SZQSB v Minister for Immigration - [2012] FMCA 615

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQSB v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 615

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to complete the exercise of its jurisdiction by failing to address claims made by applicant or arising on the materials before the Tribunal.

Migration Act 1958 (Cth), s.91R

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802
Minister for Aboriginal Affairs and Another v Peko-WallsendLimited and Others (1986) 162 CLR 24; [1986] HCA 40
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1; [2004] FCAFC 263
SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137; [2003] FCAFC 120
SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364; [2003] FCA 709
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184

Applicant:

SZQSB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2226 of 2011

Judgment of:

Barnes FM

Hearing date:

29 May 2012

Delivered at:

Sydney

Delivered on:

13 July 2012

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Solicitors for the Applicant:

Parish Patience Immigration Lawyers

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2226 of 2011

SZQSB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Refugee Review Tribunal dated 6 September 2011 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. The applicant sought review by application filed on 4 October 2011. He now relies on an amended application filed on 29 May 2012.
The applicant, a citizen of Nepal, first arrived in Australia in July 2008. He applied for a protection visa in March 2011. The application was refused and he sought review by the Tribunal.
In a statutory declaration accompanying his protection visa application, the applicant claimed that he was a member of the Hindu Chhetri Thapa caste and that he had formed a relationship with a young woman (referred to for convenience as “S”), who belonged to the Newari caste, (which the applicant described as a low caste). He claimed that he wanted to marry S but that “his family would reject [him] rather than allow entry into the family to a lower caste girl”. He also claimed that he would be “hated, neglected and ostracised by [his] family and society”, that he would “have to live an isolated life” and that “his family’s position and prestige in society [would] be diminished”. He claimed that his wife would “suffer from mental torture”, that their “relationship [would] be at risk” and also that they would “have problems taking part in activities such as feasts and festivals”. The applicant claimed that they could not safely move to live in another part of Nepal because the problem existed in the entire nation, that he would “encounter a lot of criticism from different people” and, “I will have problems finding and keeping employment and even in housing.”
The applicant’s migration agent provided a detailed written submission to the Department in support of the applicant’s claims and also a report on “Attitudes to Inter-Caste Marriage in Nepal” from a University of Sydney academic, Dr Courtney (the Courtney Report).
The application was refused by a delegate of the first respondent who was not satisfied that the applicant had a genuine intention to marry Ms S but, in any event, found based on country information that inter-marriage between castes not too far removed from each other (such as the Chhetri caste and the Newari caste) and of similar social status was permissible and that there were reports of marriages between people of these two castes which had progressed without problems. The delegate was not satisfied that the harm the applicant claimed to fear amounted to serious harm within s.91R(2) of the Migration Act 1958 (Cth) (the Act).
In support of the application for review, the applicant’s migration agent provided a further written submission to the Tribunal. The applicant attended a Tribunal hearing. A transcript of the Tribunal hearing is in evidence before the Court as an annexure to the affidavit of David Lee Bitel affirmed on 23 December 2011. What occurred at the hearing is discussed below in relation to the ground in the amended application.

The Tribunal Decision

In its findings and reasons the Tribunal recorded the applicant’s claims that he had an inter-caste relationship with a female from the Newari caste, and that if he married her he would face serious harm from his family and society but that if he married someone from his own caste to conform with family and society expectations his fiancée may commit suicide. The Tribunal recorded that the applicant claimed to fear persecution for reason of his membership of two particular social groups being “a Chhetri male intending a genuine relationship with a female from Newari (Shrestha) caste with the aim of marriage,” and “a member of Thapa betraying Chhetri caste.”
The Tribunal accepted that the applicant was facing pressure from his family to marry within his caste and that his fiancée in Nepal was from a lower caste. It also accepted his claim that if he proceeded with the marriage he may face social ostracism and rejection by his family. However the Tribunal was not satisfied that the harm that the applicant would experience in Nepal, whether he entered into an inter-caste marriage or conformed to family expectations and married someone from his own caste, would amount to persecution for the purposes of the Refugees Convention.
While the Tribunal accepted that the applicant was afraid to return to Nepal for the reasons he provided, it had regard to the principles that for a fear to be well-founded there must be a sufficient foundation and factual basis for that fear and that a fear of persecution would not be well-founded if it was merely assumed or was mere speculation.
The Tribunal stated that it had considered the evidence presented by the applicant and information from external sources (described in its reasons for decision) dealing with the treatment of persons in Nepal who entered inter-caste marriages. While the Tribunal accepted that conservative attitudes persisted in Nepal with regard to such marriage and that the applicant may be ostracised and rejected by his family and society and discriminated against by conservative elements in society if he proceeded with the marriage, it found that such treatment would not amount to harm of such nature or extent as to constitute persecution.
In reaching this conclusion the Tribunal referred to the non-exhaustive list of the type and level of harm that would meet the serious harm test set out in s.91R(1)(b) of the Act. It observed that all such examples involved physical harm or economic hardship, but also acknowledged that the list was not exhaustive and that the serious harm test did not exclude serious mental harm. The Tribunal referred to the revised Explanatory Memorandum to the Migration Legislation Amendment Bill (No. 6) 2001), which introduced s.91R into the Act and states that it “is insufficient…that the person would suffer discrimination or disadvantage in their home country, or in comparison to the opportunities or treatment which they could expect in Australia”. The Tribunal formed the view, from information regarding human rights conditions in Nepal and the circumstances of persons in inter-caste marriages, that conditions in Nepal had improved in recent years for persons marrying outside their caste and that while such marriages were not common or universally accepted, particularly in more conservative rural communities, they were becoming more common and acceptable in urban environments.
The Tribunal accepted that the applicant was from a conservative rural community and that negative and conservative attitudes persisted in rural and remote communities, including the applicant’s village and within his family. It accepted that the applicant may be shunned by his family and persons in his village if he proceeded to marry a woman from a lower caste. However it reiterated that such social ostracism by the applicant’s family and society would not amount to harm of such nature and extent as to constitute persecution. Nor was it satisfied that family rejection and social disapproval would constitute serious harm amounting to persecution. Hence the Tribunal was not satisfied that the applicant had a well-founded fear of persecution in Nepal due to his inter-caste marriage or that he was at risk of being subjected to persecution for a Convention reason.
The Tribunal addressed the applicant’s claim that he may comply with the demands of his family and not marry his fiancée and the adviser’s contention that to be forced into such a situation would constitute persecution. The Tribunal found that social pressure to marry would not amount to harm which would constitute persecution for Convention purposes.
The Tribunal was not satisfied that the applicant faced a real chance of persecution in Nepal for reason of his membership of any particular social group or for any other Convention reason. It affirmed the decision not to grant the applicant a protection visa.

Whether failure to address claims

There is one ground in the amended application. It contains two particulars and is as follows:
The Tribunal failed to complete the exercise of its jurisdiction:
(a)Failure to address the claims put forward by the applicant that he would have problems keeping employment and in finding housing were he to marry a woman of lower caste.
…
(c) Failure to address a claim that arose clearly on the materials before the Tribunal, that being that participants in inter-caste marriages in Nepal may be subject to violence.
First, it was contended that in connection with his protection visa application the applicant had claimed in writing not only that he would experience social and familial ostracism, but also that he would have problems in “finding and keeping employment and even in housing”. It was submitted that this was not simply a claim that the applicant could not relocate for these reasons, but rather a more general claim on the basis that if his family rejected him and treated him as an outcast (as he claimed to fear), this implicitly carried a claim that he would not be able to live with them and hence that he would have to find employment and housing outside the family unit and the family influence. The general nature of this claim was said to have been made clear at the Tribunal hearing. It was contended that the Tribunal failed to address these claims.
Counsel for the applicant pointed out that the applicant’s solicitor’s detailed submission had referred to the Asian Human Rights Commission Report on “The state of human rights in ten Asian nations – 2009” which stated that repercussions witnessed in cases of inter-caste marriage included:
(a) Harassment: Inter-caste couples face violence and harassment from their community, including social ostracism, economic hardship, exclusion from religious and cultural events, and often end up living in isolation from friends and neighbours.
It was submitted that this information reinforced the implicit claim that if the applicant faced social ostracism and isolation from his family, he would have to find accommodation outside the family unit.
The applicant also relied on the fact that at the Tribunal hearing, after the Tribunal put to him that the social ostracism and rejection by the family that he claimed he faced may not amount to serious harm constituting persecution, he referred to the family pressure on him to marry a person within his own caste and continued (transcript p.8 in part of his response to question 29):
…Like if I get married with that the family torture and the mental torture makes my future blind, because I’m, and this ….. independent, I have to independent with my family members because I don’t have, want more quality of education and this will, this will, makes me my life or my future will be blind. That’s the main thing, like …
Question 30 – Your future blind?
Answer – Yeah.
Question 31 – Can you explain that concept to me?
Answer – Because like I can’t like live, the problem is not within my family it’s in the entire nation. The problem is still remain in the entire nation. This will cause me numerous problem for me, whether I leave them, I leave this place or whether I live in another part of the country.
Counsel for the applicant submitted that while the Tribunal member did not ask the applicant to expand on this response, it could be inferred that the numerous problems to which he referred included problems with employment and housing.
Reliance was also placed on the fact that subsequently, when the Tribunal member suggested that the applicant could move to Kathmandu if he wanted to avoid his family and community (question 33, p.9), the applicant responded:
Yes, I do understand that, but remember what the thing is that we, we both like, the girl and me is not well qualified and is the problem for us like with having this inter-cast (sic) marriage to find a job as well. Because in Nepal they need the support of people, without any support they can’t find a job as well.
Counsel for the applicant submitted that the issues of finding employment and housing were clearly raised by the applicant and hence had to be addressed by the Tribunal, consistent with the principles in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 at [42] per Allsop J and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2) (2004) 144 FCR 1; [2004] FCAFC 263 at [57] – [58].
In Htun at [42] Allsop J, as he then was, made the point that the Tribunal must consider all the claims and their component integers as “considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24; [1986] HCA 40”.
In addition reliance was placed on the fact that in NABE at [57]-[58] the Court referred with approval to the remarks of Allsop J in Htun and observed that the Tribunal was (at [58]):
required to deal with the case raised by the material or evidence before it…[t]here is authority for the proposition that the Tribunal is not to limit its determination to the “case” articulated by an applicant if evidence and material which it accepts raise a case not articulated.
Mr Karp acknowledged that, as the Full Court of the Federal Court stated in NABE at [61], the Tribunal is not required to consider a case that is not expressly made or that does not arise clearly on the materials before it, but also pointed out that the Full Court of Federal Court stated that “a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it (which, if resolved one way, would or could be dispositive of the review,) can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error” (NABE at [63]).
On this basis it was said that the Tribunal erred in failing to address the claims put forward by the applicant that he would have problems finding and keeping employment and in finding housing were he to marry a woman of a lower caste and also claims of a fear of violence said to arise on the material before the Tribunal.
In addition it was submitted that, as contended in particular (c) to the ground in the amended application, a claim arose clearly on the materials before the Tribunal that participants in inter-caste marriages in Nepal may be subject to violence and hence that the Tribunal was obliged to deal with such claim. Counsel for the applicant acknowledged that such a claim was not advanced by the applicant, but submitted that it arose squarely on the materials before the Tribunal in the sense considered.
Reference was made to the Courtney report which referred to attitudes of hatred, hostility, and disgust regarding the formerly dominant group (Chhetri) amongst Maoists and police, and suggested that intermarriage with them by members of groups they had formerly been seen to have oppressed was apprehended as especially repugnant (at p.17), and to Dr Courtney’s view that such:
attitudinal phenomena are accompanied by explicitly articulated prescriptions and proscriptions concerning inter-caste married people. They patently demonstrate that: a) inter-caste married people remain at real and great risk of persecution in numerous forms ranging from extreme violence to economic endangerment, and b) relocation within Nepal whereby a inter-caste married person attempted to live openly as such is impossible since such persecution…would inevitably ensue in any location in Nepal…Viewed as treacherous, immoral, selfish – deviant – and thus unnatural, inter-caste married people evoke anger, acute anxiety and violently expressed defensiveness. The most central fear is the threat perceived to the indiluted (sic) integrity of the ethnic/caste group and thus to marriage within the ethnic/caste group, reproduction and the family, and by culturally logical extension, the renewal of the purified nation through the bloody Maoist revolution. (Courtney Report p.18).
In addition, Dr Courtney expressed the view (p.19) that a refusal to observe the wishes of the family would “inevitably result in persecution, such as economic sanctions making survival extremely difficult or actual, violent assaults from actual family members or their delegates as mentioned very likely leading to death” and suggested that likely persecution from the wider community included “violent physical attack.”
Counsel for the applicant also referred to the fact that in support of the views expressed in the Courtney report, Dr Courtney referred to a statement from a young man who was a Chhetri intending to marry a person of a lower caste, who had been abused and beaten and whose intended partner had been beaten and raped by Maoists, and also to a conversation with an orthodox Brahmin in Varanasi (in northern India) about the significance of the family in Nepal and the fact that inter-caste liaisons and marriage were seen as treachery and deviance. It was submitted that this provided an explanation for why people were driven to violence against those who participated in inter-caste marriage.
The applicant submitted that it could be said to be quite plain that a claim as to fear of violence was advanced, not only insofar as Dr Courtney had discussed the results of and reasons for violence directed at people who engaged in inter-caste relationships or marriages, but also in the submission from the applicant’s solicitor referring to independent country information about repercussions in cases of inter-caste marriage including violence and harassment.
Counsel for the applicant also referred to the fact that in the course of the Tribunal hearing (transcript p.7) the Tribunal member had acknowledged that country information he provided to the applicant indicated that persons who entered inter-caste marriages faced social ostracism and difficulties with their families and that “[i]n some situations it has led to violence.” It was acknowledged that this was qualified by the Tribunal, which expressed the understanding that quite often that tended to be when a high caste woman wanted to marry a lower caste man and that it seemed to be less of a taboo if a higher caste man sought to marry a lower caste woman (transcript p.7).

It was submitted that on the material before the Tribunal a claim of violent reprisals against people engaged in mixed relationships or inter-caste marriages clearly arose and therefore that it had to be addressed, consistent with NABE at [61]-[62].
The applicant contended that the Tribunal did not deal with the questions of housing, employment or violence either expressly or by implication. It was submitted that to infer that the Tribunal had addressed the claims made about housing and employment and the claims which were said to arise on the material about violence would be to import into the Tribunal’s reasons words which did not exist, contrary to the very specific terminology used by the Tribunal.
It was pointed out that in summarising the claims made by the applicant in connection with his protection visa application, the Tribunal had made no mention of the claimed problems with employment or housing and submitted that while the Tribunal had referred to the Courtney report, it appeared that it did so only in the context of considering relocation to larger towns in Nepal.
Further, while in its description of the hearing the Tribunal stated that one of the documents given to the applicant at the hearing was RRT Country Advice Nepal, NPL 3704 4 of 21 July 2010, upon which the Tribunal stated that it was relying and while at the hearing the Tribunal had accurately stated that this information indicated that in some situations inter-caste marriage had led to violence, the reference to violence was not included in the summary of what occurred at the hearing in the reasons for decision. Mr Karp acknowledged that the Tribunal’s omission of its reference to violence in its account of the hearing may perhaps be attributed to its opinion (as expressed at the hearing) that the issue was whether the harm the applicant anticipated he may experience would constitute persecution in circumstances where the applicant did not say that he feared violence. It was, however, pointed out for the applicant that while the Tribunal drew a distinction between violence in the case of a higher caste woman wanting to marry a lower caste man compared to a higher caste man wanting to marry a lower caste woman, there was no suggestion that the Tribunal put to the applicant that persons in the latter position did not commonly suffer harm of such severity as to constitute persecution within the Refugees Convention.
It is necessary to determine which, if any, of the asserted claims had to be considered by the Tribunal and, if so, whether the Tribunal did deal with such claims. The Minister conceded that a claim regarding employment was put to the Tribunal, but submitted that claims relating to housing and violence were not put to the Tribunal. It was contended that no claim of a fear of violence to the applicant arose on the material before the Tribunal. In any event the solicitor for the Minister submitted that all the asserted claims were adequately dealt with by the Tribunal.
The Minister’s concession that the applicant made a general claim about problems in relation to employment if he married a lower caste girl was made having regard to the recitation of such a claim not only in connection with the protection visa application, but also at the Departmental interview and in the Tribunal hearing. Hence the Tribunal had to address such claim.
It was not disputed that the claim made by the applicant extended to a claim that he would have problems “keeping employment were he to marry a woman of lower caste” as contended in particular (a) to the ground in the amended application.
It is appropriate to have regard both to claims made to the delegate and to the Tribunal (and to contrast this with the position in relation to housing).
As submitted for the Minister, the claim in relation to employment and housing made in connection with the protection visa application was made in the context of a claim that the applicant and S could not safely move to live in another part of the country because “the problem” existed not only in his particular area but in the entire nation. He claimed this was a serious problem which would follow him wherever he went in his country. He claimed that he would encounter a lot of criticism from difficult people and “I cannot even settle down in other parts of the country. I will have problems finding and keeping employment and even in housing”.
However this was not the only occasion on which a claim about employment was made. According to the delegate, at the Departmental interview the applicant claimed he would find it difficult to secure employment in Nepal for a combination of reasons, including his economic status, his perceived low level of education and the fact that “if he proceeded with marrying a woman from a lower caste his family would sever all ties with him and he would lose economic benefits associated with having a father in the army”. This is clearly a general claim not limited to the context of relocation but is based on and said to arise out of feared family ostracism. The delegate recorded that “the applicant’s agent emphasised the importance of the applicant’s connection with the army through his father” and submitted that “if he lost this connection this would endanger his employment prospects”. In other words, the claims about employment made to the delegate were associated with and based on his claimed fear of familial ostracism. The delegate considered these claims as a claim about the consequences of the applicant’s father severing ties with him, but was not satisfied that if the applicant’s father severed ties with him this would inhibit the applicant’s ability to subsist within s.91R(2) of the Act and found that the harm feared was not of sufficient seriousness to amount to persecution for a Convention reason.
At the Tribunal hearing the applicant also claimed that “they” would have difficulty finding a job because they needed the support of people. Again, this claim was put in a manner that reflected the relationship between the employment claim and the claimed fear of loss of family and (possibly) community support.
The applicant made this claim in response to a suggestion from the Tribunal (at Question 33 p.99) that “maybe you have to go to Kathmandu if you wanted to avoid your family and your community, leave your village” and after he had referred to his lack of a certificate from Australia and lack of education as an obstacle to relocation. The solicitor for the first respondent conceded however that a claim about employment not limited to the re-location context was put by the applicant having regard to his evidence at the hearing (transcript p.9) that:
Yes, I do understand that, but remember what the thing is that we, we both like, the girl and me is not well qualified and is the problem for us like with having this inter-cast (sic) marriage to find a job as well. Because in Nepal they need the support of people, without any support they can’t find a job as well.
I note that in response to a Tribunal question, the applicant conceded that Ms S had just finished nursing training (transcript p.10).
The contention that there was also a general claim that the applicant would experience difficulties in housing were he to marry a woman of lower caste is more problematic. In the statement accompanying the protection visa application the only claim about housing was raised as an obstacle to relocation. There was no subsequent elaboration by the applicant such as to indicate that he made a general claim about housing problems as a consequence of inter-caste marriage.
Insofar as the applicant contended that such a claim was implicit in his claim that he would be rejected by his family and treated as an outcast, the rejection claim cannot of itself be said to carry a necessary implication that the applicant would have difficulties in finding housing were he to be ostracised. In contrast to the employment claim the applicant made no claim linking housing difficulties to family or social ostracism. It has not been established that the applicant claimed that he would have problems in finding housing were he to marry a woman of lower caste.
Particular (c) asserts that a claim that participants in inter-caste marriages in Nepal may be subject to violence arose clearly on the materials before the Tribunal. There was no reference to violence in the statement accompanying the applicant’s protection visa application. Indeed, it is not in dispute that the applicant did not make an express claim of a fear of violence against him. The written submissions made on his behalf referred to general country reports concerning mistreatment of inter-caste couples, including the possibility of violence, but the specific claims only concerned a fear of social ostracism of the applicant and persecution from his family and high caste society with significant influence among the Nepalese government and security agents. Further, at the Tribunal hearing the applicant’s adviser summarised the applicant’s claim to fear persecution consisting of the pressure to marry someone of his own caste and the “social, religious, cultural ostracism that he and the girl would face if he were to marry her and live in Nepal” (transcript p.18).
While there was general country information and also material in the Courtney report, and in material put to the applicant by the Tribunal, suggesting that at least some inter-caste marriages could lead to violence, this was never articulated as a claimed fear by the applicant himself. The information at a very general level before the Tribunal did not include any statement by the applicant that violence was something he feared.
While the Courtney report dealt with the question of difficulty in finding housing, it also did so in the context of considering the possibility of the successful relocation of an inter-caste married person, on the basis that the major and most attitudinally sophisticated cities in Nepal were also “very expensive concerning rental accommodation and competitive regarding finding employment” (report p.30).
Moreover, while on some four occasions at the hearing the Tribunal asked the applicant what he thought would happen to him, none of the applicant’s responses made any mention of violence against him (although he did refer to the possibility of suicide by his fiancée).
It is relevant that at the hearing the applicant was given a number of opportunities to clarify the consequences that he feared. Thus, in response to question 11 about what would happen to him (if he married the lower caste girl) the applicant claimed (transcript p.4) that he would experience:
mental torture from my own family and from the society and the community. Even though my family are also treated as a ….. even though they are from high class.
In response, the Tribunal member asked (transcript p.4):
Question 12 Major torture, what does that mean? What will happen to you?
However the applicant clarified that he had not said “major” torture, but rather “mental” torture as follows:
Applicant – Mental torture means like there will be like the community will organise a festival and like festival … or something, what do you call it, ceremony over there, they can’t … over there because of this relationship.
Question 13 – You’ll be excluded from festivals and--
Applicant – Festivals and ceremonies, even from my family as well.
Question 14 – Anything else? Any other harm that you anticipate there?
Applicant – The harm is like um, I have to leave my family, my childhood friend and the birth place as well.
Question 15 – You have to leave your family and what else did you say?
Applicant – My other childhood friends and the place where I born.
Question 16 – Any other harm that you anticipate there?
Applicant – Maybe the, the um, yeah, there’s things …
The Tribunal subsequently reiterated its understanding of the applicant’s claim as follows (transcript p.5):
Question 19 – So let me see if I’ve understood this right. You, you want to marry somebody from a lower cast (sic), and you anticipate that you would be ostracised by your family and society because of this relationship.
Applicant – Yeah.
Question 20 – And the consequences or the ostracism you anticipate is that you will be excluded from family and society, community activities, possibly rejected by your or not possibly, you said you will be rejected by your family. You’ll have to leave your home. You won’t be able to socialise with your childhood friends. Have I understood that correctly?
Applicant – Yeah. That’s right.
Question 21 – Any other reasons you don’t wish to return to Nepal?
Applicant – The main thing is that I have to, what do you call it, …from my family, that’s the big thing in my life.
The Tribunal put to the applicant that it understood he wanted a protection visa so he could marry his partner and bring her to Australia, and that part of the reason for that was because he didn’t want to have to confront his family. The Tribunal continued (transcript p.6):
Question 25 …You can avoid, you know, any issues with the family, with the society in Nepal. Right. Then you also said to me that the harm that you anticipate in Nepal and that you’ll have to leave your family and community and be excluded from that community. So isn’t the effect of being here or being excluded there the same thing? That you’re apart from your family and community and that you have to, you know, live apart from the environment that you grew up in?
Applicant – No actually, what the thing is like that like when I call to that, that girl over here when I get like … to her, I don’t, it’s not necessary to tell like I’m in relationship with the lower classed girl. If I have to go back to Nepal, I definitely I have to tell them about that I’m in a relationship and the family will like, the family will be excluded and be the mental torture.
At no point in the several opportunities given to the applicant was there any mention of fear of violence on the part of the applicant. There was no “substantial, clearly articulated argument relying upon established facts” in relation to violence raised by the applicant such that the Tribunal would be required to consider it in the sense considered in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 at [24].
Importantly, the Tribunal member also put to the applicant country information from external sources relating to the class system in Nepal and inter-caste marriages and what happened in those situations. In the course of describing such country information (at Q28), the Tribunal referred to the fact that some of the information was “not relevant to [the applicant] because it relates to some other claims”, and continued at transcript p.7:
Question 28 – Now what I understood from that material is that Nepal continues to be a conservative place and that inter-cast (sic) marriages are still rare. And that persons who enter into inter-caste marriages do face social ostracism and difficulties with their families. In some situations it has led to violence. Although that quite often, as far as I understand tends to be when a high cast woman is wanting to get married or does marry a lower cast man. It seems to be less, less of a taboo now if a higher cast man is seeking to marry a lower cast woman.
Nevertheless, even though I can see that these things happen, and in fact I would say that the things you’re afraid of may happen, for example, you may be rejected by your families and your communities and excluded from festivals and situations where you would otherwise be invited to attend. The issue for me is whether this harm that you anticipate that you may experience would constitute persecution. And I don’t think it is. I think it’s certainly unpleasant but I don’t think it comes up to the level of serious harm, which would constitute persecution. Do you want to say something about that?
Thus the Tribunal endeavoured to clarify the harm feared by the applicant and specifically raised the issue of possible violence. It outlined its understanding of the harm the applicant claimed to fear (which did not include violence), and gave him the opportunity to comment. In response, the applicant did not make any claim to fear violence either from his family or from society, but rather referred to the possibility of mental torture as discussed above.
In other words, while the Tribunal had before it a significant amount of country information and general information provided by the applicant, some of which referred to possible violence to some participants in inter-caste marriages, and raised such information with the applicant, there was no claim by the applicant or by his adviser that the applicant himself faced violence or feared facing violence. That was so despite extensive questioning on this point by the Tribunal and the Tribunal’s indication that it did not think that what the applicant anticipated that he may experience would constitute persecution.
As stated in NABE, notwithstanding that the Tribunal’s obligation extends to “reviewing the delegate’s decision on the basis of all the materials before it” (at [61]), “[a] judgment that the Tribunal has failed to consider a claim not expressly advanced is… not lightly to be made” (NABE at [68]). In the circumstances of this case, the references to possible violence to some of those in inter-caste marriages in the country information referred to for the applicant and in Dr Courtney’s report is not such as to raise a claim of a fear of violence on the part of the applicant “squarely” on the material before the Tribunal in the manner considered in SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137; [2003] FCAFC 120 at [19] per Cooper J referred to at [58] in NABE. As the Full Court stated in NABE at [58]:
The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.(emphasis added)
Such a claim did not arise clearly on the materials before the Tribunal (see NABE at [60]). This is not a situation in which “the case put by the [applicant] before the Tribunal has sufficiently raised the relevant issue that the Tribunal should have dealt with it” as Selway J observed in SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364; [2003] FCA 709 at [18] (and see NABE at [60]).
No jurisdictional error is established on the basis contended for in particular (c) to the ground in the amended application. Nor, as indicated, was a claim in relation to finding housing were he to marry a woman of lower caste raised as an integer of the applicant’s claimed fear of persecution. The fact that it was raised as an obstacle or practical impediment to relocation did not arise for consideration given the Tribunal’s findings.
This leaves for consideration the question of whether the Tribunal failed to address the claim made by the applicant about a difficulty in keeping employment. The Minister conceded that such a claim was made as an integer of the applicant’s claim to fear persecution and that it was not merely an issue raised as an obstacle to relocation or as evidence in support of his claims about family and social ostracism.
The remarks of the Full Federal Court in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [47] are in point. As the Full Court stated:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

It is not in dispute that the Tribunal made no express reference to employment problems in its findings and reasons. The applicant submitted that to infer that the Tribunal dealt with this issue would be to import into the reasons words that did not exist and that in view of the very specific terminology used by the Tribunal that could not be done in this case.
The Minister conceded that the applicant made claims regarding employment but contended that they (and any housing and/or violence claims) were “appropriately handled”. It was submitted that it could be inferred that the Tribunal was “mindful” of the employment claim and that having regard to the decision as a whole it was addressed in the Tribunal’s findings that the harm it accepted the applicant may suffer did not constitute serious harm amounting to persecution.
It is relevant that the claims made by the applicant at the Departmental interview and at the hearing about difficulties he would have in keeping employment if he married a lower-caste woman were not independent claims, but were linked to and based on his claimed fears of family and social ostracism and rejection which were accepted by the Tribunal (but were found not to amount to persecution).
Thus, the Tribunal accepted the applicant’s claim that if he proceeded with the marriage he may face social ostracism and rejection by his family, but was not satisfied that the harm he would experience in Nepal would amount to persecution for Convention purposes. More particularly, it accepted that conservative attitudes persisted and that the applicant may be “ostracised and rejected” by his family and society if he proceeded with the marriage and that “he may be discriminated against by conservative elements in society for the same reason”. In making these findings the Tribunal recognised that the non-exhaustive list of instances of “serious harm” in s.91R(2) of the Act extended to economic hardship. It accepted that the applicant may be shunned by his family and persons in his village if he married a woman from a lower caste, but found that the social ostracism he would face in this regard by his family and society would not amount to harm of such a nature or extent as to constitute persecution for Convention purposes. It also accepted that he may suffer family rejection and social disapproval, but again was not satisfied that such treatment would constitute serious harm amounting to persecution.
Given that the Tribunal accepted the applicant’s claims about social ostracism, rejection and discrimination (which included a claimed possible consequential difficulty in keeping employment if the applicant lost the support of his family) it can be said that findings about such consequential employment difficulties were “subsumed in findings of greater generality” as referred to in WAEE at [47]. It has not been established that the Tribunal failed to deal with an issue that if resolved one way would be dispositive of the review (WAEE at [47]). It has not been established that the Tribunal failed to have regard to a component integer of a claim in the sense considered in Htun at [25].
As no jurisdictional error has been established on the basis contended for in the amended application the application must be dismissed.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date: 13 July 2012