SZMUW v Minister for Immigration and Citizenship

[2009] FCA 1444

FEDERAL COURT OF AUSTRALIA

SZMUW v Minister for Immigration and Citizenship [2009] FCA 1444

Migration Act 1958 (Cth), ss 91R and 91R(1)

SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
SZMUW & Anor v Minister for Immigration & Anor [2009] FMCA 753

SZMUW and SZMUX v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 916 of 2009

REEVES J
4 DECEMBER 2009
BRISBANE (VIA VIDEOLINK TO SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 916 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMUW
First Appellant

SZMUX
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	REEVES J
DATE OF ORDER:	4 DECEMBER 2009
WHERE MADE:	BRISBANE (VIA VIDEOLINK TO SYDNEY)

THE COURT ORDERS THAT:

1.The appeal be dismissed.

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

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 916 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMUW
First Appellant

SZMUX
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	REEVES J
DATE:	4 DECEMBER 2009
PLACE:	BRISBANE (VIA VIDEOLINK TO SYDNEY)

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of a Federal Magistrate delivered on 10 August 2009, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’).

   BACKGROUND AND PROCEDURAL HISTORY

2. The appellants are citizens of India who arrived in Australia on 29 December 2007.  On 1 February 2008, the appellants lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the Minister for Immigration and Citizenship (‘the Minister’) refused that application.  The appellants then applied to the Tribunal for a review of that decision.  The Tribunal subsequently affirmed the delegate’s decision.  The appellants then made an application for judicial review of the Tribunal’s decision to the Federal Magistrates Court of Australia.

3. The second appellant is the husband of the first appellant (“the appellant”) and applied for a protection visa on the basis of his membership of the appellant’s family.  The second appellant did not make any separate claims as to persecution.  Therefore, whether he is found to be a refugee within the meaning given under the Convention depends on the outcome of the appellant’s appeal.

   CLAIMS OF PERSECUTION DUE TO MEMBERSHIP OF A PARTICULAR SOCIAL GROUP

4. The appellant claimed that she belonged to the schedule caste Latin Catholics in Kerala. She claimed that while she was in college she suffered caste based discrimination from those in the upper caste. She claimed that she was isolated and traumatised and that she did not do well in her examinations as a result.

5. The appellant stated that when she was a part of the way through her college degree, her financial subsidy ceased because of her caste status. She also claimed that she applied for a Teacher’s training course in 1992, but she was not selected as people from the upper caste were given the available places.

6. The appellant stated that between 1992 and 1995 there was violence towards members of the schedule caste in surrounding villages.  She claimed this violence was perpetrated by members of the upper caste and the Kerala police.  This violence included shooting, setting fire to houses and torture. She claimed that in 2001 the upper caste and the Kerala police targeted coastal villages and that many people, including her family friends and relatives, were killed. She also claimed that she was physically abused. She claimed that cases were filed against the police and the upper caste, but they were not properly investigated, and have remained pending in the courts since 2002.  She claimed this lack of progress was due to the influence of the upper caste.

7. The appellant also claimed that she continued to face caste based discrimination in her education and employment.

   THE TRIBUNAL AFFIRMS THE DELEGATE’S DECISION – APPELLANT DID NOT SUFFER PERSECUTION

8. The Tribunal accepted that the appellant was a member of the schedule caste Latin Catholics in Kerala and also a member of the Fisher caste in Kerala.  It accepted that she had applied for many positions but had been unsuccessful in obtaining employment in Kerala because of discrimination “as a member of the schedule caste Latin Catholics” and that she had suffered similar discrimination while pursuing her college education.

9. The Tribunal also accepted that in 2001 armed police had opened fire on coastal villages and that the appellant may have been caught up in the violence during that time when she was staying in her relative’s home in one of the targeted villages.  However, it observed that the appellant had not provided any evidence to satisfy it that she suffered any physical abuse at that time, or that any more armed attacks had occurred since 2001.

10. Critically, the Tribunal was not satisfied that this discrimination and hardship constituted serious harm of the kind required by s 91R of the Migration Act 1958 (Cth) (“the Act”).

11. The Tribunal referred to independent information which indicated that Kerala was a safe environment for schedule caste Latin Catholics and Fisher caste members such as the appellant.  The Tribunal also noted that the appellant’s family currently resided in Kerala and was safe there.  The Tribunal was therefore satisfied that she would be safe should she return to Kerala.

12. Accordingly, the Tribunal affirmed the delegate’s decision.

    THE FEDERAL MAGISTRATE FINDS NO JURISDICTIONAL ERROR

13. In her amended judicial review application to the Federal Magistrates Court, the appellant raised the following grounds:

    1.The RRT did not sufficiently deal with my claim of I am a member of a particular social group. I was not given opportunity to obtain more evidence from India in order to substantiate this claim after the hearing.

    2.The RRT made a legal mistake by stating in its decision that there is no sufficient evidence to consider me as a membership of a particular social group. (mistake in formulationing of particular social group)

    3.The Tribunal did not address how I could return to India without continuing face risk of persecution based on my religion. It fell into error as in SZATV.

14. The Federal Magistrate considered that the appellant’s first ground of review was misconceived as the Tribunal had accepted that she was a member of the two particular social groups of which she claimed membership.  His Honour considered that it was clear from the Tribunal’s decision that it had addressed the relevant question whether the appellant’s membership of a particular social group gave rise to a well-founded fear of persecution.  His Honour noted that it was for the appellant to put the case that she wished to put to the Tribunal and that the Tribunal was not obliged to investigate her claims.

15. As to the second ground of review, the Federal Magistrate observed that it was not particularised it was therefore difficult to assess.  His Honour concluded that the factual foundation for the complaint did not exist and it could not be sustained.

16. The appellant relied on SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 (“SZATV”) in her third ground of review.  His Honour noted that case concerned relocation and observed that the issue of relocation was not addressed or raised anywhere in the Tribunal’s decision.   Rather, the Tribunal had found that the appellant did not suffer a well-founded fear of persecution in her home state of Kerala.  Consequently, his Honour concluded this ground of review could not be sustained.

17. Finally, the Minister’s counsel brought to his Honour’s attention the possibility that the Tribunal did not specifically advise the appellant that it might reach a different conclusion from that of the delegate, in breach of SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 (“SZBEL”).  Nonetheless, having raised it as a possibility, the Minister’s counsel submitted it could not be made out because it was for the appellant to prove that the issue was not raised with her at the hearing, and in the absence of the transcript or an affidavit as to what occurred at the hearing, the applicant could not prove that the matter was not put to her, relying on the decision in NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241. His Honour accepted this submission and noted, in any event, that the Tribunal made its finding on an alternative basis, namely that the independent country information indicated that Kerala was a safe environment and the appellant would be safe to return there.

18. The Federal Magistrate accordingly dismissed the appellant’s application for want of jurisdictional error.

    THE CONDUCT OF PRESENT APPEAL

19. On 25 August 2009, the appellant filed a notice of appeal in this Court which alleged that:

    1.The RRT did not sufficiently deal with my claims for a protection visa.

    2.The RRT said that there was no evidence to consider me as a member of a particular social group.

    3.The RRT did not address how I could return to India without continuing face risk in India.

20. At the hearing of the appeal before me on 11 November 2009, the appellant appeared in person, unrepresented, but assisted by an interpreter.  Ms Francois appeared for the Minister.

21. The appellant filed an outline of written submissions that did not add anything to her grounds of appeal.  In her oral submissions before me, the appellant claimed that, in her application for a visa, she had identified discrimination based on her membership of a social group, ie the schedule caste, and on the basis of her religious beliefs.  However, she claimed the Tribunal had only considered the latter.

22. Ms Francois had filed an outline of written submissions on behalf of the Minister. In her oral submissions, she submitted the Minister’s counsel was in error when he told the Federal Magistrate (see [2009] FMCA 753 at [25]) that: “in the decision summary of the hearing that occurred before the Tribunal there is no specific statement that it informed the applicant that it might reach a different conclusion from that of the delegate and that could potentially raise a SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 issue”.  Ms Francois submitted that both the delegate and the Tribunal had reached the same conclusion about whether the discrimination the appellant complained about amounted to persecution within the terms of the Convention and the Tribunal had alerted the appellant to the fact that this may be a dispositive issue.

23. In support of this submission, Ms Francois took me to the delegate’s decision where the delegate stated “The Refugees Convention was created to protect people from persecution.  While the applicant has experienced and may continue to experience discrimination if she returns to India, the discrimination does not constitute persecution”.  Then she pointed to par [46] of the Tribunal’s decision, where it said:  “In accordance with s425 of the Migration Act, the Tribunal explained to the first named applicant issues arising in relation to the decision under review: namely whether the treatment alleged by her is such as to constitute persecution, as is required to enable her to fall within the definition of refugee as contained in the Refugees Convention”.  Finally, Ms Francois took me to one of the ultimate findings of the Tribunal in relation to this issue, which is recorded at [64] of the Tribunal’s decision as follows:  “… I am not convinced, however, that the discrimination and hardship which she has described as serious harm of the kind required by s91R(1) in order to constitute persecution, as is required in order to meet the definition as contained in the refugee definition”.

24. As to the appellant’s claim that the Tribunal had only considered her claims of religious persecution and not her claims of persecution based on her membership of a social group, Ms Francois took me to the discussion at pars [49] – [51] of the Tribunal’s decision where the Tribunal makes the point that caste based discrimination and religious discrimination are closely interconnected. In any event, Ms Francois submitted that the Tribunal had held that neither form, both of which it accepted the appellant had suffered, amounted to serious harm under s 91R(1) of the Act.

    CONSIDERATION

25. The three grounds of appeal set out in the appellant’s notice of appeal are in the most general of terms and are completely devoid of any particularisation.  It is therefore almost impossible to address them.  Furthermore, none of them alleges any error on the part of the Federal Magistrate, which is the sole purpose of an appeal to this Court from a decision of the Federal Magistrates Court.

26. Insofar as ground 1 may be an attempt to raise the issue the appellant raised in her oral submissions before me, that the Tribunal had only considered her claims of religious persecution and had failed to consider her claims of persecution based on her membership of a social group, I consider a fair reading of the Tribunal’s reasons for decision indicates that the Tribunal did assess the appellant’s claims in both respects and rejected them because the persecution the appellant claimed to suffer did not amount to serious harm, for the purposes of s 91R(1) of the Act.

27. As to the second ground of appeal, I consider it is an attempt to engage in a merits review of the Tribunal’s decision by challenging its treatment of evidence.  It is trite to observe that neither this Court, nor the Federal Magistrates Court, has any power to engage in such an exercise.

28. Finally, the third ground of appeal appears to raise the same issue as was raised in the third ground of review before the Federal Magistrate, albeit that it excludes any reference to the High Court decision in SZATV.  The Federal Magistrate dealt with that ground on the basis that the reference to SZATV indicated that the appellant was attempting to challenge a finding of the Tribunal related to relocation whereas it was apparent from the Tribunal’s decision that it had made no such finding.  Having considered the Tribunal’s reasons for decision, I agree with this conclusion.

29. However, if the omission of the reference to SZATV is intended to indicate that the appellant is claiming that the Tribunal did not properly address her claims about the risks she would face if she were to return to India, I consider that a fair reading of the Tribunal’s decision indicates that it clearly did properly and fully consider this aspect of the appellant’s claims and reject it.  In particular, the Tribunal found that Kerala was a safe environment for members of the two castes of which the appellant claimed to be a member.  It also pointed out that the appellant’s mother and daughters were members of the same castes and they had remained in Kerala and the appellant had given evidence that they were “all right and safe there”.

30. Before concluding my consideration of this appeal, I should address the issue raised by the Minister’s counsel before the Federal Magistrate that there was a possible breach of the High Court’s decision in SZBEL. Having considered the relevant parts of both the delegate’s decision and the Tribunal’s decision (set out at [23] above), I consider Ms Francois is correct in her submission that both the delegate and the Tribunal reached the same conclusion about that particular issue and the Tribunal alerted the appellant to the fact it may be a dispositive issue. I therefore do not consider there is any basis for concluding that there was a breach of the decision in SZBEL.  I might add that the appellant did not seek to raise this issue before me, either in her notice of appeal, or in her oral or written submissions.

    CONCLUSION

31. For these reasons, I consider that none of the appellant’s grounds of appeal has any merit and this appeal must therefore be dismissed.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate:

Dated:        4 December 2009

Counsel for the Appellants:	The appellants appeared in person
Counsel for the First Respondent:	R Francois
Solicitor for the First Respondent:	Clayton Utz

Date of Hearing:	11 November 2009
Date of Judgment:	4 December 2009