FEDERAL COURT OF AUSTRALIA

SZEGA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1286

SZEGA AND SZEGB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 209 OF 2006

EDMONDS J

3 OCTOBER 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellants pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

The Proceedings

1                     This is an appeal from the Federal Magistrates Court (Lloyd-Jones FM) dismissing an application for judicial review of a decision of the second respondent (‘the Tribunal’) affirming a decision of a delegate of the first respondent (‘the Minister’) to refuse to grant the appellants protection (Class XA) visas.

2                     This is the second occasion on which an appeal to this Court has been brought from the Federal Magistrates Court in relation to the Tribunal’s decision. On the first occasion, Tamberlin J set aside orders made by the Federal Magistrates Court and remitted the matter for further consideration in accordance with law: SZEGA v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 878 (dated 24 June 2005).

Background

3                     I adopt the following background facts from his Honour’s reasons below: See SZEGA & Anor v Minister for Immigration & Anor [2006] FMCA 17 at [5] – [9].

4                     The appellants, who are citizens of India, are husband and wife who arrived in Australia on 4 August 2003 and 13 September 2003 respectively. On 19 September 2003 they lodged an application for protection (Class XA) visas with the Department of Immigration and Multicultural and Indigenous Affairs (‘the Department’) under the Migration Act 1958 (Cth) (‘the Act’). The application was refused by the delegate on 12 December 2003.

5                     The appellants are both Hindus from Andhra Pradesh. They claim to have left India due to problems arising as a result of their marriage. The husband claims to belong to the Bagepalli community and the wife claims to belong to the Cingareddy community. The appellants claim that prior to their marriage their courtship was conducted without the knowledge of either of the appellants’ parents. In November 2002 the respective parents were informed of the couple’s intention to marry. The appellants claim that:

(a)                The wife’s parents did not agree to the marriage and she was locked up and beaten.

(b)               The wife’s parents contacted members of the Telegu Desam party (specifically mafia members of that party) and warned the husband against further contact with his wife.

(c)                In December 2002 the couple fled their homes and married.

(d)               The wife’s parents have paid money to mafia people to kill both the appellants.

6                     The Tribunal noted both appellants’ travel details. The appellant husband arrived in Australia on 9 February 2003 and departed for India on 12 March 2003. He returned to Australia on 4 May 2003 and departed again on 1 August 2003. He returned to Australia a few days later on 4 August 2003. The appellant wife arrived in Australia on 9 February 2003 and departed for India on 12 March 2003. She returned to Australia on 13 September 2003.

7                     The Tribunal took oral evidence from each appellant individually but came to a joint decision on both applications. In respect of the husband, the Tribunal noted the following:

(a)                The husband stated that he had lived in his home town for ten years prior to his marriage. After his marriage in Turpeth in December 2002, the appellants lived in ‘other places’ including a friend’s house in the husband’s home town and a week in Madras in January 2003, prior to their first departure for Australia.

(b)               The husband stated that upon returning to India on 12 March 2003 he was in Madras for six to seven weeks before returning to Sydney on 4 May 2003 and he did not return to India.

The husband claimed he was in fear of his parents-in-law due to their connections with the Telegu Desam party and that they had utilised those connections to employ thugs to trace the couple with the intention of killing them. In Madras the couple came to no harm and although ‘they’ located the wife, no harm came to her either. The husband stated he could not relocate in India because he is a member of the Telegu community and his parents-in-law would find the couple through that community.

8                     In respect of the wife, the Tribunal noted that her claims and evidence were in keeping with her husband’s, however, she further claimed:

(a)                She feared her parents as they did not approve of ‘love marriages’.

(b)               In August 2003 hit-men hired by her parents had confronted her friends in her home town while she was in Madras and, as a result of her fear, she contacted the husband in Australia and then departed for Australia.

9                     She could not relocate outside the Telegu community due to her inability to speak any other language.

Grounds of Appeal

10                  The appellant’s notice of appeal raised four grounds, all of which were agitated, in identical or similar form, by the further amended application filed on 8 February 2005 and relied upon by the appellants on both occasions before his Honour below: 3 March 2005 and 12 December 2005.

First Ground

The Federal Magistrate erred in not finding that the Tribunal made jurisdictional error as it failed to consider the refugee claim based on the [appellants] belonging to a particular social group.

11                  In written submissions filed in this Court on 26 April 2006 the appellants submitted that the ‘particular social group’ that the Tribunal should have considered was ‘something similar’ to the following:

(a)                Couples in Andhra Pradesh consisting of a woman from Cingareddy community who married outside her community/caste.

(b)               Couples in Andhra Pradesh consisting of a woman from Cingareddy community who eloped and married outside her community/caste.

12                  The particularisation before his Honour below was slightly different (see his Honour’s reasons at [13]):

(a)                Couples in India consisting of a man and woman who come from different community/caste/race, who eloped and got married.

(b)               Couples in Andhra Pradesh consisting of a man and woman who come from different community/caste/race, who eloped and got married.

I do not think anything turns on the differences in form.

13                  The appellants’ written submissions identified two ‘legal errors’ which, they submitted, were made by his Honour. First they submitted that, while his Honour had, at [23] and [24] of his reasons, correctly identified the requirements that have to be satisfied for a group to be a particular social group within the meaning of the Convention, at [26] of his Honour’s reasons, his Honour erred in finding that neither of the groups postulated in the further amended application fits within that meaning. In other words, in the appellants’ submission, the groups postulated in the further amended application, and presumably those postulated in the appellants’ written submissions to this Court and referred to at [12] supra, satisfy the requirements for them to be particular social groups within the meaning of the Convention.

14                  Second, the appellants submitted that his Honour erred (at [28]) in accepting the respondent’s submission that, having regard to the material the Tribunal had before it, it was quite reasonable for the Tribunal to regard no claim to have been advanced premised on a particular social group. In other words, they submit that his Honour should not have accepted the claims, as advanced, had been dealt with fully and adequately by the Tribunal from the material it had before it, as his Honour did at [29] of his reasons.

15                  As to the first alleged error, the difficulty with his Honour’s finding at [26] of his reasons is that it is devoid of any reasoning process. In other words, it is not apparent why his Honour found as he did that the requirements for a group to be a particular social group, as articulated in the judgments of the High Court in Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 and Applicant S v Minister for Immigration & Multicultural Affairs (2004) 206 ALR 242 referred to by his Honour at [23], [24] and [25] of his reasons, were not satisfied by either of the groups postulated in the further amended application. He merely accepted the submission of the respondent that they did not. This criticism is resonant of that made by Tamberlin J of his Honour’s earlier judgment.

16                  But the real difficulties for the appellants with this ground of appeal as a whole are threefold:

(a)                Even assuming that the groups postulated in their further amended application are particular social groups within the meaning of the Convention, and further assuming that the appellants are members of one or both of these groups, their membership of one or both of these groups is not the essential and significant reason (s 91R(1)(a) of the Act) they fear persecution at the hands of the wife’s parents, rather it is by reason that the wife is the daughter of their feared persecutors and her husband is, as a result of the marriage, their son-in-law. One is reminded of what Dawson J said in Applicant A at 242 – 243:

‘The requirement that the feared persecution be by reason of “membership” of a particular social group was taken by Black CJ (with whom French J agreed) in Morato v Minister for Immigration [(1992) 39 FCR 401]  to require that the persecution be on account of what a person is — a member of a particular social group — rather than upon what a person has done or does”. But as Black CJ himself recognised, that statement should not be taken too far. The distinction between what a person is and what a person does may sometimes be an unreal one. For example, the pursuit of an occupation may equally be regarded as what one is and what one does. At other times, the distinction may be appreciable but not illuminating. For example, the acts of conceiving and bearing a child may be what people do, but the result of those acts — that the persons involved are parents — is quite central to what they are.

However, I think that Black CJ’s remarks were directed more to the situation of a generally applicable law or practice which persecutes persons who merely engage in certain behaviour or place themselves in a particular situation. For example, a law or practice which persecuted persons who committed a contempt of court or broke traffic laws would not be one that persecuted persons by reason of their membership of a particular social group. Where a persecutory law or practice applies to all members of society it cannot create a particular social group consisting of all those who bring themselves within its terms. Viewed in that way, Black CJ’s distinction between what a person is and what a person does is merely another way of expressing the proposition which I have already stated.’ (Footnotes omitted);

(b)               the appellants do not themselves constitute a particular social group because the only characteristic or attribute they have in common is a fear of persecution at the hands of the wife’s parents or their ‘hired thugs’: see Applicant S per Gleeson CJ, Gummow and Kirby JJ at [39]; and, in any event

(c)                the appellants made no claim before the Tribunal that their feared persecution was predicated on their membership of a particular social group and there was no material before the Tribunal from which such a claim clearly arose: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 219 ALR 27 at [60]. In its reasons, the Tribunal observed:

‘The Tribunal asked the [appellant husband] who he fears upon return to India. The [appellant husband] stated that he fears his parents-in-law. He stated that they have connections with the Telega [Desam] party and they have used their connections in the party to trace them and if possible kill them. They have hired thugs from the party to harm the [appellant husband].

The Tribunal asked the [appellant husband] why he fears them. The [appellant husband] stated that he married against the wishes of his parents-in-law and now they wish to harm you [sic].’

And a little later:

‘The Tribunal asked the [appellant] wife who she fears upon return to India. The [appellant] wife stated that she feared her parents. They have hired hit-men from the ruling party (Telegu Desam) because she married a person other than the man they chose for her to marry. The [appellant] wifestated that they do not approve of her marriage. They put her in a room for two days to stop her from marrying her current husband. The Tribunal asked the [appellant] wife why they don’t approve of her husband. The [appellant] wife stated that her parents do not approve of “love marriages” but rather they approve of arranged marriages. The [appellant] wife stated that they wanted her to marry someone else.’

Ultimately, the Tribunal wrote:

‘The [appellants] did not claim and there is no evidence to suggest that their claims are Convention related – namely that they fear harm for reasons of their race, religion, nationality, membership of a particular social group or political opinion.’

In my view, his Honour below was quite entitled to come to the view he did at [28] and [29] of his reasons. This ground of appeal cannot be sustained.

Second Ground

The Federal Magistrate erred in not dealing with Ground 2 which was a race-based claim.

17                  Ground 2 before his Honour stated:

‘Tribunal made jurisdictional error by not considering whether persecution based on caste is Convention-related.’

18                  His Honour purportedly dealt with this ground at [30] and [31] of his reasons. Apart from the first three sentences of [30] where his Honour does address this particular ground, I agree with the written submission of the appellants that it is difficult to understand the relevance of his Honour’s comments in the latter part of [30] and in [31] of his reasons that the ‘hired thugs’ were not politically motivated and had no political antipathy towards the appellants personally. Indeed, the relevance of those comments to this particular ground escapes me.

19                  The appellants’ submission on this ground was that caste is a variant of race. If this is intended to mean that persecution for reasons of caste is persecution for reasons of race, I do not agree. At most it might amount to persecution for reasons of membership of a particular social group. But as I have already indicated at [17(c)], the appellants made no claim before the Tribunal that their feared persecution was predicated on their membership of a particular social group and there was no material before the Tribunal from which such a claim clearly arose. It is true, as the appellants point out in their written submission, that in their original applications for protection visas they did respond to a question: ‘What do you fear may happen to you if you go back to that country?’, by writing that they ‘… are Hindu by religion and belong to different ethnic communities and social groups’. I also note that, in response to the immediately preceding question: ‘Why did you leave that country?’, they responded: ‘We left the country due to consistent fear of life threats because of our background of different communities and complication arises on our getting married’. In their written submissions the appellants submitted that the Tribunal did not enquire whether the appellant wife’s parents were angry because her husband was from a different community/caste. In my view, the Tribunal was under no duty to enquire, the more so because the appellants had already told the Tribunal, the appellant wife in express terms, that the reason why her parents were angry with them was because she married a person other than the person who her parents had arranged for her to marry.

20                  No claim was made before the Tribunal that the appellant husband feared persecution from the Cingareddy community because he was a member of the Bagepalli community, nor was there any material before the Tribunal from which such a claim clearly arose; and no claim was made before the Tribunal that the appellant wife feared persecution from the Bagepalli community because she was a member of the Cingareddy community, nor was there any material before the Tribunal from which such a claim clearly arose. There was no claim to persecution by either appellant, from the community of the other appellant, by reason of the first mentioned appellant’s membership of his/her community, and there was no evidence before the Tribunal from which the Tribunal could conclude that such a claim or claims clearly arose.

21                  As indicated, I do have some difficulty with the relevance of his Honour’s comments in the latter part of [30] and in [31] of his reasons. However, for the foregoing reasons, there is no error in his Honour’s conclusion in the first three sentences of [30]. It follows that this ground of appeal cannot be sustained.

Third Ground

His Honour erred in failing to hold that the Tribunal made jurisdictional error as it based a key finding on no evidence. There is no evidence that the [appellant] wife was not harmed in Chennai.

22                  The Tribunal finding on this issue was:

‘The [appellants] themselves gave evidence at hearing that during the time they spent in Channai [sic] (Madras) in 2003, neither the [appellant husband] nor the [appellant] wife came to any harm whatsoever.’

23                  His Honour below said in his reasons:

‘[35] The basis of the [appellants’] complaint seems to be that there were threats made against friends or associates of, at least, the wife and probably both [appellants]. The asserted error is that there is no evidence for the above statement in the Tribunal’s “Findings and Reasons”. Counsel for the respondent submitted the finding of the Tribunal was a perfectly understandable statement as the [appellants] personally had not been subjected to any harm and there was evidence to that effect which came from the [appellants] at the hearing.’

24                  His Honour noted that the Tribunal had recorded the appellant wife giving the following evidence during the Tribunal hearing in respect of what happened to her when she was living in Chennai in 2003 for approximately seven months:

‘The [appellant] wife stated that the hit-men came to her house and threatened her and she was scared and called her husband in Australia, and came to Australia.

The Tribunal asked the [appellant] wife if they came to her house why didn’t they just kill her since they were contracted to do [sic]. The [appellant] wifestated that they actually came to the home of other friends and made the threats. The Tribunal noted that she had mentioned the hit-men coming to her house and could she explain this inconsistency. The [appellant] wife stated that the hit men actually went to the home of friends in Praddatur and threatened them there. The [appellant] wife stated that she never had any direct threats but she was afraid because she [sic] was threatening her friends.’

25                  His Honour concluded that the finding made by the Tribunal was open to it given that that was the state of the evidence (at [37]):

‘There was no transcript or hearing tapes filed in these proceedings, nor have the [appellants] made any submissions that the material recorded in the Tribunal’s decision which challenges or suggests that the evidence recorded in the Tribunal’s decision is in any way inaccurate or different from the evidence given by the appellants during the Tribunal hearing.’

26                  For these reasons, his Honour below held that this ground could not be sustained. In their written submissions, the appellants attacked his Honour’s finding below on two bases. First, they said that the Tribunal erred in not finding that they were subjected to any harm whatsoever. It is said this is wrong because the appellant wife gave evidence that she was in constant fear. The Convention talks about well-founded fear, thus fear of harm, so the submission went, is sufficient. That is undoubtedly right, however, it does not detract from the fact that the finding of the Tribunal was correct, namely, that on the evidence the appellant wife had not been harmed in Chennai and to say that there was no evidence that she was not, flies in the face of the appellant wife’s own evidence.

27                  Second, it is said that the Tribunal may have thought that the direct telephone threat or indirect threat, that is, threat from knowing that someone is after them, is not harm. The Tribunal, so it is submitted, thus made legal error in understanding the word ‘harm’ and that constitutes jurisdictional error. In my view, there is no doubt that the Tribunal’s finding was directed to physical harm and the fact remains that the appellant wife was not subjected to any physical harm while she was in Chennai and that was her evidence. For these reasons, this ground cannot be sustained.

Fourth Ground

His Honour erred in not holding that the Tribunal decided that it was reasonable for the appellants to relocate on two factual premises that did not exist.

28                  The two factual premises upon which it is alleged the Tribunal decided that it was reasonable for the appellants to relocate, but which, it is further alleged, did not exist, were:

1.                  The Telegu Desam party had no influence outside Andhra Pradesh.

2.                  While in Chennai neither the appellant husband nor the appellant wife came to any harm whatsoever.

29                  His Honour below accepted the respondent’s submission that the Tribunal’s finding on relocation was unobjectionable (at [43]).

30                  In their written submissions, the appellants expanded on the alleged non-existent premises as follows:

1.                  The Tribunal misunderstood the role of the Telegu Desam party in Indian politics and called it a regional party having influence only in the state level.

2.                  The Telegu Desam party, in addition to ruling at state level at Andhra Pradesh, was one of the most influential parties within the Indian Central Government. It had several ministers in the Central Government. Even the speaker of the Lok Sabha (Lower House of Parliament) was from the Telegu Desam. The Telegu Desam was very powerful within the Central Government. It thus had power outside the state of Andhra Pradesh. These fundamental facts should have been familiar to the Tribunal.

3.                  The appellant wife gave evidence that the Telegu Desam thugs were searching for her at Chennai. This shows that the appellants were not safe outside Andhra Pradesh. Also, even if the Telegu Desam party is state based, there is no doubt that it has national status and influence throughout India.

31                  The second alleged non-existent premise may be disposed of shortly. It is clear that while in Chennai neither the appellant husband nor the appellant wife came to any harm; the evidence given by both clearly supports that finding with the consequence that the second factual premise does exist.

32                  The first factual premise, that the Telegu Desam party has no influence outside Andhra Pradesh, is not strictly speaking correct. It is true that the Tribunal said:

‘The Tribunal notes that according to the independent evidence … the Telegu Desam party is a state based party that does not operate outside Andhra Pradesh.’

33                  However, it is important that the Tribunal’s findings in this regard be understood in context. In its reasons, the Tribunal said:

‘The Tribunal accepts that the [appellants] were targeted by thugs from the Telegu Desam party, hired by the [appellant] wife’s parents-in-law in Andhra Pradesh, however, it also accepts that their interest in the [appellant] was of a very local nature. The Tribunal notes that according to the independent evidence (see above) the Telegu Desam party is a state based party that does not operate outside Andhra Pradesh. The [appellants] themselves gave evidence at hearing that during the time they spent in Channai [sic] (Madras) in 2003 neither the [appellant husband] nor the [appellant] wife came to any harm whatsoever. The Tribunal is satisfied on the evidence before it, that the [appellants] do not have any profile that would place them at risk outside
Andhra Pradesh. The Tribunal is satisfied on the [appellants’] claims and the independent evidence that the [appellants] can live in other parts of India other than Andhra Pradesh, where they claim to fear harm, and that they will obtain a meaningful remedy against risk of any persecution they may face in Andhra Pradesh. The Tribunal is satisfied on the [appellants’] own evidence and that of the independent evidence that the [appellants] would be out of the reach of their problems in other parts of India outside their home in Andhra Pradesh.’

34                  After referring to the judgment of the Full Court in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437, the Tribunal said:

‘If it is not reasonable for a person who has a well founded fear in part of a country to relocate to another part, then the person’s fear of persecution in relation to the country as a whole is well founded. Alternatively, if it is reasonable for the applicantto relocate to another part of the country then that applicant’s fear is not well-founded.’

35                  The Tribunal then said:

‘The [appellants] are both young (the [appellant husband] is 29 years-old and the [appellant wife] is 21 years old). The [appellants] are educated and have employment qualifications (he has a degree in Commerce and had his own business, while she has undergone a Beautician and Hotel Management Course). They had the financial and personal ability to arrange a visa for and travel to Australia. They speak, read and write English and Telegu and [h]e also speaks, reads and writes Tamil. In light of their ages, qualifications and language abilities, both the [appellant husband] and the [appellant wife’s] employment prospects upon return to India would seem to be positive. Under these circumstances, the Tribunal is satisfied that relocation is a reasonable and feasible option for the [appellants]. The Tribunal does not accept that the [appellants] are at risk in every part of India nor does it accept [based on the [appellants] own evidence and country information referred to above] that the [appellants] will face persecution for a Convention reason should they relocate.’

36                  The Minister submitted that the weight that was to be given to the material concerning the operation of the Telegu Desam party was a matter for the Tribunal and referred me to what was said by a Full Court of this Court in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11].

37                  In my view, this ground cannot be sustained. I would add that this finding on relocation is a separate and independent basis upon which the Tribunal’s decision may be upheld, so that even if I were wrong in relation to the other grounds of appeal, there would be no utility to granting relief: See SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214 at [232] – [233] per Allsop J.

38                  After expressing its lack of satisfaction, in light of the appellants’ own evidence and the independent evidence, that the appellants are refugees within the meaning of the Convention, the Tribunal, as if by way of postscript, said:

‘Finally, the [appellants] arrived in Australia on 9 February 2003 and then departed for India on 12 March 2003. They did not apply for protection at that time. The [appellant husband] then returned to Australia on 4 May 2003 and stayed until 1 August 2003 and again he did not make any application for protection. He returned on 4 August 2003 and did not make an application until 19 September 2003. As Heerey J noted in Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347, it is legitimate to take into account an applicant’s delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant’s claimed fear of persecution. In the present case the fact that the [appellants] did not make an application for protection in February-March 2003, and the [appellant husband] resided in Australia for four months without making an application for protection suggests to the Tribunal that neither [appellant] genuinely fear the [appellant] wife’s parents (and their thugs).’

39                  His Honour below observed at [44] that this was a ‘third basis’ upon which the Tribunal rejected the appellants’ claims but noted that ‘the issue’ was not pleaded in the further amended application. It is not clear what issue his Honour had in mind. His Honour said, however, that he believed it should be considered and dealt with as the appellants are self-represented litigants and the court must independently consider whether an arguable case based on the material could be made out. His Honour went on to recite the circumstances noted in the quotation from the Tribunal’s reasons in [39] supra and the suggestions drawn by the Tribunal therefrom, however, for some reason his Honour did not go on to consider and deal with this unidentified issue.

40                  This matter was not touched upon in the appellants’ notice of appeal but the Minister again raised the matter on the hearing of the appeal in the context of what was said in SZEEU.The concern was expressed that reliance on delay by the Tribunal in the making of a protection visa application may, without anything more, constitute information in terms of s 424A(1) of the Act, such that a duty will arise for the Tribunal to comply with the requirements of that section.

41                  The Minister contends that there are two answers to such a submission, if it had been put, in the present case. First, that the information has to have been considered by the Tribunal to be the reason or a part of the reason, for affirming the decision under review and that in the present case, as the Tribunal had already relied on two independent and separate bases, namely, the no Convention nexus and its relocation finding for affirming the decision under review, that requirement was not satisfied.

42                  Furthermore, it was submitted that even if this was found not to be the case, the information in question was information which the appellants gave for the purpose of the application and so fell within the exception in s 424A(3)(b).

43                  As I have already noted, such an issue was not raised as a ground of appeal, however, if it had been raised then having regard to the bases for the Tribunal’s decision, in my view, the information would not be ‘information that the Tribunal considers would be the reason or part of the reason, for affirming the decision that is under review’: s 424A(1)(a).

44                  For the foregoing reasons, the appeal must be dismissed with costs.

Associate:

Dated: 3 October 2006