SZOTE & Anor v Minister for Immigration & Anor [2011] FMCA 94 (17 February 2011)

Federal Magistrates Court of Australia

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SZOTE & Anor v Minister for Immigration & Anor [2011] FMCA 94 (17 February 2011)

Last Updated: 1 March 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOTE & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 94

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – merits review not available in judicial review proceedings.

Migration Act 1958, ss.36, 91R, 424AA, 425, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

First Applicant:

SZOTE

Second Applicant:

SZOTF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2390 of 2010

Judgment of:

Cameron FM

Hearing date:

17 February 2011

Date of Last Submission:

17 February 2011

Delivered at:

Sydney

Delivered on:

17 February 2011

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

(1) The application be dismissed.
(2) The applicants pay the first respondent’s costs fixed in the amount of $3,700.00.
(3) The applicants have four months to pay the costs ordered in Order 2.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2390 of 2010

SZOTE

First Applicant

SZOTF

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants, who are wife and husband respectively, are citizens of Nepal. They claim to fear persecution in Nepal because of their inter-caste marriage.
2. The first applicant arrived in Australia in February 2007 as the holder of a student visa. Her husband, the second applicant, arrived in September 2007 as her dependent. On 14 January 2010 the applicants applied for protection visas, the second applicant being included in the application as a member of the first applicant’s family unit. These applications were refused by a delegate of the first respondent (“Minister”) on 17 May 2010. The applicants then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicants were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.
3. In these judicial review proceedings the Court cannot rehear the applicants’ applications for visas. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
4. For the reasons which follow, the application will be dismissed.

Background facts

5. The facts alleged in support of the applicants’ claim for protection visas are set out on pages 4-10 of the Tribunal’s decision. Relevantly those facts were as follows.
6. The first applicant made the following claims in her protection visa application and at a Tribunal hearing on 17 August 2010:
   1. Nepalese society and culture does not accept inter-caste marriages;
   2. she and the second applicant are from different castes. Their families objected to their marriage for this reason;
   100. on 10 April 2004 they ran away. The first applicant’s parents filed a kidnapping charge against the second applicant and they were caught by the police four days later. The police assumed that the second applicant was trying to traffic the first applicant to India and charged him with kidnapping. The applicants were detained by the police for seven days during which time they were “manhandled” and beaten. The charges were dismissed after the first applicant gave evidence that she had not been trafficked;
   4. they ran away again on 22 May 2004 and were married the following day. Thereafter they lived in Kathmandu until their departure for Australia in 2007;
   5. both her and her husband’s lives had been threatened. She had been told that if she went to live with her husband’s family in Rolpa, she would be burnt to death. However, there had been no problems with them, impliedly because she and her husband had lived in Kathmandu rather than Rolpa. Nevertheless she said that her father had threatened her husband’s life. Threats were made against him on a daily basis;
   6. she did not think that the authorities in Nepal could protect her because security was poor and was influenced by power, money and politicians;
   7. she and her husband lived in Kathmandu in very difficult conditions from May 2004 until February 2007. During this period they were neglected by society, people talked about them and were backbiting them wherever they went. The main problem was that her father had not wanted them in society; and
   8. her father helped her to get a visa to come to Australia. He wanted to send them away.

The Tribunal’s decision and reasons

7. After discussing the claims made by the applicants and the evidence before it, the Tribunal found that it was not satisfied that the applicants are persons to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
   1. the Tribunal accepted that the applicants were from different castes and that their families objected to their marriage. The Tribunal also accepted that, in an effort to send them away so that people would cease to talk about them, the applicants’ families provided affidavits in support of their respective visa applications. However, the Tribunal did not accept that the applicants’ families wished to kill them, noting in this respect that they had lived in Kathmandu for over two and a half years after their marriage, impliedly without coming to harm. The Tribunal considered that this suggested that the applicants had exaggerated their evidence regarding the problems they had had as a result of their marriage;
   2. the Tribunal also accepted that the applicants faced prejudice from Nepalese society at large because of their inter-caste marriage. However, while accepting that such problems are unpleasant the Tribunal found that, without more, this sort of social ostracism did not amount to persecution involving serious harm as required by the Act;
   100. the Tribunal accepted that the applicants ran away from Kathmandu on 10 April 2004 and were subsequently detained and possibly beaten by the police. However, the Tribunal did not accept that there was a real chance that they would be arrested, detained, beaten or prosecuted for any reason related to their marriage, noting in this regard that:
        1. according to the first applicant, they were detained because it was presumed that the second applicant was trying to traffic the first applicant to India. However, the case against the second applicant was dismissed after the first applicant gave evidence to the contrary; and
        2. the applicants did not claim to have had any further problems with the authorities in Nepal after this incident although they remained in the country for over two and a half years after their marriage;
   4. the Tribunal did not accept that the applicants faced a real chance of persecution in Nepal by reason of their marriage were they to return there;
   5. the Tribunal also noted that in accordance with the 1950 Treaty of Peace and Friendship between India and Nepal the applicants have a right to enter and reside in India upon presentation of their passports and it did not accept that there was a real chance that they would be discriminated against in relation to employment in India by reason of their Nepalese nationality in such a way, or to such an extent, that they would not be practically able to exercise their right under that treaty to live and work freely in India; and
   6. the Tribunal found that the applicants did not take all possible steps to avail themselves of their right to enter and reside in India as required by s.36(3) of the Act. Consequently, the Tribunal concluded that even if it accepted that there was a real chance that the applicants would be persecuted if they returned to Nepal, pursuant to s.36(3) of the Act, Australia would not owe them protection obligations.

Proceedings in this Court

8. In the application commencing these proceedings under the heading “Final orders sought by the applicant/s” the applicants stated:
   • 1. Tribunal did not accept that we had well-founded fear of being prosecuted if we return.
   • 2. Tribunal also said that if the parents were against why they helped us come to Australia.
9. Under the heading “Grounds of application” the applicants set out a number of facts generally supportive of their allegation that they fear persecution in Nepal and explaining why their parents helped them come to Australia.
10. In oral submissions the first applicant also submitted that:
    1. even though she would be able to live in India her husband has relatives there who would give him trouble;
    2. she had no idea where she would start if she went to India; and
    100. if she went to India she would be discriminated against because she is Nepalese.

Grounds raised in application

11. The Tribunal’s decision was based on two separate and independent findings. The first of these was that it was not satisfied on the basis of the evidence before it that the applicants had a well-founded fear of persecution for a Convention reason. It rejected their claims that they faced persecution by reason of their marriage. It also found that in any event Australia is not taken to have protection obligations to them because they had not taken all possible steps to avail themselves of the right to enter and reside in India provided to them by the 1950 Treaty of Peace and Friendship between India and Nepal.
12. The application filed in the Court commencing the proceedings addresses only the first of these findings. Consequently, even were it to be made out, the other basis for the Tribunal’s decision remains unaddressed. This would mean, subject to the matters which the applicant has raised in her oral submissions, that the Tribunal’s decision would not be set aside.
13. However, turning to the allegation which the applicants have made in their initiating application, it is plainly one which is addressed to the Tribunal’s decision on the merits of their review application, rather than to whether that decision is affected by jurisdictional error. Decisions on the merits of applications brought to the Tribunal are ones which are solely within the province of the Tribunal and the Court has no power to substitute its views on whether the applicants should have succeeded for those of the Tribunal. The Court’s role is limited to ensuring that the Tribunal applies proper procedures and properly applies the law in the reaching of its decision. Consequently, the allegation made in the application provides no basis upon which the Tribunal’s decision may be set aside.

Oral submissions

14. Turning to the matters raised by the first applicant in her oral submissions, the first of these was based on the fact that her husband has relatives in India who would give them trouble. The first applicant conceded that she had not raised this issue with the Tribunal and it appears that it was not raised at an earlier point either. As a matter which was not before the Tribunal it was not something which the Tribunal could consider so the fact that it was not cannot amount to jurisdictional error.
15. The allegation that the first applicant did not know where she would start if she went to India was, in substance, addressed by the Tribunal at [53] and [54] of its decision. It accepted that staying in Australia would be easier for the applicants now that they are here, but noted that they had not taken all possible steps to avail themselves of their right to enter and reside in India, which was the relevant issue.
16. The first applicant’s claim to fear discrimination in India by reason that she is Nepalese was also not a claim which was raised with the Tribunal. The first applicant did tell the Tribunal that Australia was known as a country which observed human rights, which did not happen in India, and she said in her oral submissions to the Court that this amounted to a claim to fear discrimination. However, I do not believe that a claim to fear discrimination on the grounds of ethnicity or nationality can be discerned in the first applicant’s generalised statement to the Tribunal that the human rights position is better in Australia than in India. In any event, the Tribunal stated at [55] of its decision:
    • I do not accept, therefore, that either the applicant or her husband has a well-founded fear of being persecuted in India for reasons of race, religion, nationality, membership of a particular social group or political opinion.
17. For these reasons, the matters raised by the first applicant in her oral submissions do not disclose a basis on which the Tribunal’s decision should be set aside.

Generally

18. Further, even a more general consideration of the Tribunal’s decision does not disclose an error which would require that such an order be made. The applicants were invited to a hearing and the first applicant took up that invitation and attended the hearing where she gave evidence and presented arguments. During the course of the hearing the Tribunal put to her, ostensibly pursuant to s.424AA of the Act, certain information which it advised her would be the reason or a part of the reason for affirming the delegate’s decision. It appears to have complied with the other requirements of s.424AA. It also put to her a number of issues arising in relation to the decision under review, in particular its concern that the applicants’ claims were exaggerated, and thereby satisfied the remaining requirements of s.425 of the Act.
19. The Tribunal’s decision also demonstrates that it understood the tests which it had to apply, and in particular the operation of s.36(3), (4) and (5) of the Act, in the context of the 1950 Treaty of Peace and Friendship between India and Nepal, and s.91R(1) and (2) in relation to the nature of harm recognised by the Act as falling within the scope of Australia’s protection obligations. Further, the findings of fact which the Tribunal made were open to it on the evidence.

Conclusion

20. For all these reasons, I have concluded that the Tribunal’s decision is not affected by jurisdictional error.
21. Consequently, the application will be dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Cameron FM

Date: 28 February 2011