SZMCU & Anor v Minister for Immigration & Anor
[2009] FMCA 331
•21 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMCU & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 331 |
| MIGRATION – Visa – Protection (Class XA) visa – application for review of Refugee Review Tribunal decision – applicants are children – citizens of India born in Australia – claim of well-founded fear of persecution based on religion – applicants are infant children of mixed Hindu/Muslim marriage – where Tribunal found that the applicants were claiming to be members of a particular social group – State protection – relocation – procedural fairness. PRACTICE & PROCEDURE – Litigation guardian – children aged 7 years and 2 years – mother has no adverse interest in the proceeding. |
| Migration Act 1958 (Cth), ss.417, 425, 474, 476 Federal Magistrates Court Rules 2001 Rule 11.11 |
| SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 Applicant S 256 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 170 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634; 81 ALJR 1659; [2007] HCA 40 SZFDV v Minister for Immigration and Citizenship (2007) 237 ALR 660; 81 ALJR 1679; [2007] HCA 41 |
| First Applicant: | SZMCU |
| Second Applicant: | SZMCV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2949 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 5 February 2009 |
| Date of Last Submission: | 5 February 2009 |
| Delivered at: | Sydney |
| Delivered on: | 21 April 2009 |
REPRESENTATION
| Applicants: | Litigation Guardian in person |
| Solicitors for the Applicants: | No Solicitor on the record |
| Counsel for the Respondents: | Ms McWilliam |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The parties are to pay their own costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2949 of 2008
| SZMCU |
First Applicant
| SZMCV |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This application concerns two children who were born in India and who arrived in Australia on 12th August 2001. Their mother has been appointed their litigation guardian by an order made on the First Court Date under the provisions of Rule 11.11. I am satisfied that she is an adult and has no interest in the proceedings adverse to the children (Rule 11.10). There is no need for her to provide notice to the other parties under Rule 11.13 as she was appointed in open Court and the First and Second Respondents are represented.
The Applicants are asking the Court to review a decision of the Refugee Review Tribunal signed on 20th October 2008 and handed down on 6th November 2008, affirming the decisions of a delegate of the Minister for Immigration and Citizenship not to grant them Protection (Class XA) visas.
In their application, which was prepared for them by Mr Terry Ower of counsel under the Refugee Review Tribunal panel advice scheme, the Applicants ask the Court to issue a writ of certiorari to quash the Tribunal decision and a writ of mandamus to compel the Tribunal, the Second Respondent to the application, to decide the Applicants’ claims according to law.
The application asks the Court to issue the writ of mandamus to the Second Respondent “differently constituted”. There is some doubt as to whether the Federal Magistrates Court has the power to make such an order (see SZEPZ v Minister for Immigration and Multicultural Affairs[1]) and the better view is that the power to constitute the Tribunal rests with the Principal Member.
[1] [2006] FCAFC 107
The Minister has filed a Response, opposing the application on the basis that no reasonable cause of action is shown. Since then, the Applicants have filed an amended application.
Background
The Applicants were both born in Australia. SZMCU was born in Sydney on 12th August 2001. SZMCV was born in Sydney on 23rd October 2006. Their parents are citizens of India who have now separated. The children live with their mother.
On 2nd November 2007 the Applicants applied for Protection (Class XA) visas. They each applied as Part C applicants. Their applications said:
I never went (over there) to India. I was born in Australia from Indian (escapee) parents.
I do not want to live in the street. No grand parent wants me as my parents were not allowed to get married. They had to elope and escape to Australia to live together.[2]
[2] Court Book 19-20
In answer to question 42 on the application, “Who do you think may harm/mistreat you if you go back?” the Applicants wrote:
Both grandparents and their families. From my mother’s side they are Hindu, from my father’s side they are Muslim. My parents are of different ethnic and religious backgrounds and could not be accepted by their own people and areas. They have to elope to marry. They escape to Australia.[3]
[3] Court Book 21
In answer to question 43 “Why do you think this will happen to you if you go back?” the Second Applicant wrote:
Because as a grandson I will not be accepted by either grandparent. I will not only be rejected but ill treated by everyone in the area. If I go back I have no one to look after me as I am only one year old.[4]
[4] Ibid
A delegate of the Minister refused their applications for protection visas on 13th November 2007. The delegate found that there was no real chance that the Applicants would face persecution if they “returned”[5] to India. The delegate stated:
I find that there is no real chance that the applicants would face persecution if they return to India. Their mother is in Australia and as her protection visa application has been refused she will probably return to India with her children.
There is a suggestion that their father has left the family but there is no evidence that there is an official separation…he may have left the family in Australia to make preparations for their return to India.
Even if there is an official separation of the parents there is no evidence that the applicants will not receive care from their mother. There is no suggestion that she is an unsuitable mother nor that she would desert them. Our records show that their mother is a marketing specialist and as she has these skills there is no reason why she would be unable to care for her children.
It is possible that the grandparents in India will not want to have contact with the children if they opposed the children’s parents’ marriage, and although this would constitute discrimination there is no evidence that they would be abandoned by their mother or face persecution.[6]
[5] The applicants have never been to India. They were born in Australia and have always lived in Australia.
[6] Court Book 60
Application to the Refugee Review Tribunal
The Applicants, with the assistance of a migration agent, applied to the Refugee Review Tribunal for review of the delegate’s decision. The application wrongly stated that the Applicants’ country of birth was India[7].
[7] Court Book 64
In their application, the Applicants stated:
I and my brother were born in Australia to Indian parents. We live with our mother, our father has left us. My father was Moslem and my mother Hindu. My grand parents never accepted the marriage of two different cultures and religions. I only speak English and cannot go back to India for fear or my life and my brother’s. We will not be accepted (as we are from a mixed religious marriage) not only by our grandparents and relatives but by the community.
My mother who looks after us had her refugee application to the Department and the Tribunal refused. She is waiting for the Minister’s reply to her request to stay here.[8]
[8] Court Book 65
The application was signed by the children’s mother on their behalf.
The Tribunal wrote to the Applicants’ migration agent on 4th January 2008, inviting them to attend a hearing of the Tribunal on 18th February. The Applicants’ mother attended the hearing, along with the Second Applicant and their migration agent. The First Applicant was at school.
The Tribunal handed down its decision on 11th March 2008, affirming the decisions not to grant the Applicants Protection (Class XA) visas.
The Applicants then applied to this Court for judicial review of the Tribunal’s decision. On 1st July 2008 Orchiston FM made orders by consent issuing writs of certiorari and mandamus, setting aside the decision and remitting the matter to the Tribunal for determination according to law.
The Tribunal wrote to the Applicants’ mother, who had become their authorised recipient[9], on 25th July 2008, inviting them to attend a hearing on 27th August. The Applicant’s mother and the Second Applicant attended the hearing.
[9] Court Book 112
On 6th November 2008 the Tribunal handed down its decision, affirming the decisions not to grant the Applicants Protection (Class XA) visas.
The Refugee Review Tribunal Decision
In its Decision Record, the Tribunal states that:
The applicants appeared before the Tribunal on 27 August 2008 to give evidence and present arguments. The Tribunal also received oral evidence from the applicants’ mother, who also spoke on behalf of the applicants.[10]
[10] Court Book 148
The Tribunal Hearing Record for that day shows that the First Applicant did not attend, although the Second Applicant attended[11]. It is unlikely that his evidence was very comprehensive or his arguments particularly persuasive as he was born on 23rd October 2006 which meant that he was just under twenty-two months old on the day of the Tribunal hearing.
[11] Court Book 118
The Tribunal Decision Record sets out the Applicants’ claims from their visa applications and a summary of their claims in the application for review. The Tribunal also referred to Independent Country Information about mixed marriages in India from a variety of sources.
The Tribunal noted that the Applicants’ mother spoke on their behalf, not as a witness. The decision sets out what appears to be a detailed summary of her evidence.
The Tribunal recorded that the Applicants’ mother and father married against the wishes of the mother’s parents. The father’s parents were also against the marriage and none of the family attended the parties’ wedding.
The father came to Australia and worked; later, the mother came out and joined him. The children were both born in Australia. The Tribunal recorded:
Then one day he did not come home. When she enquired, she was told that he had left Australia. She does not know why he left and has not spoken to him since he left. Her parents will not speak to her so she cannot find out where he is.[12]
[12] Court Book 153
The mother told the Tribunal that her father would not accept the children if they went to India, although she did not think he would physically harm them and he could not stop them from going to school. The Tribunal stated:
The applicants’ mother said that her husband’s parents are awful. They would harm the children. They would not allow them to attend school. They would destroy them. If they found out the children were in India, they would break the door down and maybe they would take the children. They would not allow her to have the children. There would be a big fight.
The Tribunal asked whether she thought the police would protect her children. She said that if her husband’s parents took the children, the police would start to look for them but it would take a long time. Sometimes, because it was a Hindu-Muslim issue, the police would not get involved.[13]
[13] Ibid
The Tribunal raised with the Applicant’s mother that Independent Country Information indicated that there was adequate police protection in India and offered her the opportunity to comment in writing, apparently in accordance with the procedure in s.424AA of the Migration Act.
The Tribunal then turned its attention to the issue of relocation:
37. The Tribunal raised the question of relocation to another part of India where the children would be safe. She said that this would be alright as long as her husband’s parents did not find where they where. If they did they would come and find them. Her own father would ignore them. Her mother would be alright.
38. The Tribunal asked why her husband’s parents would want to find and take the children. She said she knew they would, it had happened to others. She was not able to give any examples of this happening.[14]
[14] Court Book at 153
The mother told the Tribunal that the children were not being raised in either the Hindu or the Muslim religions. In India they would be seen as Muslim but would not be accepted by either the Hindu or the Muslim communities.
The Tribunal’s Findings and Reasons
The Tribunal found that the Applicants are citizens of India who were born in Australia.
The Tribunal also found that the children’s parents were of different religions, their mother being Hindu and their father being Muslim. The Tribunal found that the children claimed to fear harm because they are the children of a mixed marriage and they were therefore claiming to be members of a particular social group[15].
[15] Court Book 154
The Tribunal then went on to consider the meaning of the expression “particular social group”. The Tribunal stated:
In the present case, based on the independent country information, the Tribunal is satisfied that the children of a marriage between a Muslim and a Hindu are the members of a particular social group. They share a common characteristic which sets them apart within Indian society.[16]
[16] Court Book 155
The Tribunal went on to find that the Applicants would not suffer harm at the hands of their paternal grandparents because of their membership of a particular social group. The Tribunal noted the mother’s claim that her own parents, particularly her father, would reject the children but found that simply rejecting the Applicants does not amount to serious harm as required under the Convention. Further, the Tribunal stated that simply not being accepted by certain groups in a society does not amount to serious harm.
The Tribunal found that the Applicants would not face persecution because of their membership of a particular social group if they “returned” to India.
The Tribunal then turned its attention to the Applicants’ claim that they would face persecution in India because of their perceived religion, being Muslim. The Tribunal considered that the Applicants would be able to access adequate state protection in India.[17] It also considered that they would be able to “relocate” to live in another part of India, away from Mumbai, where their grandparents live, were they to “return” to India.[18]
[17] Court Book 156
[18] Ibid
The Tribunal considered the claim by the Applicants’ mother that she would have considerable difficulty on returning to India, especially in finding accommodation and employment. The Tribunal found that those matters did not constitute serious harm and was not for a Convention, but rather was due to the mother’s lengthy absence from India. The Tribunal found that the Applicants would not face serious harm for a Convention reason as a consequence of their being dependent on their mother in India.[19]
[19] Court Book 157
The Tribunal found that the Applicants did not have a well-founded fear of being of being persecuted for Convention reasons if they were to “return” to India and affirmed the decisions not to grant them protection visas.[20]
[20] Ibid
Application for Judicial Review
The Applicants filed their application and affidavit in support on 13th November 2008. On the first court date, 8th December 2008, the Applicants’ mother was appointed their litigation guardian and directions were made to make the matter ready for Final Hearing. The application was listed for Final Hearing on 5th February 2009. The directions made by consent granted the Applicants leave to file and serve any amended application by 19th January 2009. Unfortunately, that did not happen.
The Applicants, understandably perhaps, did not file any written outline of submissions. They had filed their amended application on 28th January, which was over a week late. The Minister’s lawyers filed the First Respondent’s outline of submissions on 30th January, and it is clear that the amended application had not been considered when the submission was filed, because it does not address the grounds in the amended application.
However, at the hearing, counsel for the Minister elected to proceed and made oral submissions. The mother elected to rely on the amended application and did not make any submission.
The Applicants’ amended application relies on two grounds:
1. The Second Respondent fell into jurisdictional error in finding that it would be “reasonable” for the Applicants to avoid harm by relocating to another part of India (away from Mumbai) where there was a predominantly Muslim population.
Particulars:
a) The above finding was made on the basis of the Applicants’ religion alone and failed to address their particular circumstances as Muslim children with a Hindi mother. This was inconsistent with the Second Respondent’s earlier finding that it accepted the applicants as belonging to a “particular” social group”, being children of a mixed marriage.
2. Failure to afford the Applicants procedural fairness.
Particulars:
a) Within the context of the matter having been remitted to the Second Respondent for rehearing because it had previously neglected to address the claim of “rejection by the grandparents for religious reasons” (p.108 CB) without any indication that such rejection may fall short of the test for “persecution”, the Second Respondent should have clearly indicated that it considered the evidence of the mother concerning the paternal grandparents as “speculative” and given the Applicants the further opportunity to comment and make submissions on point.
The Applicants made no submission. The mother chose to rely on the amended application.
Counsel for the Minister submitted that the Tribunal did not need to consider the issue of relocation to avoid the risk of harm as members of a particular social group because of its earlier finding that the children did not face the risk of harm for that reason (see Applicant S256 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs[21]). Thus, she submitted, there was no error in the Tribunal’s relocation finding.
[21] [2004] FCAFC 170
As to the Applicants’ ground 2, expressed as a procedural fairness ground, Ms McWilliam submitted that this was really a complaint about a failure to comply with s.425 of the Migration Act. The complaint was that the Tribunal should have made the Applicants’ mother aware that her evidence about the children’s paternal grandparents was in issue.[22] However, this issue was discussed at the hearing and is referred at paragraphs [32] and [38] of the Tribunal decision.[23] This was sufficient to indicate to the Applicants’ mother that her evidence might not be accepted on that point. Thus, there was a compliance with s.425, as understood in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[24] ).
[22] Court Book at 21
[23] Court Book 153
[24] (2006) 228 CLR 152; [2006] HCA 63
Conclusions
The Applicants have raised two grounds of review in their amended application.
The first ground relates to the issue of relocation and claims a failure to consider the reasonableness of relocation away from Mumbai on the basis that there was expressed a fear that the Applicants would be harmed as members of a particular social group, being children of a mixed marriage.
The Tribunal did indeed consider the issue of the children being members of a particular social group; it raised the issue, only to find that the children would not face persecution because of their membership of a particular social group if they were to live in India.[25]
[25] Court Book 155 at paragraph [55]
Having made that finding, the Tribunal did not need to consider the question of relocation.
In any event, the Tribunal had considered the issue of relocation when it considered the children may be at risk of harm for the Convention reason of religion, in that they would be perceived as Muslims. It also considered the ability to access state protection.
The Tribunal did not fall into error when it considered whether it would be reasonable for the children to “relocate” or, more accurately, locate themselves in another part of India, to avoid the risk of harm for that reason. The Tribunal was aware of and referred to the decisions of Randhawa v Minister for Immigration, Local Government and Ethnic Affairs[26], SZATV v Minister for Immigration and Citizenship[27] and SZFDV v Minister for Immigration and Citizenship[28] and it followed the principles set out in those decisions at paragraphs [59] to [61] of its decision.[29]
[26] (1994) 52 FCR 437
[27] (2007) 237 ALR 634; 81 ALJR 1659; [2007] HCA 40
[28] (2007) 237 ALR 660; 81 ALJR 1679; [2007] HCA 41
[29] Court Book 156
It may not always be the case, but in the decision under review, the issues of fear of harm for the Convention reasons of membership of a particular social group and imputed religion arise from essentially the same facts, so the Tribunal’s consideration of the reasonableness of relocation has comprehensively covered the issue in any event.
It follows that the Applicants’ first ground has not been made out.
The Applicants’ second ground claims a failure to afford procedural fairness in not indicating to the Applicants’ mother that her evidence regarding the threat of harm to the children from the paternal grandparents may not be accepted. The issue was touched on briefly in the delegate’s decision[30] but the Tribunal Decision Record shows that the issue was discussed with the Applicant at the hearing, at paragraphs [32] to [38].[31] In my view the Applicants’ mother was sufficiently aware of the need for the Tribunal to be persuaded on this point so that no lack of procedural fairness is shown.
[30] Court Book 60
[31] Court Book 153
The Applicants’ second ground of review has not been made out.
Considering the fact that the Applicants and their mother were not represented at the hearing before me, I have considered whether there may be any arguable case for jurisdictional error not otherwise covered, but I am unable to discern one. There is no breach of s.424A, as the only information considered came from the Applicants or their mother on their behalf, and Independent Country Information. The Tribunal did make what appeared to be a section 424AA offer to make written comment on the issue of adequate police protection, but this was not taken up.[32]
[32] Ibid at paragraph [34]
There was no breach of s.425, as the Applicants were invited to a hearing and relevant issues were discussed at that hearing. I am satisfied that there are no breaches of any requirement of Part 7 of Division 4 of the Migration Act.
Unfortunately for the Applicants, as no jurisdictional error appears, the Tribunal decision is a privative clause decision and not subject to orders in the nature of certiorari or mandamus (Migration Act, s.474). It follows that the application must be dismissed.
Compassionate Issue
Whilst the Court has no power to make orders in this regard, it does appear that there is a compassionate issue that the Applicants and their mother might wish to pursue once this proceeding and any appeals have been completed.
The two children concerned were both born in Australia. They have lived in Australia all their lives and I understand that they only speak English. It is logically incongruous for the Tribunal decision to refer to the children “returning” to India or “relocating” within India, as one cannot return to a place that one has never been nor relocate within it.
India is an alien society for these two children, even though it is their country of nationality. Although the children were born in Australia, neither one has been ordinarily resident in Australia for a period of ten years since birth to obtain citizenship under s.12(1)(b) of the Australian Citizenship Act 2007.
If the children have to leave Australia and reside in India with their mother, they will have to live away from their grandparents, who have rejected them. Their mother will need to obtain employment and accommodation in a part of India away from her former home. It will be a difficult adjustment for these children to make.
It is fair to say that it would be in the Applicant children’s best interests to remain living in Australia.
The children’s mother may wish to consider other avenues if any appeals from this decision prove to be unsuccessful. The Minister has the power under s.417 of the Migration Act to substitute for a decision of the Tribunal a decision that is more favourable to the Applicants if the Minister thinks that it is in the public interest to do so.
It should be stressed, however, that this power is entirely one for the Minister to exercise and may only be exercised by the Minister personally.
The Applicants’ mother may find that a registered migration agent would offer useful advice in this regard.
All that the Court can do at this stage is to make an order dismissing the application. I will consider whether it is appropriate to make an order for costs. I note that the Applicants are young children.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 17 April 2009
0
7
2