FEDERAL COURT OF AUSTRALIA

SZIAA v Minister for Immigration and Multicultural Affairs [2006] FCA 1076

SZIAA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 737 OF 2006

COWDROY J

16 AUGUST 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs in the amount of $3,200.

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

REASONS FOR JUDGMENT

1                     This is an appeal from the judgment of Driver FM which dismissed an application for review of a decision of the Refugee Review Tribunal. In its decision, the Tribunal had found that the appellant was not entitled to a protection visa.

BACKGROUND

2                     The appellant is a citizen of India who arrived in Australia on 16 May 2004. On 10 June 2004 he made application to the first respondent for a protection visa under the Migration Act 1958 (Cth). On 1 July 2005 a delegate of the first respondent refused the visa application and on 27 July 2005 the appellant applied to the Tribunal for a review of that decision.

3                     The appellant is a pharmacist who had previously worked in a hospital in Chennai in the state of Tamil Nadu, until July 2003. He had formerly lived with a close friend, Mr Kumar. The appellant claimed that he and Mr Kumar had assisted another friend, Mr Venkatesh, to elope with his girlfriend. The couple were from different castes and the marriage was opposed by both of their families. Nonetheless, with the assistance of the appellant and Mr Kumar they were married in June 2003.

4                     The appellant claimed that following the wedding the wife’s brother threatened to kill the appellant and Mr Kumar. The appellant resigned from his job and hid in a friend’s house. In December 2003 Mr Kumar died. The police recorded Mr Kumar’s death as a suicide, but the appellant, believing that he had been killed by the wife’s brother, fled to Australia.

5                     The appellant claimed that he could not live elsewhere in India because of language barriers. He could read and write English but did not speak Hindi.

Tribunal decision

6                     The Tribunal accepted that the appellant may have assisted to arrange a contentious marriage, and that the marriage may have caused friction between the appellant and members of the spouse’s family who opposed the marriage.

7                     However, the Tribunal did not accept that the appellant’s friend had been killed by the spouse’s brother. It said that although the police had been informed of the threats, they had concluded that the death was suicide. In the absence of other evidence, the Tribunal accepted the police finding. The Tribunal also held that even if Mr Kumar had been murdered by the wife’s brother, it was satisfied that the appellant would be afforded adequate and effective police protection under Indian law. Further, the Tribunal considered that, if necessary, the appellant would be able to relocate within Tamil Nadu, where the same language was spoken.

8                     The Tribunal also said that the fear in this case was of a personal and family-related harm, which was not a Convention reason for the grant of a visa.

APPEAL TO THE FEDERAL MAGISTRATES COURT

9                     The appellant appealed the decision of the Tribunal to the Federal Magistrates Court. Driver FM heard the appeal on 31 March 2006.

10                  Driver FM first considered the issue of whether the appellant had raised a Convention reason for the persecution which he alleged. At [6] his Honour stated as follows:

‘The only relevant Convention ground here was membership of a particular social group. In my view, in order to consider the risk of being persecuted, decision-makers must not limit their consideration to the attributes of the person claiming persecution. Decision-makers must also consider the attributes of those who the person claiming protection claims to fear. A person may be persecuted not because of his own race, religion, nationality, political opinion or membership of a particular social group but because of the race, religion, nationality, political opinion, membership of a particular social group of his persecutors.’

11                  Driver FM said the appellant claimed to have feared harm from the members of a specific caste because he had assisted a member of that caste to marry outside the caste. Driver FM said this squarely raised a claim of persecution by reason of membership of a particular social group. However, Driver FM accepted that it was open on the material for the Tribunal to conclude that the dispute in this case was personal and not caste-related.

12                  Driver FM also observed that the Tribunal had rejected the appellant’s claim that Mr Kumar had been murdered which he considered was a factual matter which was open to the Tribunal. His Honour said that, having rejected that claim, the Tribunal was entitled to find that the appellant’s fear was not well-founded.

13                  Further, Driver FM accepted that it was open for the Tribunal to find that effective state protection would be available to the appellant in India.

APPEAL TO THIS COURT

14                  The appellant, by notice of appeal, appeals the decision of Driver FM on three grounds as follows:

‘(a) the Refugee Review Tribunal erred in concluding that a refugee applicant may Be [sic] persecuted not because of his affiliation to a particular social group but because of the affiliation of the persecutor’s affiliation [sic] to a particular social group.

(b)               The Refugee Review Tribunal took an irrelevant consideration into account as to the significance of the nature of applicant’s friend’s death in refusing refugee status to the appellant.

(c)               The Refugee Review Tribunal failed to find that the Appellant has no state protection.’

15                  The appellant has provided written submissions and made oral submissions today. Those submissions have been directed to explaining his original claims and pointing out the factual errors in the Tribunal’s decision.

16                  As expressed, the first ground raised in the appellant’s notice of appeal seems to be a challenge made to the statement by Driver FM reproduced at [10] above, rather than a challenge to any statement by the Tribunal. This would seem curious since Driver FM’s statement would, if anything, have assisted rather than hindered the appellant’s cause. However, the appellant’s submissions suggest that he supports, rather than challenges, the statement of Driver FM.

17                  The first respondent has submitted that the statement at [6] by Driver FM is not supported by authority. It refers to Applicant A and Anor v Minister for Immigration and Ethnic Affairs and Anor (1997) 190 CLR 225 at 257-8, where McHugh J stated:

‘When the definition of refugee is read as a whole, it is plain that it is directed to the protection of individuals who have been or who are likely to be the victims of intentional discrimination of a particular kind. The discrimination must constitute a form of persecution, and it must be discrimination that occurs because the person concerned has a particular race, religion, nationality, political opinion or membership of a particular social group. Discrimination – even discrimination amounting to persecution – that is aimed at a person as an individual and not for a Convention reason is not within the Convention definition of refugee, no matter how terrible its impact on that person happens to be. The Convention is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return. Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent that private persecution.’

18                  I agree that Driver FM’s statement does not appear consistent with authority or with the provisions of the Convention. In determining whether persecution is for a Convention reason, it is the social group of the applicant for a protection visa which is relevant, not the social group of any persecutors. I consider that the principle suggested by Driver FM at [6] of his Honour’s reasons is incorrect. I make no finding about whether the persecution alleged by the appellant in this case could have constituted persecution for a Convention reason.

19                  In any event, Driver FM himself concluded that this was a case in which it was open to the Tribunal to find that the dispute was personal in nature, so the comments made by his Honour at [6] were not in fact applied in this case.

20                  In respect of the claim that the Tribunal took into account an irrelevant consideration, being the nature of the appellant’s friend’s death, I reject this submission. Whether his friend had been murdered or had committed suicide was clearly relevant to the determination whether the appellant’s fear of persecution was well-founded. It was also relevant to the question whether the dispute claimed by the appellant involved conduct which amounted to persecution. It was a matter which properly formed part of the Tribunal’s consideration and accordingly this ground cannot succeed.

21                  The third ground raised by the appellant is that the Tribunal failed to find that the appellant was not afforded state protection. This is a challenge to a factual finding of the Tribunal, which could only be the subject of challenge if there was no evidence upon which the Tribunal could make that finding. In fact, the Tribunal had evidence that the police had taken action in respect of degree certificates which had previously been stolen from the appellant, allegedly by the wife’s brother. There was no evidence before the Tribunal to suggest the appellant would be unable to access police protection. In these circumstances, the Tribunal was entitled to conclude that the appellant would be afforded state protection. In any event, even if it were accepted that state protection was inadequate, the Tribunal found that the appellant would be able to relocate within Tamil Nadu.

22                  The appellant was at pains to point out that the Tribunal had misunderstood his claims. In fact, it appears that the Tribunal did not misunderstand those claims; rather, it was not satisfied that material before it gave rise to an entitlement to a protection visa. Those findings were factual findings and were open to the Tribunal on the evidence before it. This Court does not have the power to revisit factual findings in these circumstances.

23                  For these reasons, I consider that the appeal should be dismissed with costs.

Associate:

Dated: 18 August 2006