SZJWU v Minister for Immigration and Citizenship

[2008] FCA 1371

FEDERAL COURT OF AUSTRALIA

SZJWU v Minister for Immigration and Citizenship [2008] FCA 1371

SZJWU v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 870 OF 2008

GRAHAM J
12 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 870 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJWU
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAHAM J
DATE OF ORDER:	12 AUGUST 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 870 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJWU
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAHAM J
DATE:	12 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant was born in Calcutta in India on 26 January 1976.  On or about 25 January 2000, she married another Indian person whom I will identify as S.B.  The marriage had its ups and downs and resulted in a divorce in the year 2004.  The appellant ceased to have contact with her then husband at the end of 2003. 

2. Later, in 2004, she travelled to Singapore and Malaysia and then returned to India.  On 22 February 2006, she obtained an Indian passport in another name.  On 12 April 2006, she obtained a one month visitor’s visa permitting her to enter Australia.  She said that to get a visa she had to marry a person whom she had never met before.  She proceeded to leave India on 29 April 2006 and arrived in Australia on 30 April 2006.

3. On 19 May 2006, she applied for a Protection (Class XA) visa.  In support of her application for a visa she provided, in the English language, an 11 page handwritten statement under the heading, ‘Application in Support with protection Sought’.  The appellant identified herself by her married name under her second marriage.

4. It would appear from that statement that the appellant obtained a tertiary education in India.  She claimed to have obtained a B.A. degree in 1998 after attending a well regarded school in Calcutta known as the ‘Auxilium Convent School’. 

5. The appellant was a Hindu and her first husband, S.B., came from a Brahmin family.  Much of the 11 page statement deals with S.B.’s courtship of the appellant, her initial lack of interest in S.B., the affection which S.B. showed for her in providing her with flowers, cards, chocolates and gifts, and in writing letters to her in which he expressed his feelings and how much he cared for and loved her.  He even wrote that he may die if she were to refuse him.  S.B. showed his care and love for the appellant by waiting for her in the rain, in the heat and in the cold. 

6. The appellant was invited to S.B.’s birthday party in August 1997.  She initially refused the invitation but upon hearing that he had been involved in an accident, she visited him in hospital and ultimately attended the birthday party.  She came to become a friend of S.B..  She was touched by his words and developed a feeling of attachment to him.  Romance developed and ultimately, S.B. and the appellant married. 

7. There was, as I would understand it, some dispute over money that should be paid by the bride’s family to the groom’s family.  The appellant’s father was not disposed to provide cash but was happy to provide gold, furniture, household goods, a television, a washing machine, a refrigerator, a video recorder, etc. 

8. Following the marriage, the relationship soured.  There were occasions when S.B. hit the appellant.  There were occasions when he burnt her either with a cigarette lighter or with a lighted cigarette.  There were times when he kicked her ‘like a ball’.  There were times when they did not talk to one another.  There were brief periods of estrangement.  There were unpleasant words spoken in the presence of their servants, of whom there were three.  S.B. became drunk at times.  He, on occasions, locked the appellant inside their home.  There was a time when the appellant was using what would appear to have been a mixmaster and S.B. turned it on with a view to damaging her hands. 

9. The appellant was insulted by S.B. in the presence of work colleagues, both parties working at the same location.  The appellant claimed that S.B. had stolen gold from her cupboard along with money from her bags.  He set fire to a dress and would burn her hands or bite her.  At times he may have hit her on the breast and other tender parts or her body.  S.B. would appear to have been unfaithful to the appellant at times.  The appellant claimed that she was knocked senseless.  She also claims that she risked a near death when a gas pipe was turned on in the kitchen of a place in which she was then staying. 

10. Notwithstanding the unfortunate progression of the relationship, S.B. apparently had political ambitions and wished to have the appellant stay with him.  He was concerned that they not become divorced because it may have frustrated his political advancement.

11. At one stage S.B. started to hit the appellant with his belt.  She was injured and admitted to hospital.  Her parents contacted the police with a view to having proceedings instituted against S.B.  Following a plea made to the appellant’s brother by a local politician, the case against S.B. was withdrawn.  The appellant filed for divorce and, as previously mentioned, the appellant and S.B. were divorced in 2004. 

12. The appellant’s application for a Protection (Class XA) visa was refused by a delegate of the Minister on 30 June 2006.  On 24 July 2006 the appellant applied for a review of the delegate’s decision.  She was invited to attend a hearing of the Refugee Review Tribunal (‘the Tribunal’) on 13 October 2006, which she did.  On 1 November 2006 the Tribunal decided that the decision of the Minister’s delegate not to grant the appellant a Protection (Class XA) visa should be affirmed.  That decision was handed down on 28 November 2006.

13. On 18 December 2006 the appellant instituted proceedings in the Federal Magistrates Court of Australia seeking constitutional writ relief in respect of the decision of the Tribunal.  An Amended Application was filed on 27 March 2007.  There was a hearing before the Federal Magistrates Court on 19 March 2008 before Barnes FM.  Her Honour handed down her judgment on 23 May 2008 and ordered that the application be dismissed. 

14. On 12 June 2008 the appellant, who is identified for the purposes of these proceedings as SZJWU, filed a Notice of Appeal.  There is not a great deal of similarity between the grounds specified in the original Application filed in the Federal Magistrates Court on 18 December 2006, those that were included in the Amended Application filed 27 March 2007 and the grounds relied upon in the Notice of Appeal filed 12 June 2008.  There is also limited correspondence between the ground specified in the Notice of Appeal and the matter contained in a two page document entitled ‘Applicant’s Written Submissions’ which was filed in this Court on 4 August 2008.   There seemed to be very little correspondence between what was contained in the appellant’s written submission and what had been the case as addressed by the Tribunal.

15. When asked why some of the material that was contained in the written submission had been included, the appellant responded by indicating that the submission had been written by a friend who helped her out. 

16. One particular matter relied upon by the appellant was a submission that the Tribunal failed to record its decision in accordance with the requirements of s 430 of the Migration Act 1958 (Cth) (‘the Act’) and ‘made no finding as to the extent or nature of persecution suffered by the applicant’. This submission did not bear analysis and might be regarded as nonsense.

17. In the ‘FINDINGS AND REASONS’ section of its Statement of Decision and Reasons, the Tribunal said:

    ‘The Tribunal noted contradictions in the evidence provided by the applicant at the hearing.  She stated for example, that she changed her address often in Calcutta to avoid her first husband but she also stated that she lived with her parents for many years.  The Tribunal has formed the view that the applicant’s memory is poor and she has a fractured recollection of her circumstances in India.  However, the Tribunal is satisfied that she was sufficiently lucid to present her core claims, and with the evidence she was able to provide, the Tribunal accepts that she is a citizen of [India] and that she was beaten and seriously mistreated by her first husband during their marriage.  The Tribunal also accepts that she suffered ostracism by society in India after her marriage failed because she was a young divorced childless woman.’

    (Emphasis added)

18. The Tribunal was not satisfied that the appellant was at risk of harm by her former husband at the time she departed India in 2006.  Indeed, it found that the appellant had no contact with her husband after December 2003.  The Tribunal formed the view that if the appellant’s former husband had wanted to contact or harm her after the divorce papers were signed, he had ample opportunity to do so while the appellant was living in India.  The Tribunal accepted that the appellant was afraid of her former husband and that she believed that he would seek to harm her in the future.  However, the Tribunal found that the appellant’s fear in this regard was not well founded and was satisfied that she would not be at risk of harm by her former husband in the reasonably foreseeable future.

19. The Tribunal considered the appellant’s claim that as a young woman, divorced and childless, she suffered ostracism by society in India.  The Tribunal accepted that the appellant was ostracised in the way she described; that people gossiped about her, pointed at her, that she was prevented from participating in some religious festivals, and that she lost status.  However, the Tribunal found that the ostracism she suffered in India did not amount to persecution within the meaning of the Convention.  In the circumstances, the Tribunal found that the appellant did not have a well founded fear of persecution in India for a Convention reason.

20. When asked to address the Court on what may truly have been errors in the manner in which the Tribunal approached the appellant’s case, the appellant’s response was to the effect that the Tribunal did not understand her case and did not understand that she left India because of ‘her husband’s torture of her’.  When asked whether she had anything further to say in support of her appeal, she indicated in the negative. 

21. The Tribunal reached the conclusion that the fear of harm from her husband which the appellant experienced was not a well founded fear in circumstances where, for well over two years, the appellant had resided in India and had no contact with her husband in that period of time before she came to Australia.  The Tribunal also found that the ostracism which the appellant suffered did not amount to persecution within the meaning of the Convention. 

22. The Tribunal did not specifically address what, if any, particular social group the appellant may have been a member of which would relevantly bring her within the protection of the Convention.  The appellant submitted that her nationality, political opinion, her financial standing and the fact that she was a woman who had been mistreated and abused, placed her within a particular social group. 

23. It seems to me that her circumstances were, on the material before the Tribunal, such that any fear of persecution she may have had was related to her personal relationship with her husband and her divorce, rather than any persecution she may have suffered as a member of a particular social group.

24. Decisions upon the grant or refusal of protection visas are made, in the first instance, by the Minister, his or her powers normally being exercised by one or other of the Minister’s delegates for the purposes of s 65 of the Act.

25. Section 65 relevantly provides:

    ‘65(1)  After considering a valid application for a visa, the Minister:

    (a)       if satisfied that:

    …

    (ii)the other criteria for it prescribed by this Act or the regulations have been satisfied; …

    …

    is to grant the visa; or

    (b)if not so satisfied, is to refuse to grant the visa.’

26. A decision to refuse to grant a visa is an RRT-reviewable decision within the meaning of the Act (see s 411(1)(c)). Section 412 makes provision for applications for review of RRT-reviewable decisions. Under s 415(1) of the Act the Tribunal may, for the purposes of the review of an RRT-reviewable decision, exercise all the powers and discretions that are conferred by the Act on the person who made the primary decision.

27. Section 420 of the Act provided for the process whereby the Tribunal would exercise its powers, as follows:

    ‘420(1)The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

    (2)The Tribunal, in reviewing a decision:

    (a)is not bound by technicalities, legal forms or rules of evidence; and

    (b)must act according to substantial justice and the merits of the case.’

28. The purpose of a provision such as s 420(2) was explained by Gummow and Heydon JJ, with whose reasons Gleeson CJ agreed, in Re RUDDOCK (in his capacity as Minister for Immigration and Multicultural Affairs; Ex parte APPLICANT S154/2002 (2003) 201 ALR 437 (‘Ruddock’) at [56] as follows:

    ‘56      … The purpose of a provision such as s 420(2) is to free bodies such as the tribunal from certain constraints otherwise applicable in courts of law which the legislature regards as inappropriate.  Further, … administrative decision-making is of a different nature from decisions to be made on civil litigation conducted under common law procedures.  There, the court has to decide where, on the balance of probabilities, the truth lies as between the evidence the parties to the litigation have considered it in their respective interests to adduce at trial.’

29. The relevant criterion for the grant of a protection visa to which s 65(1)(a)(ii) refers is to be found in s 36(2) of the Act, which, relevantly for present purposes, provides as follows:

    ‘36(2)  A criterion for a protection visa is that the applicant for the visa is:

    (a)a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; ….’

    The Refugees Convention means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Refugees Protocol means the Protocol relating to the Status of Refugees done at New York on 31 January 1967.  Hereafter I will refer to the Refugees Convention as amended by the Refugees Protocol as ‘the Convention’.

30. Plainly, satisfaction under s 65(1) is not to be addressed by deciding where the truth lies on the balance of probabilities. Whilst cases such as Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 (‘Rajalingam’) refer to the ‘civil standard of proof’ being not irrelevant to the process of fact-finding by the Refugee Review Tribunal and cases such as Kalala v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 212 (‘Kalala’) refer to the Tribunal being obliged to consider matters on ‘a standard less than the balance of probabilities’ (see at [25]), I doubt the utility of addressing matters on which the Tribunal has to be ‘satisfied’ by a standard which is related to the standard of proof required in adversarial civil litigation.

31. As has been said many times, proceedings in the Tribunal are not adversarial, but rather inquisitorial.  The Tribunal is not in the position of a contradictor of the case being advanced by an applicant.  The Tribunal member conducting the relevant inquiry is not an adversarial cross-examiner, but an inquisitor obliged to be fair.  The Tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which an applicant chooses not to embark on.  It is for an applicant to advance whatever evidence or argument he or she may wish to advance before the Tribunal and for the Tribunal to decide whether the relevant claim has been made out (see per Gummow and Heydon JJ in Ruddock at [57]-[58]).

32. In NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161 (‘NAGV’) the High Court considered s 36(2) of the Act in the form in which it existed prior to the passage of the BorderProtection Legislation Amendment Act 1999 (Cth). Relevantly, for present purposes, Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ said at [31]-[33]:

    ‘31      … a perusal of the Convention shows that, Art 33 apart, there is a range of requirements imposed upon Contracting States with respect to refugees some of which can fairly be characterised as “protection obligations”.  …

    32       … Section 36(2) does not use the term “refugee”.  But the “protection obligations under [the Convention]” of which it does speak are best understood as a general expression of the precept to which the Convention gives effect.  The Convention provides for Contracting States to offer “surrogate protection” in the place of that of the country of nationality of which, in terms of Art 1A(2), the applicant is unwilling to avail himself.  That directs attention to Art 1 and to the definition of the term “refugee”.

    33 Such a construction of s 36(2) is consistent with the legislative history of the Act. This indicates that the terms in which s 36 is expressed were adopted to do no more than present a criterion that the applicant for the protection visa had the status of a refugee because that person answered the definition of “refugee” spelled out in Art 1 of the Convention.’

    (Footnotes omitted)

33. The question of who answers the description of a ‘refugee’ is relevantly determined by Article 1 of the Convention which relevantly provides:

    ‘A.For the purposes of the present Convention, the term “refugee” shall apply to any person who:

    …

    (2)… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence … is unable or, owing to such fear, is unwilling to return to it.’

34. The definition of ‘refugee’ is couched in the present tense and the text indicates that the position of the putative refugee is to be considered on the footing that that person is outside the country of nationality.  The reference then made in the text to ‘protection’ is to ‘external protection’ by the country of nationality, for example by the provision of diplomatic or consular protection, and not to the provision of ‘internal protection’ provided inside the country of nationality from which the refugee has departed (per McHugh and Gummow JJ in Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 (‘Khawar’) at [62], cited with approval by Gummow, Hayne and Crennan JJ in SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634 (‘SZATV’) at [16]; see also Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1).

35. It is well settled since Chan and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (‘Guo’) at 571-2 and 596 that the requirement that the ‘fear’ be ‘well-founded’ adds an objective requirement to the examination of the facts and that this examination is not confined to those facts which form the basis of the fear experienced by the particular applicant (per Gummow, Hayne and Crennan JJ in SZATV at [18]). A fear is ‘well-founded’ where there is a real substantial basis for it (see Guo at 572).

1. Section 91R of the Act relevantly provides:

   ‘91R(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.’

2. In s 91R(2) instances of ‘serious harm’ for the purposes of s 91R are identified. These include:

   ‘(b)     significant physical harassment of the person;
   (c)       significant physical ill-treatment of the person;’

3. In Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 (‘Chen’) reference was made to the earlier decision of the High Court in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 (‘Applicant A’). At [13] in Chen Gleeson CJ, Gaudron, Gummow and Hayne JJ, summarised the findings of the Court in Applicant A as follows:

   ‘13      It was held in Applicant A that the “common thread” which links “persecuted”, “for reasons of” and “membership of a particular social group” in the Convention definition of “refugee” dictates that “a shared fear of persecution [is not] sufficient to constitute a particular social group”.’

   (Footnotes omitted.)

4. In addressing the phrase ‘particular social group’ Dawson J said in Applicant A at 241:

   ‘… The adjoining of “social” to “group” suggests that the collection of persons must be of a social character, that is to say, the collection must be cognisable as a group in society such that its members share something which unites them and sets them apart from society at large.  The word “particular” in the definition merely indicates that there must be an identifiable social group such that a group can be pointed to as a particular social group.  A particular social group, therefore, is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large. That is to say, not only must such persons exhibit some common element; the element must unite them, making those who share it a cognisable group within their society.

   I can see no reason to confine a particular social group to small groups or to large ones; a family or a group of many millions may each be a particular social group. Nor is there anything which would suggest that the uniting particular must be voluntary. …’

5. In Applicant A Gummow J expressed his agreement with the following observations of Burchett J, in relation to the meaning of persecution, in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 568:

   ‘Persecution involves the infliction of harm, but it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm.  People are persecuted for something perceived about them or attributed to them by their persecutors.  Not every isolated act of harm to a person is an act of persecution.’

   (see per Gummow J in Applicant A at 284.)

6. In relation to membership of a particular social group, Gummow J opined at 285 that numerous individuals with similar characteristics or aspirations did not comprise a particular social group.  Once again, his Honour expressed agreement with a passage from the judgment of Burchett J in Ram at 569 as follows:

   ‘There must be a common unifying element binding the members together before there is a social group of that kind.  When a member of a social group is being persecuted for reasons of membership of the group, he is being attacked, not for himself alone or for what he owns or has done, but by virtue of his being one of those jointly condemned in the eyes of their persecutors, so that it is a fitting use of language to say that it is “for reasons of” his membership of that group.’

7. The appellant has failed in this case to direct the attention of the Court to any jurisdictional error that may have been committed by the Tribunal in addressing the issues that were before it.  It is clear that the Tribunal had regard to the lack of contact between the appellant and her former husband for over two years while she was still living in India as material to its finding that her fear of further harm from her husband was not ‘well-founded’. 

8. In relation to the possibility that she may have been a member of a particular social group comprising young divorced childless women, this was plainly addressed by the Tribunal, which acknowledged that the appellant had been ostracised in the manner identified above by society in India. However, and in my view correctly, the Tribunal found that the ostracism she suffered in India did not amount to persecution within the meaning of the Convention as amplified by s 91R of the Act.

9. No authority was cited, or principle referred to by the appellant which demonstrated that, in dealing with matters of satisfaction, as required by s 65 of the Act, an applicant for refugee status was entitled to the ‘benefit of the doubt’. Indeed, as Mr Markus, who appears for the respondent Minister has pointed out, if anything, the Tribunal did extend to the appellant the benefit of the doubt in making certain of the findings first referred to above, under the heading ‘FINDINGS AND REASONS’, and furthermore, addressed the possibility that the appellant may satisfy the definition of refugee under the Convention by way of having a well-founded fear of persecution for reason of her membership of a particular social group and that such well-founded fear of persecution was the occasion for the appellant being outside the country of her nationality.

10. The appellant’s former husband’s treatment of her during the course of their married life may well have been unfortunate.  No doubt there are many divorcees and estranged spouses in Australia who share feelings such as those that were experienced by the appellant in relation to S.B.  However, a personal fear of harm from a former husband does not bring a person having such a fear within the scope of the Convention. 

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated:        5 September 2008

The Appellant appeared in person.
Solicitor for the First Respondent:	A Markus of the Australian Government Solicitor
The Second Respondent filed a submitting appearance

Date of Hearing:	12 August 2008
Date of Judgment:	12 August 2008