NAIV v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2004-04-20|Before: Gyles J, Jacobson J

REASONS FOR JUDGMENT Introduction 1 This is an appeal from a judgment of a Federal Magistrate dismissing an application for review of a decision of the Refugee Review Tribunal ("the RRT"). The Magistrate's judgment was delivered ex tempore on 25 August 2003. The decision of the RRT was handed down on 14 January 2003. The RRT affirmed a decision of a delegate of the Minister made on 2 April 1998 refusing to grant the appellant a protection visa. 2 I set out the background to the present appeal in my decision in the matter of NAIY v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA455. The appellant is the wife of the appellant in the matter of NAIY. 3 The Notice of Appeal raised two grounds. The first was whether the competency of the interpreter at the first hearing before the RRT tainted the decision. The second was whether the RRT erred in finding that the children of the marriage did not suffer persecution as children of a mixed caste marriage. For reasons set out below, both of these grounds must fail. 4 However, an additional ground of appeal was added on 5 February 2004 when the matter was listed before Gyles J. His Honour was concerned as to whether the decision of the High Court in Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 ("Khawar") afforded the wife a possible ground of appeal and he directed that the notice of appeal be amended accordingly to incorporate the new ground.

6 The second issue is whether, even if the RRT did correctly construe the phrase, it failed to address an "integer" of the claim which was, not merely that she was separated, but that she was a member of a social group consisting of separated or divorced women who had converted to Christianity. Her claim appears to have been, in part, that she suffered domestic violence at the hands of her husband because she refused to follow his religion, which was Buddhism, and that she would be unable to obtain effective State protection in Nepal as a separated or divorced woman who had converted from Hinduism to Christianity.

7 The first issue arises because the RRT made a finding that divorced or separated women could conceivably be a group for census taking or welfare needs. It is not clear from this whether the RRT considered the question of whether such women could constitute a social group. The RRT went on to find that the wife's fears were for reasons of her differences with her husband not because she is a divorced woman. Again, it is not clear whether the RRT had regard to the phrase in the Convention. I will deal with this issue in more detail below.

8 The second issue arises from the migration agent's letter dated 27 April 2000 but apparently received two days before the hearing. The migration agent, who was then acting for the husband and wife, notified the RRT that they had separated because of their religious differences, that the husband had returned to Buddhism, that if they returned to Nepal their separation would leave the wife in a precarious position and that she would receive no protection, as under Nepalese custom, she is "a traitor".

9 The RRT did not consider whether the relevant social group could be defined more narrowly than divorced or separated women. It did not consider whether there may be a social group consisting of women, or divorced or separated women, who had converted to Christianity. Neapalese law recognises freedom of religion but proselytising is an offence. Thus a question arises of whether the Nepalese authorities would tolerate domestic violence against a woman who may be guilty of such an offence. There was no suggestion that the wife had been proselytising but it is not clear whether there might be a suggestion that she has converted her children in contravention of Nepalese law. This issue arises notwithstanding a finding by the RRT that the wife could "lean on the protection of the State" in the event of violence at the hands of her husband.

10 Thus, the second issue on the appeal is whether the RRT failed to address and deal with the claim as put and thereby failed to complete the exercise of jurisdiction embarked upon; see Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 ("Htun") at [42] (Allsop J). 11 An issue also arises as to whether the dismissal of the husband's appeal disposes of the claims brought by the wife and children. It seems to me that this issue turns on whether the wife made an application in her own right for a protection visa or whether she applied as a member of a family unit. The Protection Visa Application 12 The protection visa application, which was lodged on 27 November 1996, named the husband, the wife and the children as applicants. Each of the husband and wife stated that he or she had separate claims to be a refugee. Each completed a form C which was lodged on 27 November 1996. In answer to the questions in form C which asked the applicants to state the reasons for claiming to be a refugee, each of the husband and wife said "statement to follow". 13 There were two statements. One was a statement of the appellant's husband dated 29 January 1997 to which I referred in the husband's appeal. The second statement was that of the appellant dated 1 June 1998. 14 The delegate proceeded on the basis that the application was made by the husband as a non-citizen to whom the Minister ought to be satisfied that Australia had protection obligations and that the claims by the wife and children were brought as members of the husband's family unit; see Migration Act 1958 (Cth) s 36(2) and the Migration Regulations, Regulation 866.221 and Regulation 866.222. 15 The application for review lodged in the RRT named the husband as the applicant and set out the names of the wife and children as persons included in the application. The notification to the RRT of the separation of the husband and wife and of the infliction of domestic violence 16 The husband and wife were represented by Bock Migration and Education Services Pty Ltd who provided written submissions on their behalf to the RRT. 17 By letter bearing the date 27 April 2000, the migration agent notified the RRT that the husband and wife had separated. The date on the letter may have been an error because it was not recorded as having been received by the RRT until 3 October 2000. The RRT member stated in the reasons for decision that notification was received on the day before the hearing on 5 October 2000. 18 The letter stated that the couple were having severe difficulties concerning their religious beliefs and that this had caused the need for the wife and her children "to separate and advance their own claims". 19 The letter informed the RRT that the husband was no longer of the Christian faith and that he had returned to Buddhism whereas the wife and children continued to adhere to Christianity. 20 The letter also stated that upon their return to Nepal, the husband would, according to Nepalese custom, take the children and if the wife did not comply with his wishes to revert to Buddhism he would divorce her and take another wife. 21 The letter continued as follows:- "Both have confirmed that this will leave [the appellant] in a precarious position, as this is alluded to already in the original claim. [The appellant's husband] now confirms that his wife will receive no protection, as under Nepalese custom, she is a traitor and a bad wife (therefore mother). To confuse the issue even more, [the appellant's husband] has already inflicted violence upon his wife specifically because of this issue, and he is still subject to a domestic violence order. This he confirms is normal and acceptable in Nepal, and sees no conflict with his way of life. This confirmation, however, substantiates some of [the appellant's] claims that she will indeed be the subject of more of this upon return to Nepal, and now [the appellant's husband] has confirmed that he will be the instigator of this violence amongst others." Country Information about freedom of religion and protection from domestic violence 22 Under Part 3 of the Constitution of the Kingdom of Nepal (1990) (the "Constitution") there are provisions for fundamental human rights. Clause 11 provides for the protection of Nepalese citizens against discrimination on the grounds of religion, race, sex, caste, tribe and ideological convictions. Clause 19 provides that every person shall have the right to profess and practise his [or her] own religion "as handed down to him from ancient times". However, the clause contains a proviso against proselytising. It states that:- "…no person shall be entitled to convert another person from one religion to another". 23 The United States State Department Reports for 1995 and 1996 point out that the Constitution described Nepal as a Hindu kingdom and although it does not establish Hinduism as the State religion the majority of citizens are Hindu. The Reports for both those years say that the Government has generally not interfered with the practice of other religions but conversion is prohibited and punishable with fines or imprisonment and police occasionally harass members of minority religions. The Reports continue as follows:- "Some groups are concerned that the ban on proselytizing limits the expression of non-Hindu religious belief"

24 The delegate stated that Christianity is the fastest growing religion in Nepal and that Christians do not face discrimination. Department of Foreign Affairs and Trade ("DFAT") Country Information dated 1994 indicated that the then current government showed a liberal attitude to all religious groups and allowed them to freely engage in their religious activities. 25 DFAT information dated April 1995 referred to the arrest in the previous year of Christian Missionaries but said that they were arrested for disrupting the traditional religion of the Hindu community. DFAT went on to say "(w)e do not believe that Christians suffer discrimination in Nepal". 26 DFAT information dated August 1996 stated that persons proselytising could be convicted in Nepal of that offence but, at that time, no one was then in jail for the offence of proselytising. 27 There was evidence before the RRT about the issue of domestic violence. The RRT quoted the following passage from the US State Department's Country Reports on Human Rights Practices 2001:- "The police department has a 'women's cell' in five cities, including Kathmandu, and in 16 districts. These cells include female officers who receive special training in handling victims of domestic violence. The police also have sent out directives instructing all officers to treat domestic violence as a criminal offense (sic) that should be prosecuted. However, according to a police official, this type of directive is difficult to enforce because of entrenched discriminatory attitudes. Even though the police may make an arrest, further prosecution often is not pursued by the victim or by the Government. At least six NGO's in Kathmandu work on the problem of violence against women and on women's issues in general. SAATHI's assistance program includes a women's shelter and a suicide intervention center. The shelter provides housing, medical attention, counselling, and legal advocacy for the victims of violence." 28 This report also stated that there was a general unwillingness among government authorities, including the police, to recognise violence against women as a problem. 29 The report referred to the fact that the Constitution provides protection for women (see eg Article 11 to which I referred above). However, the Report stated that the Government often has not taken significant action to implement the provisions of the Constitution. 30 The report states that systematic discrimination exists, particularly in some rural areas, especially in relation to issues such as voting rights and that discriminatory laws exist which, for example, grant women the right to divorce but on narrower grounds than those applicable to men. 31 The US State Department Country Reports on Human Rights Practices 2000 stated that there was no law against domestic violence and that there was a general unwillingness, particularly among government figures, to recognise violence against women as a problem. 32 The US State Department, Country Reports on Human Rights Practices 1995 stated that women's rights groups reported that wife beating was common. The report stated that the government made no special effort to combat violence against women in the home.

The RRT's Decision 33 The RRT accepted, as in the case of the husband, that being a partner in an intercaste marriage could constitute membership of a particular social group. However the RRT found that the claim of "low level discrimination" to which the wife referred did not amount to persecution. 34 The RRT found that in regard to her "marital problem", this made her vulnerable. However, the RRT went on to find that "this does not advance her case in respect of the Convention." 35 The RRT made a finding that the State of Nepal recognises divorce and that it provides a police unit to deal with domestic violence. 36 The RRT then said:- "Although divorced or separated women in Nepal could conceivable (sic) constitute a group for census taking or for welfare needs I find that the harm she claims to fear is for reasons peculiar to her circumstances, her particular disagreement and irreconcilable differences with her husband and not because she is a divorced woman in Nepal. While I accept that the situation is more favourable for a man than a woman in this situation I do not find that the situation is such that she is so disadvantaged or discriminated against that it would amount to persecution. I find that she could lean on the services of the women's groups in Kathmandu for support and also on the Christian community if she remains a Christian in Nepal. She could also lean on the protection of the state in the case of violence at the hands of her husband." 37 As to the position of the children, the RRT found that in Nepal they were sometimes referred to in a derogatory manner as children of a mixed caste marriage. However, the RRT found that the harm they suffered did not amount to persecution. The decision of the Federal Magistrate 38 The Magistrate adopted the written submissions of counsel for the Minister which addressed the grounds set out in the application and supporting affidavit. The effect of this was that the learned Magistrate found at [4] - [5] that no jurisdictional error was established. He came to this conclusion because the RRT had considered the prevailing situation in Nepal, found that the discrimination suffered was not serious enough to constitute persecution, provided the appellant with an opportunity to comment on adverse information relied on by the RRT and decided that the appellant would have religious freedom as well as protection by the State and support from the Christian community in Nepal. 39 The Magistrate then dealt at [6] with the oral submissions made by the appellant as follows:- "In her oral submissions to me, the applicant mother explained that her main concern is with the risk of persecution that she fears because of her religion. She explained to me that the situation has been made worse because her marriage to her husband has broken down. She explained to me that in these circumstances her situation and the situation of her children in Nepal would be even worse than it would otherwise be. This is because her husband would not be available as a protector. In fact the applicant mother claims that her husband has made threats against her life. She has also claimed that effective protection from the police in Nepal would not be available." 40 The Magistrate recorded at [7] the appellant's submission that she should have been permitted "to make a separate protection visa application". He referred at [8] to the RRT's separate findings in relation to the wife's claims. He said that the RRT had found that the wife could face hardship in Nepal because of her separation but that this did not amount to persecution for a Convention ground. The learned Magistrate observed at [8]: "The problems that the applicant mother and her children are likely to face in Nepal arose because of the breakdown of the marriage, not for a Convention reason." 41 The Federal Magistrate then said at [9] that it was not possible for the RRT to permit the appellant to make a fresh application for a protection visa because the family had made a joint visa application which had already been decided by the delegate and which the RRT had to deal with. The two grounds stated in the Notice of Appeal 42 The first ground, namely the alleged inadequacy of the translation by the interpreter, fails because the point was not taken before the Federal Magistrate. 43 In any event, no evidence was put before me to make good the proposition that the quality of the interpretation was so deficient as to deprive the appellant of a fair hearing or to deprive her of the opportunity to present her arguments in accordance with s 425 of the Act. 44 Moreover, there are indications in the RRT's reasons that the interpreter properly translated the evidence. The RRT observed that the wife had asked for a female interpreter and this request was met. The RRT then said that the husband asked to be reheard using the same interpreter as he believed her interpreter was more efficient than his. 45 Elsewhere the RRT member observed that he had often worked with the female interpreter, that he had confidence in her skills and had no doubt that she had accurately translated what was said. 46 The second ground, namely the failure to find that the children were persecuted notwithstanding that they were discriminated against as mixed caste children, fails because this was a question of fact for the RRT. The finding was open to the RRT. It has been said on many occasions that judicial review does not extend to a review of the merits of the RRT's decision. The Khawar ground 47 As I said in the introduction, it is not clear whether the RRT considered the question of whether women or divorced or separated women could constitute a particular social group. The reference in the passage which I set out at [7] to such women as "a group for census taking or for welfare needs" does not address the Convention term of a particular group. It may be that to fail to do so is to invite error. However, on a fair and not over-zealous reading of the RRT's reasons, it seems to me that the effect of the passage is that divorced or separated women may constitute a particular social group but that, the wife, as a member of such group could look to the State for protection in the event of domestic violence and that her fears had their foundation in her religious differences with her husband, not for a Convention reason. 48 The position in Khawar was quite different. The wife gave evidence of four occasions on which she had approached the police in Pakistan to complain of domestic violence only to be treated with indifference and refusal of help; see at [10]. Also, there was country information which appeared to be analogous to that which was before the House of Lords in R v Immigration Appeal Tribunal; Ex parte Shah [1999] 2 AC 629. Gleeson CJ cited at [11] a passage from the judgment of Lord Steyn who said that the distinctive feature of the case was that in Pakistan women were unprotected by the State and that discrimination was partly tolerated by the State and partly sanctioned by the State. 49 In the present case there was a specific finding by the RRT that the wife could "lean on" the State of Nepal for protection. This amounted to a finding that the State did not tolerate or sanction domestic violence against women or against divorced or separated women. 50 However, it seems to me that what the RRT did not address was the question of whether the State would tolerate or sanction domestic violence against divorced or separated women who had converted to Christianity. This was a claim which the wife made in the letter from the migration agent to the RRT. 51 In my opinion it is quite possible that the relevant social group may be defined in those terms, (i.e. as women or divorced women who had converted to Christianity). The question must be whether there are social attributes linking such women so that they may be perceived as a particular social group for Convention purposes; see Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225. This does not appear to be a case where the group is sought to be defined by the common characteristic of a fear of persecution. The question is one which must be determined by the RRT having regard to the appropriate country information. 52 There were different views expressed in Khawar as to how the particular social group was to be defined. Gleeson CJ was of the view at [32] that women in Pakistan are a particular social group. McHugh and Gummow JJ said at [81] that it was open to the Tribunal to determine that there was a social group comprising at its narrowest married women living in a household which did not include a male blood relative to whom she might look for protection against violence by members of the household. Kirby J said at [129] that material suggested that there might be a social group defined in terms similar to those stated by McHugh and Gummow JJ. But once the claim is made, as here, in a way which suggests the real possibility that the group is more narrowly defined, it must be a question for the RRT to consider how the group is to be defined by reference to the country information which is put before it. 53 I do not consider that the finding made by the RRT that the harm which she suffered was by reason of her disagreement and differences with her husband addressed the wife's claim. The RRT proceeded on the assumption, at its highest, that the relevant social group was divorced or separated women. It did not consider whether the harm she claimed to have suffered was for reason of membership of a particular social group defined as divorced or separated women who had converted to Christianity. 54 Nor do I consider that the finding, that she could look to the State for protection in the event of domestic violence, dealt with her claim because this too was based upon the assumption that the relevant social group was divorced or separated women. It did not deal with the claim that divorced or separated women who were religious converts may not be able to look to the State for protection, that is that the State may tolerate such persecution. What will need to be considered is the particular circumstances of the wife and the position of religious converts. It may be that, as the country information suggests, the position is different for voluntary converts than for those guilty of proselytising. 55 As Allsop J (with whom Spender J agreed) said in Htun at [42], this is not merely an aspect of the evidence not being touched. His Honour's observations in that case that the RRT failed to address and deal with how the claim was put to it, at least in part, are equally applicable here. The RRT, as his Honour said, failed to address an "integer" of the appellant's claim. 56 Of course, the view that I have reached merely has the result that the matter would be remitted to the RRT. Further evidence will need to be obtained and factual findings made. The RRT has far reaching powers to obtain such evidence under ss 427 and 428 of the Act; see Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at [18] (Wilcox and Madgwick JJ). 57 Moreover, as Gleeson CJ observed in Khawar at [26] it will not be sufficient for the appellant to show maladministration or ineptitude by the local police. What she will have to show is State tolerance or condonation of domestic violence against women who are religious converts. As his Honour said at [26], the RRT will need to be well-informed about the relevant facts and circumstances before reaching a conclusion that what occurs in another country amounts to persecution by reason of the attitude of the authorities to the behaviour of private individuals. 58 I should add that the Khawar point was not argued before the Federal Magistrate. However, no objection was taken to the amendment to the grounds of appeal to cover this issue. The effect of the dismissal of the husband's appeal

59 In NAEA of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 341 ("NAEA") Gyles J found at [13], that the death of an applicant husband had the effect that the wife was not capable of fulfilling the statutory criteria for the grant of a protection visa. The decision of Kenny J in V120/00A v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 116 FCR 576 at [58] - [60] ("V120") is to the same effect. However, both of those cases turned on the fact that the applicant wife applied for a visa solely as a member of a family unit.

60 The criteria for the issue of a protection visa are to be found in s 36 (2) of the Act and clause 866.2 of the Migration Regulations 1994 ("the Regulations").

A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or (b) a non-citizen in Australia who is the spouse or a dependant of a non-citizen who: (i) is mentioned in paragraph (a); and (ii) holds a protection visa."

62 Sub-clause 866.211 provides that the criteria to be satisfied at the time of the application are as follows:-

866.211 The applicant claims to be a person to whom Australia has protection obligations under the Refugees Convention and:

(a) makes specific claims under the Refugees Convention; or

(b) claims to be a member of the same family unit as a person (the claimant ) …" The criteria to be satisfied at the time of the decision include the following:-

"866.221 The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.

866.222 In the case of an applicant referred to in paragraph 866.211 (b): (a) the Minister is satisfied that the applicant is a member of the same family unit as a claimant referred to in that paragraph; and (b) that claimant has been granted a Protection (Class XA) visa." 63 In the present case, the applicant stated in her Form B that she had her own claims to refugee status. She made an application in her own right by completing Form C. It follows that, unlike the applicant in each of NAEA and V120, the appellant does not have to satisfy the criteria set forth in sub-clauses 866.211(b) and 866.222 of the Regulations. Thus, the refusal of the husband's claim for a protection visa, does not prevent her from being able to satisfy the criteria for her application. 64 However, two difficulties arise. First, the delegate proceeded on the basis that the husband applied in his own right and that the wife and children applied as members of his family unit. The delegate found that the wife and children did not meet the criteria contained in sub-clause 866.222. That is to say, the delegate found that the wife and children failed because the husband had not been granted a protection visa. 65 The second is that the application for review by the RRT was filed in the name of the husband. The wife and children were named as persons included in the application for review. 66 What then was the RRT reviewable decision which the RRT was bound to review under s 414? And what was the matter which was before the Federal Magistrate for review under s 39B of the Judiciary Act 1903 (Cth)? 67 The refusal to grant the wife a protection visa was an RRT reviewable decision; see s 411(1)(c). It is true that the delegate refused to grant the wife a visa on the ground that she applied as a member of a family unit and her husband had been refused a visa. However, if the wife had applied in her own right for review of the delegate's decision the RRT would have been authorised to exercise the power of the delegate to determine whether the wife satisfied the criteria for the grant of a visa to a person to whom Australia has protection obligations under the Convention. This is because she said in the Form B that she had her own claims to be a refugee and she made a claim in her own right in Form C. 68 It seems to me that what the RRT did when it received notification of the separation of the parties was to treat the application for review as if it had been amended so as to be an application by the wife to review the decision to refuse to grant the wife a protection visa on claims made by her in her own right. The RRT had power to do so under s 420 of the Act. 69 If this were not the case, it would be difficult to understand why the RRT assured the wife that it would make a decision in regard to her claims and why it then made separate findings in relation to them. There were a number of indications in the written material that the wife's claims were linked to her husband's. In particular they both arise out of the claim of caste discrimination and mixed caste marriage. And the claim of marriage breakdown due to religious differences together with the claim of failure of State protection was made in the letter written by the migration agent for both the parties. However, I do not see that these matters negate the plain fact that the wife had made her own claim for protection. Indeed, the migration agent recognised in the letter of 27 April 2000 that a conflict of interest had arisen. 70 Thus, the matter before the Magistrate was the dismissal of the application for review of the wife's claim to be a person to whom Australia owed protection obligations under the Convention. It is true that the Magistrate found that it was not possible for the RRT to agree to her request to make a fresh application for a protection visa. But she had made an application in her own right and in my view the RRT fell into jurisdictional error in reviewing the decision. The position of the children 71 The wife was appointed as their litigation guardian; see the Federal Magistrate's judgment at [3]. No error was made in the RRT's separate reasons in relation to the children. However, their claims turn on whether their mother is granted a protection visa. It is not to the point that their father's application was unsuccessful because they will be capable of satisfying the criteria stated in s 36(2)(b) of the Act if their mother obtains a protection visa. Orders 72 The orders I will make are that the appeal be allowed with costs. The matter is to be remitted to the RRT for determination according to law. I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Migration Act 1958(Cth)ss 36, 411, 420, 425, 427, s 36(2)

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