Shetty v Minister for Immigration Multicultural Affairs

Federal Court of Australia|1999-11-18|Before: Branson J

Introduction 1 This is an application made under s 476 of the Migration Act 1958 (Cth) ("the Act") for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") which affirmed a decision of a delegate of the respondent not to grant to the applicant a protection visa. 2 Section 36 of the Act provides as follows: "(1) There is a class of visas to be known as protection visas. (2) A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." 3 Australia will have protection obligations to the applicant under the Refugees Convention as amended by the Refugees Protocol (together hereafter referred to as the "Refugees Convention") if the applicant: "owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of [her] nationality and is unable or, owing to such fear, is unwilling to avail [herself] of the protection of that country …." (Article 1A(2) of the Refugees Convention)

FACTS 4 The applicant is a citizen of India. She arrived in Australia on 20 December 1992. On 8 August 1995 she lodged an application with the Department of Immigration and Multicultural Affairs ("the Department") seeking a protection visa. On 25 August 1998 a delegate of the respondent refused to grant the applicant a protection visa. On 18 September 1998 the applicant sought review of that decision. 5 The applicant is thirty-five years old. She lived in the city now known as Mumbai before coming to Australia. She is a Christian, initially of the Roman Catholic denomination but now a practicing Jehovah's Witness. It appears that some years ago she converted to Hinduism to marry a Hindu. The marriage was short lived, ending in divorce, and it appears that she may never have truly adhered to the Hindu faith. The applicant was awarded an Arts degree by the University of Bombay and thereafter gained employment in India as a hotel receptionist and in the banking industry. 6 The applicant claims to have entered into a relationship in Australia with a married man. She further claims to have had an abortion in July 1995 after learning that her family in India would not agree to support her were she to return to India. 7 The applicant's case before the Tribunal was that she feared persecution in India because she is divorced. She claimed that it might be difficult for her to remarry because she is not a virgin and that if she did remarry, "enormous dishonour to the family" would result should her new husband learn of her abortion, and divorce might follow. She claimed that men in India harass women who are divorced or separated and other women can be suspicious of their intentions towards men. 8 Further, the applicant claims that her family would not support her if she returns to India but that she would be ostracised by, and excluded from, her family. She would have to live alone, without support, and would not be able to get a job to support herself because of her fear that she would be harassed by men in the workplace. Evidence was given to the Tribunal that the applicant would be talked about because she is divorced and has had an abortion and people would look down on her. 9 The Tribunal noted additional information available to it that indicated that "while there are many laws in place to protect the rights of women and to advance their status in Indian society, the government often is unable to enforce these laws because of deeply rooted religious and cultural traditions." The Tribunal also noted reports from the Australian Embassy in New Delhi, that "single women are increasingly moving around the country and settling away from their family following employment or other interests" and that while Indian women experience substantial discrimination, the status of women in India was undergoing a "quiet sea change" with the presence of women in the workforce becoming increasingly acceptable among the growing middle class without a significant male backlash. The Tribunal referred to a 1994 report which showed that divorce is not uncommon in India with more and more people from the middle class seeking to divorce. The Tribunal could find nothing to suggest that Jehovah's Witnesses are persecuted in India.

Reasons of Tribunal 10 The Tribunal concluded that the treatment that the applicant fears from her family did not amount to persecution. It said: "… she may experience their disapproval and ostracism and may have been removed from their wills and while this may be extremely upsetting and hurtful I do not consider that it is a harm of a type and severity which amounts to persecution." 11 The Tribunal reached a similar conclusion in respect of her fear that she will be ostracised by members of her family's religious community who know of her history. The Tribunal noted that, in any event, it was unlikely having regard to the applicant's claims, that she would have much to do with members of her family's religious group. 12 As to the applicant's concerns about finding a job and re-establishing her life, the Tribunal accepted that sexual harassment of women in the workplace occurs in India, but it did not accept that every workplace would carry a similar risk, that every Indian male in the workplace would engage in sexual harassment or that the applicant was incapable of discouraging the practice. In this regard the Tribunal concluded: "I do not accept that her fear of sexual harassment because she is a divorced woman is a reason why she would not be able to secure employment but do accept that it may lead to her being selective about which positions she seeks." 13 With respect to fears expressed by the applicant that she would be perceived as of "easy virtue" because she is divorced and has had an abortion, the Tribunal observed: "… the applicant lived in Bombay, an enormous and cosmopolitan city, and even allowing for the deep rooted religious traditions which have limited advances in the status of women, I do not accept that she would be unable to establish a life there. People may find out that she is divorced, although this would be more difficult if she did not tell them, and they may look down on her but I do not consider that this is a harm of a seriousness so as to constitute persecution. Nor do I accept that whatever difficulty she may have in forming a new relationship because she has already been married and has had an abortion constitutes persecution."

Grounds of the Application for Review 14 The grounds of the application, as amended at the hearing, are as follows: "(i) The decision involved an error of law, being an error involving an incorrect interpretation of the applicable law, in that the Tribunal incorrectly interpreted the words 'membership of a particular social group' in the Convention definition of 'refugee'. (ii) The decision involved an error of law, being an error involving an incorrect application of the law to the facts as found by the Tribunal, in that the Tribunal failed to fully address the claims made by the applicant as to the persecution which she feared if she returned to India, and in particular to decide whether there was a real chance that the applicant would face sexual harassment amounting to persecution in any employment which she was able to obtain. (iii) Procedures that were required by the Act to be observed in connection with the with the making of the decision were not observed, in that the Tribunal failed to provide reasons complying with s 430(1) of the Migration Act of 1958 (Cth) which adequately explained: (a) Why there was not a real chance that the applicant would face sexual harassment amounting to persecution in any employment which she was to obtain; and (b) On what evidence and by what reasoning (on the assumption that what the applicant feared was the persecution by reason of her status as an divorced or deserted woman) she would be able to escape a real chance of its infliction when living in another part of Bombay or in another city."

Consideration 15 The applicant contended that the Tribunal was obliged to form a single judgment as to whether the applicant had "… a well-founded fear of being persecuted for reason of … membership of a particular social group" and was not entitled to isolate the question of whether the harm that she feared was sufficiently serious in nature to amount to "persecution" within the meaning of the Refugees Convention. Reliance was placed on the observations of McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 256 that: "The phrase 'a well-founded fear of being persecuted for reasons of … membership of a particular social group' is a compound conception. It is therefore a mistake to isolate the elements of the definition, interpret them, and then ask whether the facts of the instant case are covered by the sum of those individual interpretations. Indeed, to ignore the totality of the words that define a refugee for the purposes of the Convention and the Act would be an error of law by virtue of a failure to construe the definition as a whole." 16 Applicant A was a very different case from the present. It concerned a couple who feared sterilisation. It was understandably conceded by the respondent in that case that sterilisation could be the basis of a well-founded fear of persecution. The statement of McHugh J at 258 that: "Whether or not conduct constitutes persecution in the Convention sense does not depend on the nature of the conduct. It depends on whether it discriminates against a person because of race, religion, nationality, political opinion or membership of a social group …." is to be understood in this context. 17 McHugh J had in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, particularly at 430, recognised that whether or not adverse or harmful conduct could amount to persecution involved consideration of the seriousness of the conduct. Moreover, his Honour in Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 at 575 joined with Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ in referring with apparent approval to the statement of Mason CJ in Chan that persecution required "some serious punishment or penalty or some significant detriment or disadvantage". In Kanagasabai v Minister for Immigration and Multicultural Affairs [1999]FCA 205, after reviewing authorities touching on the meaning of "persecution" in the context of the Refugees Convention, I expressed the view in para 27 (to which I adhere) that the joint judgment in Guo was intended to make explicit what had in earlier authorities been implicit, namely that the type of harm which can constitute persecution cannot be trivial or insignificant harm but rather must be harm of significance. 18 The question of when harm or discrimination will amount to persecution within the meaning of the Refugees Convention involves issues of fact and degree (Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260 at 268). The Tribunal in the present case showed by its reasons for decision a proper appreciation of the concept of persecution within the meaning of the Refugees Convention. In particular, it may be noted that the Tribunal observed: "Harm or threat of harm as part of a selective harassment of a person, whether individually or as a member of a group which is subject to such harassment, amounts to persecution if done for a Convention reason." 19 The issue of whether the harm which the applicant fears amounts to persecution was an issue for the Tribunal to determine. In my view, no error of law involving an incorrect interpretation of the applicable law having been demonstrated, the conclusion of the Tribunal that the applicant's fears do not amount to a fear of persecution within the meaning of Article 1A(2) of the Refugees Convention (see s 36(2) of the Act) is not open to review in this Court. 20 As the Tribunal's conclusion that the applicant does not have a well founded fear of being persecuted should she return to India is fatal to her claim to be entitled to a protection visa, it is unnecessary to give consideration to the other grounds of review relied on by the applicant. 21 However, I add that there is, in my view, no substance to ground (ii) of the application which asserts an error of law involving an incorrect application of the law to the facts as found by the Tribunal. As I understand the applicant's case, she contends that the Tribunal did not give proper consideration to the applicant's fears in a "global" sense, and did not give proper consideration to "the likelihood that the applicant would experience serious sexual harassment in the course of any work she could secure." The reasons for decision of the Tribunal when read as a whole do not, in my view, provide support for this contention.

CONCLUSION 22 The decision of the Tribunal is affirmed. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Dated: 18 November 1999 Counsel for the Applicant: Mr M.B. Smith

Solicitor for the Respondent: Australian Government Solicitor

Migration Act 1958(Cth)ss 36, 476

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