SZACP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCATrans 472 (19 November 2004)

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SZACP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCATrans 472 (19 November 2004)

Last Updated: 9 December 2004

[2004] HCATrans 472

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S610 of 2003

B e t w e e n -

SZACP

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 NOVEMBER 2004, AT 11.38 AM

Copyright in the High Court of Australia

MR J.M. PATEL: If the Court pleases, I appear for the applicant. (instructed by the applicant)

MR R.J. BROMWICH: May it please the Court, I appear for the respondent. (instructed by Blake Dawson Waldron)

McHUGH J: Yes, Mr Patel.

MR PATEL: Your Honour, my client is here. We do not require an interpreter.

McHUGH J: Yes.

MR PATEL: I will come straight to the point, your Honour. The draft notice of appeal which appears at page 47 of the application book we have set out the - - -

McHUGH J: I thought you had an amended notice of appeal, have you, in this - - -

MR PATEL: Yes, it does not have a heading but it says “DRAFT NOTICE”. That is an amended appeal. The “DRAFT NOTICE OF APPEAL”, yes, your Honour.

McHUGH J: Yes. Go ahead.

MR PATEL: In order to enlarge those grounds and make or substantiate those submissions, if I may, with your leave, straight refer you to page 12 of the application book which contains the findings and reasons of the Tribunal. If I may refer you to the main relevant part which we seek to rely on to develop our submissions. It appears at page 12 at the bottom, the second paragraph. It says that “The applicant claims that she fled Nepal” – sorry, I apologise, which sets out the background that “she fled Nepal to avoid her violent husband”. She said that she had separated in 1991 and her husband had abused her and it recites her claims. At the end of that paragraph it says:

The applicant claims that a month later [the husband] resumed his abusive behaviour towards her and members of her family. The applicant claims that she did not and will not seek assistance from the authorities because she is fearful that her husband will carry out his threat to take her son away from her. The Tribunal accepts these claims.

On the same page it says:

The applicant claims that if she returns to Nepal she will suffer ongoing abuse and harassment from her husband. The applicant claims that the authorities cannot protect her all the time.

This is the most important finding of the Tribunal where it says:

The Tribunal accepts the applicant’s claims regarding her violent husband. It accepts that he harmed her before –

and, most importantly, it goes on to say –

and may do so again in the future.

The Tribunal accepted that she has suffered harm and it also accepted that from the assessment of the Tribunal that she is likely to suffer similar harm in the future if she returns. However, then the Tribunal goes on to qualify the statements by saying:

However, the Tribunal is not satisfied by the evidence that the applicant was targeted by her husband for a Convention reason or that he will harm her in the future for a Convention reason.

It would appear from the subsequent statements that the Tribunal distinguished what it said was the – at the bottom it says:

The Tribunal finds that the applicant’s difficulties with her husband were essentially a form of ‘private persecution’ unrelated to a Convention reason.

It appears that the Tribunal formed the view that because this was a private matter it was something between husband and wife, it therefore did not satisfy the Convention definition and the claim fell outside the definition. It goes on to say that it relies on the authority of Applicant A v MIEA:

The Tribunal is not satisfied that the applicant was harmed by her husband because she was a ‘woman in Hindu society’ –

and particularly we emphasise where it says –

and it is not satisfied that she is at risk of harm by her husband solely or primarily due to her gender.

So the Tribunal’s approach was very much similar to what happened in Khawar’s Case where similar reasoning was adopted by the Tribunal saying that what is happening to you is something between you and your husband, domestic violence, and it has nothing to do with the Convention.

Similar reasoning was apparently adopted or a similar view was taken in this matter by the Tribunal. That was the first fundamental error, we would submit, that was made by the Tribunal because it misunderstood the law as was explained in the authority of Khawar which is the main authority we rely on for our submissions. Then it goes on to nonetheless having said that that claim does not form part of the Convention definition, it does, nonetheless, deal with other matters. This comes to the protection and the Tribunal say that, okay, the second issue is that, “Anyway, there is sufficient protection available for you. For that reason your fear is not well founded”.

In order to arrive at that conclusion the Tribunal did not rely on any credibility issue or any other evidence except the country information. This country information which the Tribunal relied on was the same county information which the applicant was relying on to make up her case that she was suffering persecution which fell within the definition. It would appear that they were looking at this particular country information from a totally different perspective. The applicant was looking from a certain perspective and the Tribunal was looking at it from another perspective and therefore it reached the conclusion that, “There was protection available for you and there is no reason for you to have fear”.

Before I go on to explain that submission, I would like to refer your Honour to the matters that form the substance of this conclusion, the matters that the Tribunal have relied on, and it sets outs the country information at length and it is the same country information which both the parties were relying on and it has been set out by the Tribunal in its decision. If I may refer you to page 7 of the application book. At the second paragraph it sets out:

the United States Department of State annual human rights report which provides the following overview on the status of women in Nepal:

It starts with this proposition that:

The Constitution specifies that the Government shall not discriminate against citizens on grounds of religion, race, sex, caste, or ideology –

et cetera. So, apparently, there is evidence, one could say, that here there is a country which has a Constitution and which guarantees all these freedoms, including protection to the women not being discriminated by reason of their sex. That is the Constitution, but the reality, as it is, is quite different because what it means in practical terms, whether it has any significance or not would depend on the state of affairs as exist in the country. In the second paragraph, indeed, it is borne out where it says:

Violence against women is a serious problem that receives limited public attention. In a 1996 survey, 50 percent of respondents stated that they knew someone who was the victim of domestic violence. Respondents to another 1996 survey listed the perpetrators of violence in 77 percent of incidents as family members –

and most importantly concludes:

There is no law against domestic violence...

In the subsequent paragraphs it says:

There is a general unwillingness among citizens, and particularly among government authorities, to recognize violence against women as a problem . . . This unwillingness to recognize violence against women and girls as unacceptable in daily life is seen not just in the medical profession, but among the police and politicians as well...

The thrust of the whole report that was relied on, in our submission, clearly went against the conclusion which was going to be drawn by the Tribunal that the women are systematically being discriminated, married women, husbands can engage in violent act with impunity and police do little or anything about it.

At page 10, your Honour, that is again from the decision of the Tribunal in the second – that is again the Minnesota report, the same one which forms the main basis of the Tribunal’s understanding of the things as they were in Nepal at the time. It says:

The legal system fails to protect battered women in Nepal. The government does not prosecute domestic assault unless the violence rises to the level of attempted murder or murder. Although women may pursue prosecution without the aid of the state, social and economic obstacles preclude women from prosecuting in almost every case. The civil laws provide no recourse or escape for battered women and frequently facilitate or aggravate domestic violence...

Many sources reported that women are hesitant to report domestic violence to legal authorities. Though there are various reasons for this reluctance, including financial dependency and keeping the family together, it is clear that the criminal justice system’s inability to punish and prevent domestic violence effectively is a major deterrent to reporting it.

Again, it says about the divorce law at page 11:

The divorce laws in Nepal deter women from separating from their husbands, even in cases of severe domestic violence.

So, your Honour the material cited by the Tribunal from the report itself, which is not the whole report, but given the material which it thought was relevant, it all points in one direction, and that is what the applicant was submitting, that the women are being discriminated and when it comes to protection. However, the Tribunal, instead of relying on all those materials, sought to rely on a selecting paragraph which we would submit was taken out of context to support its conclusion that the women have protection which could be said to be sufficient for the purposes of the Convention.

If I may in that regard take you now to the decision of the Federal Magistrate which appears to be at page 29 on the top corner, paragraph 17, where it says:

These are only extracts from country information which support the Tribunal’s finding that:

“Reports considered by the Tribunal also indicate that government and non-government organisations in Kathmandu have increasingly been able to provide effective protection to women who seek protection from violent husbands. The Tribunal is satisfied that despite inadequacies in the protection system and pervasive social attitudes against intervention in such matters, the Tribunal is satisfied that the women living in Kathmandu have access to effective protection services such as the police and the courts, as well as non government organisations dedicated to assisting women abused by their husbands.

Now, your Honours, as I indicated earlier, this conclusion is reached from something taken out of context, not in context of the whole report, and even by the Tribunal’s own assessment of what is said in it, the important words if I may say, “have increasingly been able to provide effective protection”. It says “Reports considered by the Tribunal”. That is the same when we are talking about this American report. It says:

non-government organisation in Kathmandu have increasingly been able to provide effective protection to women who seek protection from violent husbands.

So that presupposes that there has to be a point, what sort of protection was available before so-called women’s cells were established. What significance is to be attached to the word “increasingly”? Does it mean that it has improved so much that it negates the findings of the report? The fact that somebody is trying to do something about what is happening to women – this is a private organisation. There are some lobbies who are trying to improve the conditions of women and it may be suggested that something like an organisation like Red Cross, which has come a long way, and some of the people there trying to establish some sort of refuge centre to give at least some relief to the battered women. This has been taking place, but to surmise from that that amounts to a total protection - - -

McHUGH J: But, Mr Patel, these are only arguments of fact. You have not demonstrated any error of law on the part of the Tribunal or, perhaps more relevantly, the Federal Court. What is the error of law? What is there about the case that would warrant the grant of special leave to appeal?

MR PATEL: Your Honour, first of all, as I submitted, that there was this misconception on the part of the Tribunal when it started to sort out or distinguish between what is called a private persecution and State protected persecution which flies against what has been said in Khawar’s Case. The second important issue, that even if one assumes that the Tribunal understood but did not express it properly, because it does talk about State protection, the thing is it is missing the point that it has to still decide what is – for the purposes of the definition what degree of protection would suffice and what can be said that there is effective protection.

It relies on the report and the Tribunal is in no better position than this Court or the Federal Court in looking at the material and say that whether or not it has looked at this report from the correct perspective of law. Our submission is that it approached the issue from incorrect and wrong perspective of law, because it seems to have concentrated on, if there is some protection, it means it is sufficient. It does not have to reach any particular threshold. In Khawar’s Case, this was the important point that was made, that protection in different countries would vary according to the resources. No doubt, it would not be the same what is available in Australia or maybe in the States or UK, but the mark would be whether it is discriminatory, whether the protection which the applicant complains of is the same as afforded to other citizens.

In our submission, the Tribunal has not dealt with that particular point in its reasoning, or nothing appears in the decision which will show that that was remotely conceded, and that demonstrates that it was looking at this issue from incorrect perspective, that there was some sort of protection means it was some abstract concept. In our submission, that was a mistake because what the Tribunal had to determine was whether or not the applicant had the same protection as other citizens of Nepal. Clearly there is nothing in the report anywhere which would remotely suggest that, yes, things are now improved and women are getting the same protection as men. So the level of protection to qualify for the definition - - -

McHUGH J: But even if your point was right – and I am not saying it is – it is just an error of fact.

MR PATEL: Your Honour, if that argument is taken to its minimum denominator, in every case it could be said that, of course, all issues would turn on the facts and finding of facts. In our submission - - -

McHUGH J: That is part of the problem applicants face in this jurisdiction. Parliament has decreed that questions of fact, right or wrongly decided, are for the Tribunal.

MR PATEL: I am not taking issue on question of whether or not the Tribunal has the sole power to determine facts. What we are submitting is that how those facts are determined, that is what the Court always looks at, whether you look at Chan’s Case or any number of cases that have come before the High Court. In each case, the facts were in issue and though it could be said that there.....but the Court distinguished and said, “Hold on, you arrived at these facts by applying the wrong proposition of law, looking from the wrong perspective of law, and that is why the finding is erroneous”.

It is not that the Tribunal could not – the issues – by analysing the reasoning process, the Court can determine whether or not the Tribunal who was labouring under a misapprehension of the law or looking from incorrect perspective. In our submission, it is clearly looking from the wrong perspective that - - -

McHUGH J: But looking from a wrong perspective does not equate with invoking an error of law.

MR PATEL: Wrong perspective of law. The law says that the definition requires these ingredients and it looks, for instance, to enlarge the submission about State protection. From what perspective the Tribunal was looking at that issue? Whether it was looking at - - -

McHUGH J: In any event, that was the second reason that the Tribunal gave. I think your time is up, Mr Patel.

MR PATEL: Thank you, your Honour.

McHUGH J: Thank you. The Court does not need to hear you, Mr Bromwich.

The applicant is a citizen of Nepal and a member of the Hindu religion, who was victimised by her husband. She has described herself as a Nepali Hindu. She arrived in Australia in 1999. She has made an application for a protection visa. She seeks the application of this Court’s decision in Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14; (2002) 210 CLR 1. She claims that she is and will be an object of persecution as a member of a particular social group, namely, women in Hindu society, or, perhaps more generally, Hindu women.

This argument was rejected by the Federal Magistrate and by the Federal Court and, on the findings that the Tribunal made, rightly so. The Tribunal specifically found that, although it accepted the applicant’s claims regarding her violent husband, that he had harmed her before and may do so again in the future, the Tribunal was not satisfied that the applicant was targeted by her husband for a Convention reason, or that he would harm her in the future for a Convention reason.

In addition, the applicant had not sought any state protection. Unlike the case of Khawar, the Tribunal affirmatively found in this case that state protection was available in Nepal to her.

No error on the part of the Federal Court has been established. Accordingly, the application must be dismissed with costs.

AT 12.01 PM THE MATTER WAS CONCLUDED