution. The second was that the Tribunal failed to assess the applicants’ refugee claims under the Convention in a constructive and articulate manner. The particulars to these grounds made reference to certain passages from the Tribunal decision.
The application was at that time supported by two affidavits by the first applicant. The first filed on 7 August 2006 annexed a copy of the Tribunal decision. The second filed on 16 October 2006 annexed a transcript of the Tribunal hearing conducted on 5 June 2006 and offered a commentary on the significance of particular passages in the applicants’ opinion. The applicants also relied on written submissions filed on 21 November 2006. Those were apparently prepared with the assistance of Mr Chandra Jayawardena who at that time sought to appear on behalf of the applicants. I was unable to hear Mr Jayawardena because at that time there was a difficulty concerning his practising certificate. The applicants told me today that Mr Jayawardena has not since that day assisted them.
At the show cause hearing I decided that there were only two issues meriting a final hearing in this case. I ordered that the Minister show cause why relief should not be granted in relation to the amended application filed on 16 October 2006 as augmented by the written submissions filed on 21 November 2006 limited to the following issues:
a)whether the Tribunal erred in finding that the claimed particular social group of Hindu Muslim couple who eloped is extrinsically identified by the shared fear of persecution (CB 146); and
b)whether the Tribunal erred in considering past harm suffered as private in nature rather than as the actions of rogue officials (CB 147).
I listed the matter for a final hearing today and required written submissions from both the applicants and the Minister. No further written submissions were filed by the applicants.
The Minister’s submissions were, as I have already noted, filed on 4 April 2007, being the last day for the filing of those submissions. The applicants denied receipt of the Minister’s submissions and sought an adjournment. I declined that request on the bases that they had themselves not complied with the order for the preparation of written submissions, the submissions had been served (see exhibit R1) and the submissions had been read to them today with the assistance of the interpreter. As an additional precaution, I required Ms Wong to present the Minister’s submissions first and gave the applicants the opportunity to respond.
The Minister submits that neither of the issues identified at the show cause hearing establishes jurisdictional error. In relation to the first issue, the Minister submits that the Tribunal did not err in finding that the particular social group identified by the applicants themselves was extrinsically identified by a shared fear of persecution. Secondly, the Minister submits that even if the Tribunal did err in its consideration of the particular social group, the decision is independently and wholly supported by the Tribunal’s finding that effective state protection would be available to the applicants.
In relation to the second issue, the Minister submits that the Tribunal did not err in considering the past harm suffered by the applicants as private in nature. The Minister submits that whether harm is suffered at the hands of non-state agents or rogue state officials makes no difference in relation to the test to be applied for the purposes of the Convention and the Migration Act. In both circumstances, in the Minister’s submission, it is necessary to consider whether effective state protection is available. The Minister relies upon the decision of the Full Federal Court in SZDWR v Minister for Immigration [2006] FCAFC 36.
The applicants’ submissions incorrectly asserted that the particular social group considered by the Tribunal was a creation of the Tribunal. The court book, which I received as evidence, contains a letter from the migration agents then assisting the applicants to the Tribunal dated 5 May 2006 which puts forward a particular social group claim in the terms considered by the Tribunal (CB 72 and 73). The Tribunal dealt with that claim in the following terms (CB 145):
The relevant question for the Tribunal is whether the harm they suffered is essentially and significantly Convention-related. Whilst the Tribunal is satisfied that religion is the essential and significant reason for that harm, for the reasons explained below, the Tribunal is not satisfied that the harm is for reasons of their membership of a particular social group called “Hindu-Muslim couple who eloped” as the Tribunal does not accept there is such a particular group in India.
The Tribunal then went on to consider country information which it thought supported its conclusion. The Tribunal also relied upon two decisions of the High Court concerning the consideration of particular social group claims. The Tribunal continued (CB 146):
The claimed particular social group of “Hindu-Muslim couple who eloped” is intrinsically identified by the shared fear of persecution. The Tribunal is satisfied that the characteristic or attribute common to all members of the ‘group’ is in fact the shared fear of persecution and consequently, it is not a “particular social group”.
The Tribunal again referred to independent country information it considered relevant to that conclusion. The Tribunal completed its consideration of that claim by finding:
In the light of those comments and in consideration of the evidence as a whole, the Tribunal is not satisfied that any harm that the couple suffered, is essentially and significantly related to membership of a particular social group.
Whether the postulated social group of “Hindu Muslim couple who eloped” is extrinsically identified by a shared fear of persecution is a debatable proposition. It is arguable that such a social group may be recognised in India independently of any fear of persecution. Essentially, however, it is for the Tribunal to determine whether it accepts that a postulated particular social group exists. An error of fact by the Tribunal in coming to a conclusion on that question would not establish a jurisdictional error unless the fact were a jurisdictional fact.
The Tribunal accepted that the applicants had suffered serious harm by reason of their religion. It was therefore necessary for the Tribunal to consider whether state protection would be available to them. The Tribunal might have considered whether the applicants were members of a particular social group comprised of Hindu and Muslim couples whether or not they had eloped. But that would probably have added nothing to the claim based upon religion. I accept that the Minister has satisfied me that no jurisdictional error is disclosed in relation to the Tribunal’s consideration of the particular social group claim.
Even if jurisdictional error in this aspect of the Tribunal’s reasons were to be established, I accept the Minister’s submission that the Tribunal decision is independently and completely supported by its finding on effective state protection.
In relation to the second issue, the Tribunal considered the question of state protection (CB 146 to 148). The Tribunal’s consideration was thorough and careful. That consideration extended beyond the simple question of religion. What concerned me at the show cause hearing was the Tribunal’s statement at page 147 of the court book that the applicants’ asserted inability to obtain police protection because of the influence of certain of their uncles had the consequence that whilst the harm suffered by the couple was Convention-related, it was private in nature. The Tribunal appeared to accept that police officers had been distracted from the proper performance of their duties in the past because of the influence of the applicants’ relatives. The Tribunal stated:
The Tribunal is satisfied that the conduct of the police officers was outside their ‘official’ role. The Tribunal also notes that the police officers did not arrest the husband, which arguably renders support for that conclusion. Had they been acting in their official capacity, the Tribunal is satisfied that it is implausible that the two officers would have left after the neighbours intervened.
The Tribunal then went on to consider whether in the future effective or adequate state protection would be available from the Indian authorities. The Tribunal concluded that it would.
I accept the Minister’s submission that the approach taken by the Tribunal was the proper one. The Full Federal Court decided in SZDWR at [14] to [18] that the proper approach when dealing with claims of harm at the hands of rogue state officials is to consider the claim in the same way as a claim of harm at the hands of non-state agents. In other words, provided that a decision maker is satisfied that the state itself has not had a hand in the harm or has condoned it, the issue then becomes whether effective state protection is available, whether the risk of harm flows from the actions of non-state agents or rogue state officials.
In the light of that authority, I see no particular significance in the Tribunal’s statement that the harm suffered by the couple was private in nature. The Tribunal was in effect reaching a conclusion that the Indian state was not complicit in the actions of their police officials. The Tribunal considered properly and thoroughly whether in the particular case the applicants would have access to effective state protection in India should they return there. The Tribunal concluded that they would. I find that there was no jurisdictional error in this aspect of the Tribunal’s reasoning.
In other respects I agree with the Minister’s written submissions. I note in that regard that pursuant to rule 44.13(2) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) the applicants were confined to the grounds specified in order 1 made by me on 27 November 2006.
I conclude that the applicants have failed to demonstrate jurisdictional error in the decision of the Tribunal. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will direct that the title of the Minister be amended to the Minister for Immigration & Citizenship.
Costs should follow the event in this case. The Minister seeks costs in the sum of $5,000. The applicants did not wish to be heard on costs. I will order that the applicants pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 16 April 2007
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