SZJQI v Minister for Immigration - [2008] FMCA 656

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJQI v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 656

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZJQI”.

Migration Act 1958 (Cth), ss.91X, 424A

Applicant A & Anorv Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225
Australian Broadcasting Tribunal v Bond [1990] HCA 33
Minister for Immigration v Khawar [2002] HCA 14
NADH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 830
NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Ponnudurai v Minister for Immigration & Multicultural Affairs [2000] FCA 91
Ram v Minister for Immigration & Ethnic Affairs & Refugee Review Tribunal (1995) 57 FCR 565
SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80
SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231
Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1044

Applicant:

SZJQI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 3244 of 2006

Judgment of:

Lloyd-Jones FM

Hearing date:

25 October 2007

Delivered at:

Sydney

Delivered on:

30 May 2008

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Counsel for the Respondents:

Ms L Clegg

Solicitors for the Respondents:

Blake Dawson

ORDERS

The name of the first respondent be amended to read “Minister for Immigration & Citizenship”.
The application filed on 7 November 2006 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3244 of 2006

SZJQI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

The applicant is a female who was born in 1970 in Ahmedabad, Gujerat, India. The applicant claims she married in 1995 and that her marriage lasted less than four years. She claims her husband and his family forced her to end the marriage when she was four months pregnant, as he was involved with a Muslim girl whose family threatened to harm and kill the applicant.
The applicant claims that during her marriage she was tortured by her husband and his family. She claims she was threatened several times and forced to sign divorce papers against her will by her husband’s family and that the police and other authorities cannot help her.
The applicant claims she has a degree from Gujarat University and a diploma in computers and financial accounting. She has a daughter who was born in 1999 and she was divorced on 14 October 2005. She claims that she is of the Hindu faith. She states that she speaks, reads and writes both Gujarati and English.
The applicant claims she faces social discrimination, harassment and persecution from her community and that she was persecuted because she is a woman of failed marriage.
The applicant arrived in Australia on 7 March 2006 and applied to the Department of Immigration for a Protection (Class XA) visa on 21 April 2006. A delegate of the Minister refused to grant the visa on 13 May 2006 and the applicant applied to the Refugee Review Tribunal (“the Tribunal”) on 9 June 2006 seeking a review of the delegate’s decision. It is that Tribunal decision (reference number 060500394) that is the subject of judicial review in this Court.
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A” and is the only evidence before the Court.

Consideration

Both Counsel elected to address the issues in the following order:
a)the claims made by the applicant in her visa application and at the Tribunal hearing of 7 August 2006;
b)an analysis of the Tribunal decision; and
c)the grounds of review.
The applicant’s claim has two elements:
a)that she would suffer persecution because of her membership of a social group in India as a result of her estranged marriage and that she has a child; and
b)that she would suffer persecution by her husband and her husband’s girlfriend’s family.
The parties or not in dispute over these two claims but rather whether the claims are sufficiently serious to amount to persecution in a Convention sense. Mr Karp, for the applicant, indicates that the applicant made these claims of persecution in the original visa application:
Since I have a status of a single woman with a child my re-marriage is almost impossible because especially in my state of Gujarat, woman in my situation have to spend their lives, like me, with no help from other sources.
I had to spend my life as a criminal or sinister in the community. Just because of my broken marriage and I was on my own. Various faces of discrimination I had to suffer and I was barely able to live. I live for my daughter believing if I die what will happen to her. (CB 8)
The society itself was persecuting me because of me being a woman who had a failed marriage. I was looked by the society as a bad person and I am unable to get on my feet independently even if I wanted to do so. I found a job for a certain time for survival in the city but in the community I was treated like a worst person. (CB 9)
The society kept torturing me mentally and they kept abusing me and swearing at me time to time to keep my morale low and to down grade me from my present mental state. Thousands of women die in this situation, but I was able to survive due to my love and responsibility to child. My parents were not rich so they could not help me much. (CB 10)
Under the sub-heading “Findings and Reasons” the Tribunal states the following in relation to the Tribunal hearing:
Asked why else she believed she was a refugee, she claimed that socially people were not willing to accept her and her life was in danger so she could not go there again. (CB 147.2)
Mr Karp referred to s.91R(1) of the Migration Act 1958 (Cth) (“the Act”) which states:
91R Persecution
(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
Mr Karp argues that this kind of victimisation can involve persecution as it involves psychological harm, social isolation and ostracism. A higher level for a significant period can amount to harm sufficiently serious to amount to persecution.
In support of this contention, Ms Karp referred to SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80 per Madgwick and Conti JJ at [21]-[23]. He argues that in this matter the claim was clearly and sufficiently raised. The applicant filled out her own visa application form although she was not legally trained, and the conduct she complained about clearly implied persecution whereas the Tribunal considered it did not.
Mr Karp also contends that the “Invitation to Comment on Information” letter forwarded to the applicant on 8 August 2006 (CB 77-101) contained information which did not address the applicant’s claim of being a single woman with a child who faced continued public ostracism. Mr Karp argues that the Tribunal was wrong in relying on the information which it did. He submits that the Tribunal is not the sole arbiter on the contents and meaning of a document and relied on Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1044 per Allsop J and NADH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 830 per Allsop J.
Ms Clegg, for the first respondent, submits that the applicant’s claim of being a member of a social group is more appropriately classified as a claim of societal discrimination. Ms Clegg referred to the applicant’s protection visa application:
I have the status of a single woman with a child. My remarriage is almost impossible. Women in my situation have to spend their lives like me with no help from other sources. (CB 8.2)
Contrary to Mr Karp, Ms Clegg contends that this is a claim that the Indian government does not do enough to assist women in the applicant’s position. It is not a claim about persecution. Ms Clegg referred to the following passage in the same document:
Just because of my broken marriage and I was on my own. Various faces of discrimination I have to suffer and I am barely able to live. I live for my daughter believing that if I die what will happen to her. (CB 8.6)
Ms Clegg concedes that the applicant suggests that she is unable to subsist which might amount to a claim of persecution under s.91R of the Act. However, the Tribunal dealt with that when it made a finding about the applicant having been an educated woman and in fact able to work in a quite reasonable job after her divorce. The protection visa application continues and contains the following passages:
I face social discrimination, harassment and persecution in the hands of elements in the society.
My fundamental rights were violated.
I have collected a number of reports and attached to let you know what is the state of work in my situation in India.
…the women are facing discrimination every day in the society and the government is unable to do anything to protect the women.
The society kept torturing me mentally and they kept abusing me. (CB 9-10)
Ms Clegg submits that there is no evidence about the applicant being persecuted by society. Ms Clegg concedes that there were specific claims about persecution in relation to particular people and referred to the following passage in the Tribunal decision:
The Tribunal asked the applicant why she believed she was a refugee and in response she claimed that her husband had an affair with a Muslim girl and her brother tortured her and she had no respect. The Tribunal asked her how he tortured her, and she claimed that he used to threaten to kill her so she had to change job. Asked why he threatened to kill her, the applicant claimed that she had no place to live so she wanted to live with her husband but he did not want her to go back. (CB 119)
In response to Mr Karp’s reliance on SCAT which he says supports the proposition that psychological harm can amount to persecution. Ms Clegg contends that SCAT is entirely distinguishable from the facts in this matter. SCAT was a case where the Tribunal was criticised by the Federal Court for failing to take into account evidence of a nun about a Mandayan family which had fled Iran and would face significant psychological harm if forced to return. Ms Clegg acknowledged that Mr Karp had clearly identified and stated the differences between SCAT and this matter. However, she submits that in SCAT there was extensive evidence before the Tribunal about the sort of discrimination the applicants would face if forced to return to Iran.
For example, the Tribunal in SCAT had expert evidence about possible psychological harm which appears to have been overlooked. It was a claim about serious persecution of people in Iran and their religious faith. The experts stated that a return to Iran would impose severe psychological harm on those people. The Court noted that the Tribunal did not refer to this information and should have considered whether psychological harm would have or could have amounted to persecution. Ms Clegg contends that SCAT was about the overlooking of evidence but does not stand for the proposition that a claim for emotional hurt is a claim that must be met separately. Mr Karp referred to persecution involving systematic and discriminatory conduct as required by s.91R(1)(c) and suggested that discrimination amounts to persecution. Ms Clegg contends that what constitutes persecution is set out in s.91R(2) and that it requires serious harm. It is not limited by any definitive definition but serious harm must nevertheless be established.
Ms Clegg argues that Mr Karp’s argument fails at the first hurdle because s.91R(2) requires there to be a threat to a person’s life or liberty. She concedes that psychological harm which threatens a person’s life could amount to persecution. However in this case, the first element of the applicant’s claim about discrimination in society is not a claim about persecution at all. Ms Clegg acknowledges that the Tribunal identified this as a claim and then rejected it on a number of grounds. She submits that the applicant’s argument that this claim was not addressed cannot be sustained.
Both Counsel indicated their intention to go through the “Findings and Reasons” in order to establish whether the applicant’s claims were satisfactorily addressed. Both agreed that the appropriate starting point was this passage in the Tribunal decision:
That said, however, the Tribunal does accept that she separated from her husband when she was four months pregnant in 1999 as he had an affair with a Muslim girl. In these circumstances, the Tribunal is willing to accept that the applicant is a member of a particular social group which is defined in a number of different ways by the applicant including as “millions of Indian women, either divorced or widowed”, who have been mistreated or fear mistreatment, or even more generally as women in India with a child who is separated from their husband. The issue then for the Tribunal is whether the applicant has a well founded fear of serious harm amounting to persecution for a convention reason on this basis. (CB 147.9)
Mr Karp then objected to the paragraph immediately after:
In regard to this claim, the applicant claimed that the husband tortured her while they were together. She also claims his Muslim girlfriend and her family have threatened to kill her unless she signed the divorce document (which she claimed she did but he did not) and more generally that she feared as a single mother with a child the community would also persecute her. (CB 148.1)
The Tribunal then discussed the applicant providing information about dowry disputes. It stated that the advisor also submitted that there was a real chance the applicant was at risk of her life from the husband’s girlfriend’s family and she had previously suffered persecution. The Tribunal discussed the fact that there had not been a legal divorce and religious issues.
The Tribunal continued:
However, the Tribunal has not from the claim made by the applicant been able to satisfy itself that because the applicant as a member of the above mentioned or any particular social group she has a well founded fear of serious harm amounting to persecution for a Convention reason. (CB 148.4)
Mr Karp pointed out that the Tribunal does not give explain this finding.
The Tribunal then moved on to a completely different subject:
Further the Tribunal notes that Australian case law has held that a particular social group is a collection of people who share a certain characteristic or element that unites them and distinguishes them from society at large…(CB 148.5)
Mr Karp contends that this paragraph is disjointed. Rather than giving reasons for its conclusions, the Tribunal discussed the legal definition of the term “particular social group” and quoted Burchett J in Ram v Minister for Immigration & Ethnic Affairs & Refugee Review Tribunal (1995) 57 FCR 565 at 569 to the effect that to meet the Convention definition of a refugee, a person who is a member of a particular social group must be condemned in the eyes of his or her persecutors.
Mr Karp referred to the next paragraph in the “Findings and Reasons” which states:
Accordingly, the Tribunal does not accept the advisor’s definition of a particular social group that the applicant is one of millions of women either divorced or widowed who are being persecuted or mistreated as a social group for thousands of years in India by the male domination due to religion and social conditions in India. (CB 148.8)
He submits that although the Tribunal did not accept the advisor’s definition of “particular social group” here, it did accept it earlier in its reasons (CB 147.8). Mr Karp contends that the Tribunal did not appear to reject that women in India who are separated from their husbands and with children do not form a particular social group (CB 148).
Mr Karp submits that the Tribunal then moved to a new issue:
Moreover, the Tribunal puts to the applicant its letter of 8 August 2006 [reproduced at CB 77] that there is a lot of country information that indicates that while 39% of Indian women in particular have considerable difficulties, this is not the same case for women who are literate. (CB 148.8)
The Tribunal then discussed the applicant’s university qualification with her and that she held a number of positions since separation from her husband. The Tribunal then discussed what it said in its s.424A letter that India has a population of over one billion people and that the applicant is part of the Hindu majority. Mr Karp submits that the Tribunal asserted rather than reasoned that it was unable to satisfy itself that:
a)Convention related threats have been made against the applicant;
b)Because of her particular social group, she would be subject to serious harm for a Convention reason; and
c)There is an absence of state protection.
The Tribunal then concluded that the applicant’s claim regarding her particular social group was not Convention related but came about because of her failed marriage. It also found that her claim of harm from the Muslim girl’s family was personal and also not Convention related. Any lack of protection was also not Convention related. The Tribunal found that if she were to relocate, she would not have a Convention related fear “either from her husband, his girlfriend and her family (including because they are Muslims), or any other elements of society” (CB 158.9).
Ms Clegg agreed that a Tribunal decision must be read beneficially and that it is inappropriate for a Court engaged in judicial review to excessively scrutinise the decision. She acknowledged that the decision contains typographical errors and that some sentences are repeated. However, Ms Clegg submits that the decision is coherent and the Tribunal went through its process in a logical manner. Ms Clegg acknowledged that there is no dispute with the Tribunal finding that the applicant was a member of a particular social group defined as being a woman (either divorced or widowed) or a woman in India with a child who had separated from a husband.
Ms Clegg submits that the Tribunal was prepared to entertain the applicant’s assertion that there was such an identifiable group of people in India and whether she had a well-founded fear of persecution on that basis. Ms Clegg agrees that the Tribunal directly identified two elements of the applicant’s claim:
a)That her husband tortured her and her husband’s girlfriend’s family threatened to kill her; and
b)That she fears persecution as a single mother in the community.
The Tribunal observed that these elements did not relate to a dowry.
The parties disagree in relation to the part of the Tribunal decision quoted at [23] above. Ms Clegg contends that the Tribunal was logical in concluding that the applicant does not fall within the definition of “refugee” in the Convention and that it correctly identified and discussed two legal issues in its discussion of Ram.

Ms Clegg further submits that the discussion of Applicant A & Anorv Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 and Ram was the Tribunal acknowledging that the applicant needed to be a member of an identifiable group. Ram stands for the proposition that the persecution or conduct imposed upon a punitive refugee must have occurred because the person is a member of a particular social group. The Court concluded that an attempt to seek money from a wealthy person in India was not because he belonged to a particular social group:
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 him being one of those jointly condemned in the eyes of the persecutors so that a fitting use of language to say that it is “for reason of his membership of that group”. (CB 148.7, emphasis added)
Ms Clegg submits that there must be a connection between the persecutory conduct and membership of the social group.
Ms Clegg submits that this is an important point because what the Tribunal was considering was whether or not the applicant was persecuted for membership of a particular social group or because of her failed marriage. The Tribunal did not find a Convention nexus between the two. The Tribunal then stated:
Accordingly, the Tribunal does not accept the advisor’s definition of a particular social group. (CB 148.8)
Ms Clegg submits that if the statement is read in isolation it may appear contradictory to the earlier acceptance that the applicant is a member of a particular social group. She submits that this paragraph should be read as the Tribunal not accepting that the applicant is going to be persecuted because she is one of millions of women, either divorced or widowed, mistreated as a social group. She also submits that the reasoning in relation to nexus is also relevant to whether the applicant has been treated in a particular way because she is a member of this group. Ms Clegg argues that this goes to the relevant issue because what the Tribunal rejected was the assertion by the applicant’s advisor.
In the Tribunal’s “Invitation to comment on information” letter to the applicant’s advisor of 8 August 2006 is a large amount of country information which the Tribunal believes to be the reason or part of the reason for deciding that the applicant was not entitled to a protection visa (CB 77-100). The advisor’s response of 5 September 2006 states:
The applicant is of the view that this information has nothing to do with her claims as one of the millions of Indian women, either divorced or widowed, who are being persecuted and mistreated as a “social group” for thousands of years in India by the male domination due to religion or social conditions in India. (CB 104)
The passage in the Tribunal’s decision indicating that it did not accept the advisor’s definition may be misleading in the way it is expressed and the use of the word “definition”. However when read in conjunction with the earlier part of the decision, there is little doubt that the Tribunal member accepts that the applicant is a member of a particular group and has considered whether there is a nexus between both elements of the complaint. It rejected a Convention nexus because of the principle identified in Ram and rejected the advisor’s assertion that the applicant would be persecuted because of male dominance, religion and societal conditions in India.
The Tribunal notes that the applicant is highly qualified and had held a number of accounting positions. These facts also supported its rejection of the advisor’s assertion. Ms Clegg submits that it sits coherently with the chain of reasoning if the passage is read as not being a rejection of the definition of “particular social group” but rather a rejection of the entire proposition.
The Tribunal referred to its s.424A letter which contains independent country information dealing with a range of matters connected with the treatment of women in India. It dealt with literacy between the genders, what legislation protects women, gender imbalance, marriage and dowry issues and domestic violence. The Tribunal said that because the country information distinguished between educated and uneducated women, an educated woman such as the applicant would not be subject to serious harm and there is no absence of state protection on this basis.
Ms Clegg submits that there was information there to suggest if the applicant went to the authorities, she would be protected from abuse or domestic violence. This was put to her in the s.424A letter. Ms Clegg acknowledges that there is no specific information about the applicant’s claim that single mothers in India are treated differently nor was this put to the applicant in these terms. There is no reason why the applicant would be subject to persecution or denied state protection if she was. Ms Clegg submits that this was an appropriate inference for the Tribunal to draw from that information.
Ms Clegg also submits that the applicant’s complaint is that the Tribunal did not refer to her particular social group and, therefore, it should not have relied on the country information to form the conclusion it did. She submits that contrary to the applicant’s argument which relies on NADH, the Tribunal can legitimately draw its own inferences from the country information. NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 states that it is a matter for the Tribunal what it makes of the information and to take issue with the inferences the Tribunal drew is to engage in merits review:
[11] The appellants’ submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as ‘country information’. The Tribunal summarised in its reasons for decision a significant quantity of material it saw as relevant to the task it had to perform. This included material from the United States of America State Department, DFAT and various international news services and publications. To some extent, this material could have been considered to be helpful to the appellants’ case, but it is certainly true that the Tribunal relied on some of it in making findings adverse to the appellants. By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.
Ms Clegg submits that the applicant was on notice of the inference that the Tribunal was going to draw from the country information and that this course was open and proper. The Tribunal drew the inference that the applicant would not be persecuted in India because she was a single woman particularly given her specific circumstances.
Mr Karp referred to the s.424A letter sent to the applicant:
6.384 A report commissioned by the office of the United Nations Resident Coordinator in India in 2001 entitled “women in India how free? How equal (the 2001 UN Report) states that “54% of Indian women are literate as compared to 76% men”.
The report states:
At the time of the 1991 census, only 39% of Indian women could read and write. According to the census of India 2001, the female literacy rate had gone up to 54%. In 1951, the Indian female literacy rate for entire population over 5 years of age, was barely 9%. In the past 50 years, therefore, it had increased sixfold. Despite this progress, close to 190 million Indian women lacked the basic capacity to read and write. Female literacy levels vary dramatically between states. (CB 77)
Mr Karp contends that the letter failed to address the applicant’s situation, her claims or the harm she experienced. For example, the statement that 39% of Indian women face considerable difficulties was not mentioned. A question arises whether other women outside that percentage face Convention related difficulties which amount to persecution. Mr Karp referred to Ponnudurai v Minister for Immigration & Multicultural Affairs [2000] FCA 91 at [12]-[13]:
[12] Having negatived, not that the applicant's fear of persecution was well-founded in a real chance of it, but that "he will be arrested", the Tribunal continued by referring to a suggestion it had derived from the evidence "that those most at risk of arrest are young Tamils, particularly those who have recently travelled from the North or the East". But the expression "those most at risk" and the word "particularly" indicate how far the Tribunal had strayed from the path of decision according to law. The question was not whether the applicant was most at risk, or whether he was one of those particularly at risk, but whether his fear of persecution was well-founded in a risk sufficiently tangible to enable it to be said that there was a real chance of persecution. The Tribunal went on to refer to the submission of the applicant's representative, which did relate to the true question, put in reliance on "information suggesting that all Tamils are at risk of being arrested and that all Tamils are regarded as potential LTTE members", and urging that, a fortiori, a young male Tamil with the applicant's antecedents would be at risk. But the Tribunal, while acknowledging the accuracy of this to the extent that it "is certainly true that ... it is possible to identify instances in which older Tamils, for example, have been arrested in Colombo", then avoided the issue by a return to the irrelevancy that what was submitted to be a demonstrable risk was not "particular", so as to put the applicant "equally at risk" with others for whom a particular risk could be shown. The Tribunal said "it does not follow from such instances that all Tamils, whatever their age, and whether they have lived in Colombo all their lives or whether they are only recently arrived from the North or the East, are equally at risk." It said it accepted evidence "that those at particular risk of being arrested are young Tamils who have recently arrived in Colombo from the North or the East." This simply does not meet the point made by the applicant's representative. Of course, for example, in World War II, the crew of a bomber were not all "equally at risk". The rear gunner was notoriously "at particular risk". But it did not follow that other members of the crew were not at risk, and did not have a real chance of being killed. The Tribunal's discussion of those most at risk, or particularly at risk, just diverted its attention from the case being made on behalf of the applicant, so that it never considered the core question which remained for decision after it had rejected the applicant's account of particular arrests he claimed to have suffered. A failure of this kind involves an error of law within s476(1)(c) and (e) of the Migration Act 1958, and, in addition, s476(1)(a): Labed v Minister for Immigration and Multicultural Affairs [2000] FCA 35 at para32 (Kenny J); Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 at ###para1, 7, 19-23, per Wilcox and Madgwick JJ, 49-50 and 60, per Hill J; Sivarasa v Minister for Immigration and Multicultural Affairs (unreported, 11 June 1998, Burchett J) at 13-14, a passage cited when the case went on appeal as Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 at 45; Paramananthan at 37, 60, 62-63; Logenthiran v Minister for Immigration and Multicultural Affairs (unreported, 21 December 1998, Wilcox, Lindgren and Merkel JJ) at 12-13 per Wilcox and Lindgren JJ, and at 1-2 per Merkel J.
[13] Then the Tribunal referred to that part of the reasoning in Guo (at 191 CLR 575; 144 ALR 579) where it is stated that "what has occurred in the past is likely to be the most reliable guide as to what will happen in the future". The Tribunal said it had "rejected as a fabrication the Applicant's account of his past experiences in Colombo, and in particular his claims that he was repeatedly arrested and accused of being involved in the LTTE." The Tribunal concluded:
"It follows that I consider that there is not a real chance, as distinct from a remote possibility, that the Applicant will be arrested in the future by the Sri Lankan authorities by reason of his race (Tamil) or his imputed political opinion (support for the LTTE)."
But of course this does not follow at all. The past of which the High Court spoke was not limited to the experiences of one individual. At the very same page, their Honours referred to "what ... had happened to .... others" as correctly going to the relevant finding. In the present case, the issue I have been discussing, arising out of the submission of the applicant's representative about the situation of Tamils in Colombo, was certainly based on past events, but they were past events which had been thoroughly documented in respect of numerous "others", that is to say, other Tamils, and their treatment by the security forces. Again, the Tribunal's error was not so much in the obvious non sequitur into which it fell in concluding that an absence of a real chance of something happening to an individual in the future followed from its disbelief that particular similar things had already happened to that individual in the past, but rather in the consequence, that it failed to consider, as it was legally bound to do, whether a wealth of material before it, relating to past occurrences, showed the applicant's fears to be well-founded in a real chance of future occurrences.
Mr Karp claims that by referring to people with particular difficulties, the Tribunal ignored other people with difficulties but who are not members of that group.
Ms Clegg submits that the country information did not say that 39% of Indian women face considerable difficulties. It did say that in 1991 only 39% of Indian women could read and write and the female literacy rate later rose to 54%. Although there may have been a minor factual error in this information, the Tribunal was simply repeating the information contained in its s.424A letter rather than coming to a conclusion on which its decision was based. Ms Clegg submits that what is important is the primary conclusion drawn by the Tribunal from the independent country information and set out in the concluding paragraph of the s.424A letter, that the applicant is not an uneducated woman but is a member of a group of educated and literate people. She submits that what was put to the applicant formed the basis for the Tribunal’s conclusion that the applicant would not be mistreated as she claimed by being a member of that particular social group. The Tribunal was not satisfied that the applicant faces persecution or that there is a real chance that she will face persecution in India because of her particular social group.
The Tribunal also stated:
However, the Tribunal has not from the claim made by the applicant been able to satisfy itself that because the applicant as a member of the above mentioned or any other particular social group she has a well founded fear of serious harm amounting to persecution for a Convention reason. (CB 148)
Nor has the Tribunal been able to satisfy itself on the information she has provided that the convention related threats have been made against her or that there is a real chance that because of her particular social group she will be subject to serious harm for a Convention reason. (CB 149)
Ms Clegg submits that although the Tribunal finding is repetitive it is a bland statement typical of Tribunal decisions. The Tribunal then moved to the issue of state protection was raised with the applicant in the s.424A letter. The independent information supported the fact that she would be provided with state protection. Ms Clegg submits that the applicant’s general claims of societal discrimination were addressed by the Tribunal. The Tribunal then dealt with the specific claims about fear from the husband and the husband’s family drawing on the earlier principle set out in Ram.

Grounds of review in amended application

At the first Court date, leave was granted for the applicant to file an amended application giving complete particulars of each ground of review relied upon by 30 January 2007. This order was not complied with. However, an amended application containing six grounds of review was filed in Court on 25 October 2007.

Ground one

1. The Tribunal failed to ask a question that it was in the circumstances of this case, legally required to ask.
Particulars
(a) Whether there is a nexus between the particular harm feared by the applicant, and her membership of the particular social group(s) of which it found she was a member.

3. There was no evidence or other material to support critical findings of fact made by the Tribunal.
Particulars
(a) That 39% of women in India are illiterate.
(b) That these women have “particular difficulties”.
(c) That literate women do not have these difficulties.

Mr Karp argues that the Tribunal failed to ask itself a question it was required to ask – whether there is a nexus between the particular harm feared by the applicant and her membership of the particular social group (CB 147.9). This failure is a result of the Tribunal not examining the actual harm the applicant feared. In other words, it did not answer the question it posed for itself:
The issue then for the Tribunal is whether the applicant has a well-founded fear of serious harm amounting to persecution for a Convention reason on this basis. (CB 147.10)
Nor did the Tribunal address a case put forward by the applicant. Mr Karp argues that by relying on the contents of the s.424A as the factual basis for rejecting the applicant’s claims of harm, the Tribunal made a finding without reason.
In support of this argument, Mr Karp referred to SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 at [18]–[20] per Mansfield, Selway and Bennett JJ:
[18] The proceedings before us involve an appeal from the decision of the primary judge pursuant to s 24 of the Federal Court of Australia Act 1976 (Cth). At the hearing of the appeal, leave was sought and granted for the appeal grounds to be amended. The effect of the amendment was that the arguments put before the primary judge (and on which he had decided the judicial review application before him) were abandoned. Instead a different argument was put. That argument was that the Tribunal had made a jurisdictional error in making a finding that the appellant was not at real risk of persecution. The basis of the alleged jurisdictional error was put on various interrelated bases: that the Tribunal did not correctly identify the proper legal test for persecution or, if it did, then it reached a factual conclusion unsupported by any evidence; or that it failed to consider other relevant evidence that was before it; or that its conclusion on the evidence was ‘Wednesbury unreasonable’. But the essence of the argument was that there was no information before the Tribunal from which it could realistically draw the conclusion that there was a government in control of the place from which the appellant came that could or would protect the appellant from persecution for a Convention reason.
[19] This argument, if it were made out, would be sufficient to establish that the Tribunal had made a ‘jurisdictional error’ so as to found jurisdiction in this Court to intervene. If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355–357. If the decision of the Tribunal was ‘Wednesbury’ unreasonable or if the material on which the Tribunal relied was so inadequate that the only inference was that the Tribunal applied the wrong test or was not, in reality, satisfied in respect of the correct test, then there would also be jurisdictional error: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 20/2002 (2003) 198 ALR 59 (‘S 20’) at 62, 67, 76, 90–91.
[20] On the other hand, if there is sufficient evidence or other information before the Tribunal on which it could reach the conclusion it did then it is for the Tribunal to determine what weight it gives to that evidence. Indeed, unless the relevant fact can be identified as a ‘jurisdictional fact’, there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35–36. It is for the Tribunal to determine the merit of the claim. The line between merit review and jurisdictional error may not be a ‘bright line’, but it is nevertheless an essential one: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

Mr Karp submits that the question of whether the applicant fears harm is a jurisdictional fact and that the information which the Tribunal relied upon in the s.424A letter did not address the applicant’s situation. Therefore, the Tribunal failed to address the harm that the applicant feared.
Ms Clegg submits that the Tribunal did address the question and rejected it (CB 148.1-148.7; 150.1-150.5). She argues that even if this question had not been adequately addressed, the Tribunal’s factual finding that the applicant could not actually be persecuted in India would dispense with any inadequacy in this respect (CB 148.7-149.9).
I am satisfied that the Tribunal has clearly stated the appropriate tests and supporting authorities in determining the nexus between any harm the applicant claims to fear and membership of a particular social group. In this respect, I believe that the Tribunal has addressed that question and set out its final decision under the heading “Findings and Reasons”. I acknowledge that both counsel have noted that the expressions used by the Tribunal member has created some difficulty in understanding the decision. However, I am satisfied that the question posed by the Tribunal at CB 147.10 has been addressed.

Ground two

2. The Tribunal failed to address the applicant’s case.
Particulars
(a) The applicant claimed that she feared continuing societal opprobrium as a result of her status as a single mother with a child, and nowhere did the Tribunal address this.

Mr Karp submits that the Tribunal failed to address the harm that the applicant feared because it did not address that part of the applicant’s case. However, Ms Clegg argues that the Tribunal is not required to address a question which does not arise from mandatory consideration and that the Tribunal only needs to be satisfied that the applicant does not have a well founded fear of persecution: s.65 of the Act.
In support of this contention Ms Clegg relies on Minister for Immigration v Eshetu [1999] HCA 21 at [193] where Callinan J stated:
[193] This (unlike Australian Broadcasting Tribunal v Bond158) is not a case therefore in which the Tribunal failed to determine, by making an explicit factual finding, a factual issue which was an essential preliminary to the making of the ultimate decision. The only essential matter for decision was of the existence or otherwise of the relevant well-founded fear and in making that decision the Tribunal gave particular, but not exclusive consideration to the matters which the respondent placed at the forefront of his application. Not surprisingly, when the assertions in respect of them failed, the respondent's application almost inevitably failed also.
Ms Clegg submits that although the applicant claims that she was a victim of “social opprobrium” and/or “discrimination” as a single woman with a child, she makes no claims of persecution. The Tribunal only needed to address claims in which the conduct could or might upon return to India amount to persecution. The applicant gave evidence about the jobs she had held since her marriage breakdown and did not claim that she encountered economic hardship of the kind required by s.91R(2)(b) because she was a single woman with a child. The Tribunal is not obliged to address each and every factual claim made by an applicant, particularly when the factual claim does not amount to a claim of persecution.
Ms Clegg submits that the finding at CB 148.8 directly addressed the question of millions of Indian women like the applicant (divorced or widowed) being persecuted due to religion or social conditions in India. The Tribunal concluded that they had not. She submits that this finding is a direct answer to the question that the applicant says the Tribunal did not address.
I am satisfied that the applicant held a fear of continual societal problems most appropriately characterised as societal discrimination but not persecution. In those circumstances the Tribunal did not have to address the claim of persecution. It rejected the advisor’s assertion that the applicant would suffer harm in India if she was required to return. I am satisfied that the Tribunal addressed the applicant’s case and that ground two cannot be sustained.

Ground three

3. There was no evidence or other material to support critical findings of fact made by the Tribunal.
Particulars
(a) That 39% of women in India are illiterate.
(b) That these women have “particular difficulties”.
(c) That literate women do not have these difficulties.

Mr Karp submits that contrary to the Tribunal’s contention (CB 148.9), there was no evidence that 39% of women in India were the only women who faced Convention related persecution. Mr Karp submits that to make a critical finding of fact unsupported by evidence is a jurisdictional error: SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 128.
Ms Clegg submits that the reference to “39% of women in India” was not a finding of fact but merely a reference to what was said in the letter. The critical finding from the independent country information was the conclusion that the applicant was not in that category of persons and because of that she would not suffer persecution in India.
Mr Karp relied on Wang and NADH (see [14] above) which were both cases that dealt with irrational or perverse findings by tribunals and where the conclusions drawn were not supported by evidence. The facts in this matter are not similar to the facts in either of those cases. The mistake made in this case was the reference to 39% of Indian women having particular difficulties but that was not what the independent country information actually said. However, it was a minor factual error and the quoting of an incorrect percentage which does not constitute a jurisdictional error, see Australian Broadcasting Tribunal v Bond [1990] HCA 33 at [80] per Mason CJ:
A decision does not “involve” an error of law unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different.
I am satisfied that the Tribunal relied upon independent country information to form the decision that literate and/or well educated women in India do not face the same difficulties as illiterate or uneducated women. That proposition was put to the applicant in the s.424A letter. Unfortunately, it appears that the Tribunal extracted the incorrect percentage figure from the report commissioned by the Office of the United Nations Resident Coordinator in India in 2001 entitled “Women in India how free? How equal?”, but this is an immaterial factual error which does not go to the heart of the decision. The proposition that the Tribunal was presenting was that the applicant was highly qualified and did not claim that she had been denied employment or accommodation. The Tribunal further noted that the applicant was part of the 80% Hindu majority and it was on that basis that it concluded that she would not be persecuted and mistreated as part of a social group by male domination or due to religion or social conditions in India (CB 148.7).
I am satisfied that the Tribunal’s quote of 39% is incorrect but the conclusion it drew was clearly based on the correct figure, which appears in the United Nations report but was misquoted in the s.424A letter. In the circumstances, I am not satisfied that ground three can be sustained.

Ground four

4. The Tribunal failed to complete the exercise of its jurisdiction.
Particulars
(a) Failure to address the question of whether women other than those in the supposed 39% who face “particular difficulties” may also face Convention related persecution.

The argument made by Mr Karp was that the Tribunal failed to address the question of whether women other than those in the supposed 39%, who face “particular difficulties”, also face Convention related persecution. The argument and the authority of Ponudurai are fully explored at [44]-[45] above.
On a fair reading of the Tribunal decision, a substantial part is directed to that particular aspect of the applicant’s claim. The conclusion it reached was that she did not. Further, the Tribunal rejected that particular assertion made by the applicant’s advisor. Consequently, I am satisfied that there has been no failure to address that question and ground four should be dismissed.

Ground five

5. The Tribunal took an irrelevant consideration into account, asked itself the wrong question and misapplied the law it was required to apply.
Particulars
(a) The Tribunal decided that the applicant’s claims of persecution were not Convention related because her circumstances resulted from a failed marriage.
(b) It was erroneous for the Tribunal to consider the cause of the applicant’s predicament as opposed to whether she the harm that she fears is for reason of a particular social group to which she belongs.

The claim in this ground is that the Tribunal asked the wrong question in respect of the applicant’s failed marriage. However, the Tribunal did discuss with the applicant the circumstances concerning the dispute about her divorce, the signing of the divorce papers and the threats from her husband’s girlfriend’s family (CB 150.1-150.5). The Tribunal demonstrated that it understood the principles to apply in determining whether a Convention nexus exists. The question of the applicant’s membership of a particular social group was considered but the Tribunal concluded that the applicant’s claimed fear was not Convention related because the dispute arose from difficulties associated with a failed marriage. These findings were open to it and in no way offend the principles in Minister for Immigration v Khawar [2002] HCA 14 at [31] per Gleeson CJ:
[31] Where persecution consists of two elements, the criminal conduct of private citizens, and the toleration or condonation of such conduct by the state or agents of the state, resulting in the withholding of protection which the victims are entitled to expect, then the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the state. In relation to the case which Ms Khawar seeks to make out, the decision in Ex parte Shah in this respect is directly in point15. If her contentions, as to which no findings have yet been made, are correct, then Ms Khawar was being abused by her husband and his relatives for personal reasons, but her likely subjection to further abuse without state protection is by reason of her membership of a particular social group, if it be the case that women in Pakistan may be so described.
I am satisfied that the Tribunal did not take an irrelevant consideration into account, ask itself the wrong question or misapply the law and this ground cannot be sustained.

Ground six

6. The Tribunal’s decision was arbitrary, capricious, irrational and illogical.
Particulars
(a) There is a lack of any discernable reasoning process regarding the applicant’s claim that she would be persecuted because of her status as a single woman with a child.
(b) The Tribunal contradicted itself in its findings as to the particular social group to which the applicant claimed to belong.
(c) There was a lack of any apparent evidentiary basis upon which the Tribunal’s conclusions of fact were arrived at as to whether she had a well founded fear of persecution for reason of membership of a particular social group.

This ground claims that the Tribunal decision is illogical, irrational, arbitrary and capricious. In support of this view, Mr Karp referred to NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328 at [12] per Allsop J (with whom Moore and Tamberlin JJ agreed):
[12] The existence in any given case of arbitrary unreasoned conclusions made without a scintilla of evidence may lay a foundation for an argument that the decision-maker moulded his or her fact finding to reach a particular result. Such may also lay the foundation for argument that the decision reached was capricious, arbitrary, made according to humour or private opinion rather than reason and justice, or that it was unreasonable: see R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 , 189; R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 , 430; Bankstown Municipal Council v Fripp (1916) 26 CLR 385 , 403; Foley v Padley (1984) 154 CLR 349 , 353 , 370; Buck v Bavone (1976) 135 CLR 110 , 118–19; Corporation of the City of Enfield v Development Assistance Commission (2000) 199 CLR 135 , 150. “Unreasonableness” in this context may be seen as embodying, at least, what Starke J said in Boucaut Bay Co (In liq) v The Commonwealth (1927) 40 CLR 98 , 101, approved by Windeyer J in Federal Commissioner of Taxation v Brian Hatch Timber Co (Sales) Pty Ltd (1972) 128 CLR 28 , 57. See also Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 , 360. The perceived absence of findings by the Tribunal so characterised does not, however, exhaust the enquiry as to whether there was apprehended bias, as appears to have been the approach of the primary judge. (I leave to one side at this point whether there was an absence of such findings.) The Full Court in WAEJ was not stating an exhaustive test for apprehended bias of administrative decision-makers.
In that case the Court did not find that the decision was unreasonable as it found apprehended bias in the Tribunal decision. The Court left the question of unreasonableness open and this was discussed in more detail at [129]-[136]. However, in this matter, the manner in which the Tribunal dealt with this issue and the lack of reason made out the ground of unreasonableness. The contrary argument put by Ms Clegg is that this matter bears no similarity to NADH of 2001 because this Tribunal decision does not contain conclusions that can be said to be “startling”, “perverse” or “irrational”. On the contrary, she submits that this Tribunal’s conclusion is almost inevitable given the nature of the applicant’s claim.
I note the concession made by Mr Karp that there is no illogicality ground available in Australian law, leaving “arbitrary” or “capricious” which is effectively bias in a decision.On a fair reading of the decision I am not satisfied that either actual or apprehended bias can be established. On a beneficial reading, the Tribunal decision is logical and it is not apparent that any jurisdictional error is present. Ground six should be dismissed.

Conclusion

I am satisfied that none of the grounds in the amended application can be sustained and that this application should be dismissed with costs.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 30 May 2008