SZJDW v Minister for Immigration and Citizenship

• Jurisdiction: Australia Federal only
• Judgment Date: 01 August 2007
• Neutral Citation: [2007] FCA 1121
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

SZJDW v Minister for Immigration and Citizenship [2007] FCA 1121

SZJDW AND SZJDX v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

No NSD 737 of 2007

FINN J

1 AUGUST 2007

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 737 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZJDW First Appellant SZJDX Second Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	FINN J
DATE OF ORDER:	1 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed with 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 737 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZJDW First Appellant SZJDX Second Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	FINN J
DATE:	1 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal from a decision of a Federal Magistrate dismissing an application for judicial review of a decision of the Refugee Review Tribunal which refused the grant of Protection (Class XA) visas to the applicants who are husband and wife. Only the wife made substantive claims so, as a matter of convenience, I will refer to the couple collectively as the appellant.

2 It is important in this matter to note that the application was first dealt with at a “show cause” hearing under R 44.12 of the Federal Magistrates Court Rules. There were three issues before his Honour at that hearing, two being grounds contained in the application itself, the third, arising from written submissions that had previously been filed. The Federal Magistrate determined at that hearing that only two issues merited a final hearing and he made show cause orders accordingly against the respondent Minister in respect of those issues. They were:

(a) whether the Tribunal erred in finding that the claimed particular social group of “Hindu-Muslim couple who eloped” is extrinsically identified by the shared fear of persecution; and

(b) whether the Tribunal erred in considering past harm suffered as private in nature rather than as the actions of rogue officials.

3 The first of these related to the issue raised in submissions; the latter, to one of the two grounds of the application. Seemingly the other ground of the application was dismissed summarily under R 44.12, though no order to that effect is before me. That ground was not in issue – and could not have been put in issue by the applicant – at the final hearing giving rise to the judgment under appeal: see R 44.12(1)(b) and 13(2).

4 I refer to this procedural matter for this reason. The appellant’s grounds of appeal to this Court set out as Ground 1 the substance of the ground not dealt with by the Federal Magistrate, it being alleged that the Federal Magistrate erred in law in dismissing the application without considering that ground. No application for leave to appeal has been made in relation to the dismissal of that part of the application: cf R 44.12(2). The appellant’s written submissions, nonetheless, address the substance of the ground. I will deal with this matter as if an application for leave had been made.

BACKGROUND

5 The appellant, an Indian national, claimed to have a well-founded fear of persecution for, at least (see below), reasons of religion. Put in short form the essence of her claims were that:

(a) her mother, a Hindu, married a Muslim; this gave rise to fights between her mother and her husband’s family; and the couple separated when the appellant was seven;

(b) the appellant was raised as a Hindu; she started seeing a Muslim; her uncles arranged a marriage with a Hindu; she was beaten by her uncles when they discovered her relationship with a Muslim with whom she then eloped; and they married in April 2005;

(c) her family was said to have considered itself shamed and dishonoured by this; she heard that they intended forcibly to separate the couple and take her back, so they kept changing their location;

(d) “On 28 September at about 06 p.m. there arrived my Uncles at that place (Chanderpur) with two other Policemen. My uncles got caught of my husband by the hair and started hitting him and also they slapped me and they tried to drag both of us into the Van they came in and both of started shouting and crying loudly and many neighbours gathered and they were shouting at them and after warning us they left. Before they left they said ‘if you don’t came back we will not let you live.”

6 The Tribunal’s findings, insofar as presently relevant, were that (i) the appellant suffered serious harm; (ii) it was essentially for reasons of religion, i.e. it was Convention related; (iii) there was no particular social group of “Hindu-Muslim couple who eloped” or for that matter of “Hindu-Muslim couples”; (iv) that serious harm was suffered at the hands of her uncles and the two police officers; (v) the harm was private in nature; (vi) the two police officers involved in the beating of the appellant and her husband were acting as friends of the uncles and not in their official role or capacity; (vii) the social and political status of her uncles were not such that she would be denied adequate State protection; and (viii) she would be able to obtain State protection that would accord with international standards, for any private harm feared.

7 The visa application was refused.

THE FEDERAL MAGISTRATE’S DECISION

8 Of the two issues the subject of the show cause order, his Honour clearly and properly had misgivings about the Tribunal’s finding that “Hindu-Muslim couple who eloped” was not capable of constituting a “particular social group” for the purposes of the Convention. He observed:

“Whether the postulated social group of ‘Hindu Muslim couple who eloped’ is extrinsically (sic) identified by a shared fear of persecution [the Tribunal held the group was ‘intrinsically’ so identified] is a debatable proposition. It is arguable that such a social group may be recognised in India independently of any fear of persecution. Essentially, however, it is for the Tribunal to determine whether it accepts that a postulated particular social group exists. An error of fact by the Tribunal in coming to a conclusion on that question would not establish a jurisdictional error unless the fact were a jurisdictional fact.”

9 There is in my view a very real question as to whether the Tribunal correctly understood and correctly applied the principles stated in Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 at [36] as it purported to do: see SBWC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1104. No consideration appears to have been given either to societal perceptions in India or to “legal, social, cultural and religious norms prevalent in [Indian] society”: cf Applicant S at [50]. This, though, is not a matter I need explore for reasons I give below.

10 In submissions to this Court, the appellants contend that “at no stage the Appellants advance a ‘Social Group’ argument before the Tribunal. The main contention of the Appellants argument was because of ‘religion’ they succumbed to harm”. Whether or not the appellant has disavowed any challenge to the Tribunal’s particular social group conclusion (notwithstanding it was one of the “show cause” issues) as she appeared to do at the present hearing, any error that the Tribunal may have made in this regard was, I consider, inoperative because of the conclusion it arrived at on the issues of religion and of State protection in any event.

11 The Tribunal, as I have indicated, was satisfied that the appellant suffered serious harm for reasons of religion. That finding in context would seem to be one that related to the appellant’s inter-faith marriage. As such it seems indistinguishable from a finding of persecution by reason of being a Hindu-Muslim couple, i.e. in each instance the cause of any persecution is religious and is related to the parties being in an inter-faith marriage. In this sense the appellant attributes her harm to “religion”. For this reason, the learned Federal Magistrate was probably correct in concluding that a claim to be a member of a particular social group comprised of Hindu and Muslim couples “would probably have added...