SZNNM v Minister for Immigration
[2009] FMCA 844
•3 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNNM v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 844 |
| MIGRATION – Visa – Protection visa – review of Refugee Review Tribunal decision – jurisdiction – whether the court has no jurisdiction – where application not filed within 35 days of the Tribunal decision – delay – whether explanation for delay – citizen of Indonesia who was a child at the time of the Tribunal decision – where applicant’s mother claimed a fear of persecution arising out of domestic violence – whether Convention nexus – whether a member of a particular social group – whether State protection available – whether Tribunal applied the wrong test – whether relief should be refused in the Court’s discretion because of lengthy and unexplained delay. PRACTICE & PROCEDURE – Extension of time – application for extension of time – delay – the interests of the administration of justice – partial explanation for delay – applicant was a child for the greater part of the time – application for extension of time granted. |
| Migration Act 1958 (Cth), ss.417, 476, 477 Migration Legislation Amendment Act (No 1) 2009 Schedule 2 item 7(2) |
| SZAIX v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 3 Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1; [2002] HCA 14 STCB v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 556; 81 ALJR 485; [2006] HCA 61 Minister for Immigration and Citizenship v SZIQB [2008] FCAFC 20 SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487; [2008] FCAFC 91 |
| Applicant: | SZNNM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1000 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 29 July 2009 |
| Date of Last Submission: | 29 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 3 September 2009 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Turner |
| Solicitors for the Applicant: | Turner Coulson Immigration Lawyers |
| Counsel for the Respondents: | Mr Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The time for making an application to the Court for a remedy to be granted in exercise of the Court’s original jurisdiction under section 476 of the Migration Act 1958 in relation to the decision of the Refugee Review Tribunal dated 3 April 1998 is extended to 28 April 2009.
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,200.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1000 of 2009
| SZNNM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an unusual application. The Applicant applies for review of a decision of the Refugee Review Tribunal dated 3rd April 1998, affirming the decision not to grant her, her mother and her brother protection visas. The application is unusual because the Applicant claims not to have been aware of the Tribunal decision until comparatively recently.
The Applicant seeks:
a)A declaration that the Tribunal decision is null and void and of no effect;
b)A writ of Certiorari quashing the decision; and
c)A writ of Mandamus, requiring the Tribunal to rehear and re-determine the application according to law.
The First Respondent, the Minister for Immigration and Citizenship, has filed a Response opposing the application for the reasons that:
a)The Court has no jurisdiction to review the Refugee Review Tribunal decision made on 3rd April 1998. Subsection 477(1) of the Migration Act 1958 applies and the application in this Court was not filed within 35 days of the Tribunal decision.
b)The application for judicial review does not establish any jurisdictional error in the decision of the Refugee Review Tribunal dated 3rd April 1998.
c)The application should be dismissed in the exercise of the Court’s discretion because of the Applicant’s unexplained and unwarrantable delay in bringing the application.
Background
The Applicant is a young woman from Indonesia who was born on 15th September 1989. She arrived in Australia with her mother and her brother on 23rd September 1996, shortly after her seventh birthday.
The Applicant’s mother applied for a Protection visa (866) on 25th November 1996. She included her son and daughter in the application. The mother submitted her own claims for refugee status and the two children were Part D applicants, applying as members of their mother’s family unit.
In her application, the mother claimed that she had to leave Indonesia to get away from her abusive husband, who she claimed was a gambler and a drunkard. The mother claimed that her husband would constantly lose money gambling and sold all their furniture and other possessions to raise money. Eventually, she claimed, he threatened to sell the children:
So many things he sell it from home, TV, stereo, furniture until we got nothing and then he told me he got a plan to sell my son with my daughter to the friends because he said he got a friend very rich and I said to him no way and you know he punch me he hit me.[1]
[1] Court Book at 17
The mother claimed that the police could not protect them.[2]
[2] Court Book 20
A delegate of the Minister for Immigration and Multicultural Affairs refused the applications for protection visas on 31st January 1997. The delegate found that the claims by the mother were not Convention related:
The Applicant fears reprisals for reasons relating to the personal relationship that has developed between herself and her husband and not for a Convention reason. Therefore, while the Applicant may fear for her safety should she return to Indonesia, the harm that she fears is not Convention related. The applicant’s claims are outside the scope of the Convention as any risk she faces is not connected to her civil or political status as enumerated in the Convention grounds of race, religion, nationality, membership of a particular social group or political opinion.[3]
[3] Court Book 37
Application to the Refugee Review Tribunal
On 6th March 1997 the mother applied to the Refugee Review Tribunal for review of the delegate’s decision. She included the two children as applicants.[4]
[4] Court Book 39-41
The Tribunal invited the mother to attend a hearing originally scheduled to take place at 1:00pm on Tuesday 24th March 1998 but later postponed to Friday 3rd April 1998 at 2:00pm.
The mother attended the hearing and gave evidence with the assistance of an interpreter.
The Refugee Review Tribunal Decision
The Tribunal handed down its decision on 9th April 1998, affirming the decision not to grant a protection visa.[5]
[5] Court Book 54
The Tribunal recorded the mother’s evidence about her claim for protection in the Decision Record under the heading “Claims and Evidence” :
The Applicant stated that she has serious problems with her husband. He was a gambler and a drunkard and was violent towards her and the children. He sold all their possessions and she was very frightened that he would seriously harm her and the children. She stated that the police could not protect her every day. They had told her to contact them if anything happened but by then it would be too late…
…The Applicant stated that there was no protection for wives in Indonesia. The police had talked with her husband and he had promised to improve his behaviour but he had not done so. She stated that as well as being an alcoholic and a gambler, he also was involved in taking and selling drugs. She had to pay a fee to the police each time she went to make a complaint.[6]
[6] Court Book 57-58
In its Findings and Reasons, the Tribunal was satisfied that the Applicant’s mother was a national of Indonesia. It then considered her claim to have been persecuted by her husband, which it appeared to accept, but raised a concern about whether there was a Convention nexus:
The difficulty is whether the harm done to her then was inflicted for a Convention reason, whether there was any protection available to her in Indonesia, either from the authorities or from re-location and whether she remains at risk of this same harm in the future.[7]
[7] Court Book 59
The Tribunal took the view that the only ground on which the Applicant mother’s claims could conceivably be connected with the Convention was that of particular social group. The Tribunal considered what such a group might be:
a)Indonesian women;[8]
b)Indonesian women in de facto relationships;[9] or
c)Indonesian women who have been in violent de facto relationships.
[8] Court Book 59
[9] Ibid
The Tribunal rejected all of those social groups and went on to find:
Without a reason to anchor it in the Refugees Convention, what the Applicant has suffered and fears she could suffer again comes under the category of crime…
If the Applicant fled from her de facto husband for the reasons she has claimed, the harm she suffered has not been for reasons of her nationality, race, religion, political opinion, or membership of a particular social group. As such it lies outside the scope of the Convention and therefore beyond the scope of this Tribunal to offer any protection under that Convention.[10]
[10] Court Book 60
The Tribunal was not satisfied that the Applicant mother was a person to whom Australia has protection obligations under the Refugees Convention and affirmed the decision not to grant a protection visa.
There is no record that the mother of the Applicant ever sought review of the Tribunal decision.
The Current Application
The Applicant applied to this Court on 28th April 2009. She filed an amended application on 12th June 2009, applying for an extension of time to commence proceedings as well as a declaration and writs of Certiorari and Mandamus. The Applicant filed in Court a further amended application relying on two grounds of review:
a)Ground 1 – the Tribunal failed to carry out its statutory duty; and
b)Ground 2 – the Tribunal applied the wrong test
In her affidavit filed in Court on the day of the hearing, the Applicant deposed that she did not did not know about her status in Australia until April 2008. She had applied to undertake a course with a TAFE college but was told that she was not eligible because she did not hold a visa. She spoke to her mother on or about 17th April 2008 who gave her a copy of the decision of the Refugee Review Tribunal and told her what had happened.
The Applicant deposed that she sought advice from a number of lawyers and migration agents, who gave her conflicting advice. Eventually, she consulted her current solicitor, Mr Ray Turner on 23rd April 2009. She instructed him to commence proceedings for review of the Tribunal decision in this Court. Her application and a supporting affidavit were filed on 29th April 2009, six days later.
In cross-examination by Mr Reilly of counsel, who appeared for the Minister, the Applicant said that she had never left Australia since she arrived with her mother and brother. She is now living with her uncle, having left her mother’s residence in about June 2008.
The Applicant said that she knew she was not an Australian citizen but thought she was a permanent resident. When she asked her mother about her situation her mother had said “You’ll never understand; it’s too complicated.”
The Applicant said that she found out about her immigration status when she enrolled at TAFE. She asked her mother who referred her to her brother and he told her about her situation.
The Applicant said that she had never had a driver’s licence. She once had a Medicare card but it expired and was not renewed. She said she did not even know what a visa was until 2008. She had consulted some solicitors, one of whom she named, but they all said that there was nothing to do but go back to Indonesia.
The Applicant said that she had lost contact with her mother. She had “a lot of issues” with her in the previous year. She does not even have a current telephone number for her mother.
The Applicant’s Submissions
The Applicant’s solicitor, Mr Turner, submitted that the Tribunal had committed jurisdictional error by:
a)Failing to carry out its statutory duty (ground 1); and
b)Applying the wrong test (ground 2).
It was submitted that the Tribunal failed to carry out its statutory duty because it looked at the legal and official position of women in Indonesia without considering the actual position facing the Applicant’s mother.
It is a jurisdictional error only to look at the official position in Indonesia rather than the actual position faced by the review applicant (SZAIX v Minister for Immigration and Multicultural and Indigenous Affairs[11] per Madgwick J at [45]-[46] & [48]).
[11] [2006] FCA 3
Having found that the harm suffered by the review applicant amounted to persecution, it was not sufficient for the Tribunal to dismiss the application because the harm was not committed for a Convention reason. The Tribunal was obliged to consider whether the State was unable or unwilling to provide protection for a Convention reason (see Minister for Immigration and Multicultural Affairs v Khawar[12] at [21], [32], [35], [37])
[12] (2002) 210 CLR 1; [2002] HCA 14
It was submitted that the Tribunal applied the wrong test because:
a)It recognised that the Applicant’s mother had been persecuted but found that the persecution itself was not for a Convention reason; and
b)It applied the wrong test as to what constitutes a particular social group.
The Tribunal, it was submitted, failed to understand that women in Indonesia are a recognisable social group and therefore failed to give realistic consideration to the persecution suffered by the review applicant. There was evidence that the mother had complained to the police but they had taken no meaningful action to protect her.
As to discretionary refusal issues and the question of an extension of time, Mr Turner submitted that the Applicant may have “sat on her hands” in one sense but did not know she was doing so. It was only when she went to TAFE that she found out the truth about her immigration situation. As to refusal on discretionary grounds, there was an acceptable reason for the Applicant’s delay in commencing proceedings.
The First Respondent’s Submissions
Counsel for the First Respondent, Mr Reilly, submitted that the application for review was out of time for the purposes of s.477(1) of the Migration Act and an extension of time should not be granted. The date of the decision for the purpose of s.477(1) is 15th March 2009 and the application was not filed until 28th April 2009.
Mr Reilly submitted that the application should not be granted because:
a)It is unmeritorious; and
b)The serious delay in bringing the application has not been adequately explained.
It was submitted that both grounds of the application failed.
Ground 1 failed, he submitted, because the Tribunal did look at the particular situation of the review applicant in considering her situation as a member of a social group, namely women in Indonesia. There was no evidence that Indonesia withheld state protection from women (unlike the situation in Pakistan as shown in Minister for Immigration and Multicultural Affairs v Khawar).
As to the Applicant’s second ground, the finding in Khawar turned on country information about the position of women in Pakistan and did not establish that “women in Indonesia” or a smaller subset are a social group. The Tribunal cannot be criticised for not considering a social group claim when there is no claim or evidence in support of the social group (see STCB v Minister for Immigration and Multicultural and Indigenous Affairs[13] at [39]).
[13] (2006) 231 ALR 556; 81 ALJR 485; [2006] HCA 61
Further, it was submitted, the there was no evidence that the review applicant was persecuted by her husband because of her membership of a particular social group or that the Indonesian state withheld protection from her because of her membership of that social group.
Counsel for the Minister submitted that relief should be refused in the Court’s discretion because of the Applicant’s delay of more than eleven years in bringing the application (Minister for Immigration and Citizenship v SZIQB[14] and SZGME v Minister for Immigration and Citizenship[15] at [51], [99]).
[14] [2008] FCAFC 20
[15] (2008) 168 FCR 487; [2008] FCAFC 91
Conclusions
The first matter to consider is whether the Applicant should be granted an extension of time to bring this application. The application is out of time.
For the purposes of s.477(1) of the Migration Act, the date of the Tribunal decision is 15th March 2009 (Migration Legislation Amendment Act (No 1) 2009, Schedule 2 item 7(2)). Under s.477(1), an application to the Federal Magistrates Court for a remedy in the exercise of the Court’s original jurisdiction under s.476 must be made within 35 days of the date of the migration decision.
As the date is 15th March 2009 for this purpose, the application should have been filed within 35 days, which would effectively have been Monday 20th April 2009. It was not filed until 28th April, so it is out of time.
Subsection 477(2) of the Act permits the Federal Magistrates Court to make an order extending that period of 35 days if:
a)
An application has been made in writing to the
Court specifying why the Applicant considers it is necessary in the interests of the administration of justice to make the order extending the time; and
b)The Court is satisfied that it is necessary in the interests of justice to make the order.
In looking at whether the Court should make an order extending the time, the Court must consider the totality of the delay and not just the fact that the application was filed just over a week past the “cut-off” date.
Mr Reilly submitted that there was an eleven year delay from 3rd April 1998 to 28th April 2009. Whilst the Applicant was a child for most of that time, there appeared from her evidence to be a degree of “wilful blindness” as to her situation. She did not have a Medicare card, nor did she have a driver’s licence. She gave evidence that her mother had discouraged her from applying for a driver’s licence and had been reluctant to talk about her immigration situation at all.
The Applicant was a child when she arrived in Australia. She was born on 15th September 1989. Thus, she was eight years of age when the Tribunal made its decision refusing her mother’s application for a protection visa. Her evidence was that she knew she was not an Australian citizen but believed that she had some form of permanent residency status.
Having seen and heard the Applicant give evidence, I accept her as a witness of truth. She appeared to answer questions truthfully even though she appeared to be understandably nervous. I accept her evidence that she did not become aware that she did not have a visa to live in this country until she applied to go to TAFE in April 2008. Her mother did not tell her, and even avoided the subject. Her brother, who apparently has become an Australian citizen, only told her after she asked him in 2008.
I am satisfied that the Applicant has given a satisfactory explanation of her delay until that time.
The Applicant’s explanation of the delay for about another eleven months is not so easily justifiable. Certainly, she gave evidence that she had sought advice about her situation from various migration agents and lawyers, one of whom she named, and that she was constantly told that there was nothing she could do. Nevertheless, the time taken to go through this process seems to be rather excessive. I accept that it was not until 23rd April 2009 that she consulted her current solicitor, Mr Turner, who promptly took steps to assist her. It is evident that Mr Turner acted with great speed in order to file the Applicant’s application without any further delay. The short delay between 23rd and 28th April is satisfactorily explained. It should be made clear that the Applicant was already past the “cut-off” date when she first consulted her present solicitor.
Bearing in mind the fact that the Applicant was a child for most of the time that elapsed after the Tribunal decision, and accepting her evidence that her mother kept her in the dark about her status until April 2008, and noting that there is a partial explanation for the delay until she was fortunate enough to consult Mr Turner, I am satisfied that it is in the interests of the administration of justice to make an order extending the 35 day period to apply to the Court for a remedy to be granted in exercise of the Court’s original jurisdiction under section 476 of the Migration Act in relation to the decision of the Refugee Review Tribunal the subject of this application.
Turning to the substantive application, the Applicant relies on two grounds of review.
The first ground claims that the Tribunal failed to carry out its statutory duty by looking only at the legal and official position of women in Indonesia without considering the actual position facing the Applicant’s mother.
The Tribunal considered the Applicant’s mother’s claim that the harm done to her was done by her de facto husband. The first step that the Tribunal took was to consider whether the harm claimed by the Applicant’s mother amounted to persecution, and it found that it did:
The description of what she suffered at the hands of her de facto husband indicates that she was persecuted by him.[16]
[16] Court Book 58-59
The Tribunal then turned to the consideration of the reason for the persecution:
The difficulty is whether the harm done to her then was inflicted for a Convention reason…[17]
[17] Court Book 59
The Tribunal then examined the possible grounds and came to the conclusion that the only possible ground was that of being member of a particular social group. There was no evidence before the Tribunal that the Applicant’s mother suffered the harm because of her race, religion, nationality or political opinion.
The Tribunal considered whether the particular social group could be “Indonesian women” or, more specifically, “Indonesian women in de facto relationships”, and rejected both of those categorisations.[18]
[18] Court Book 59
In my view, the Tribunal did consider the Applicant’s mother’s particular situation when it considered whether she could be categorised as being a member of a particular social group.
The Applicant’s second ground claims that the Tribunal applied the wrong test when it found that the Applicant had suffered persecution but not for a Convention reason, because it had applied the wrong test as to what constitutes a particular social group.
Contrary to the Minister’s submissions, I am of the view that the decision in Minister for Immigration and Multicultural Affairs v Khawar[19] is authority for the proposition that Indonesian women, or Indonesian women in de facto relationships, are a particular social group. Gleeson CJ considered this matter in Khawar at [32]-[33]:
In my view, it would be open to the Tribunal, on the material before it, to conclude that women in Pakistan are a particular social group.
The size of the group does not necessarily stand in the way of such a conclusion. There are instances where the victims of persecution in a country have been in a majority. It is power, not number, that creates conditions in which persecution may occur. In some circumstances, the large size of a group might make implausible a suggestion that such a group is a target of persecution, and might suggest that a narrower definition is necessary. But I see nothing inherently implausible in the suggestion that women in a particular country may constitute a persecuted group, especially having regard to some of the information placed before the Tribunal on behalf of Ms Khawar.[20]
[19] supra
[20] (2002) 210 CLR 1; [2002] HCA 14 at [32]-[33]
The authorities make it clear, however, that it is not sufficient to show that a person is a member of a particular social group. The persecution must either be inflicted on the person for the reason of being a member of a particular social group or, if the persecution is inflicted by a non-state agent, then it must be shown that the person was denied effective State protection because of being a member of a particular social group.
In the decision under review, the Tribunal found that the Applicant’s mother had suffered persecution at the hands of her de facto husband. As the Tribunal stated:
…what the Applicant has suffered and fears she could suffer comes under the category of crime.[21]
[21] Court Book 60
It was open to the Tribunal on the evidence, to find that the Applicant’s mother suffered persecution from a non-state agent, her de facto husband, for a reason unconnected with her being a member of a particular social group, or any other Convention reason.
The availability of state protection has been considered by the authorities. In Khawar, Gleeson CJ stated at [26]:
As her case is argued, and as a matter of principle, it would not be sufficient for Ms Khawar to show maladministration, incompetence, or ineptitude by the local police. That would not convert personally motivated domestic violence into persecution on one of the grounds set out in Art 1A(2). But if she could show state tolerance or condonation of domestic violence, and systematic discriminatory implementation of the law, then it would not be an answer to her case to say that such a state of affairs resulted from entrenched cultural attitudes. An Australian court or Tribunal would need to be well-informed about the relevant facts and circumstances, including cultural conditions, 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; but if, after due care, such a conclusion is reached, then there is no reason for hesitating to give effect to it.[22]
[22] (2002) 210 CLR 1; [2002] HCA 14 at [26]
Madgwick J considered the matter in SZAIX v Minister for Immigration & Multicultural & Indigenous Affairs:
If the state, despite the good intentions of its leaders, is not able, at what might be called the operational or grass-roots level, to have its operatives provide an acceptable level of protection against serious harm, and the dereliction of those operatives has as its basis their discrimination of a Convention kind against the appellant, that situation…’may turn the acts of others [ie non-state actors] into persecution for a Convention reason’…
The Applicant’s mother in the decision under review claimed there was no protection for wives in Indonesia, and she had to pay a fee to the police each time she went to make a complaint.[23]
[23] Court Book 58
The Tribunal considered this aspect of the Applicant’s mother’s claim:
when she reported her de facto husband to the police, they told her the limits of the protection they could provide but that it did include the application of the law to him. She reported him because his behaviour was unacceptable. They talked with her husband and threatened him with jail. Of course, the Applicant found an after-the-event response inadequate. However, that is a characteristic problem with criminal acts and the criminal law in many countries. The law rarely provides for arrest prior to a crime being committed; nor is any police force set up so that it can prevent all and every crime, particularly those which occur within a family or home.[24]
[24] Court Book 60
The Tribunal clearly considered the response of the authorities to the Applicant’s mother’s claim that there was no protection for wives in Indonesia. However, there was evidence that led the Tribunal to find that the police had responded to the Applicant’s mother’s complaints, even though she was not satisfied with the efficacy of their response.
There was no evidence before the Tribunal that the police had failed to act because of a Convention reason. There was certainly no evidence of “state tolerance or condonation of domestic violence, and systematic discriminatory implementation of the law”[25].
[25] Khawar at [26]
In short, the Tribunal did consider the particular circumstances of the Applicant’s mother. On the evidence it was not satisfied that the Applicant had suffered persecution form a non-state agent of persecution from which she had been unable to obtain state protection for a Convention reason.
It follows that the Tribunal neither failed to carry out its statutory duty nor applied the wrong test. The Applicant’s grounds 1 and 2 have not been made out.
No jurisdictional error has been shown. As a result, the Tribunal decision is a privative clause decision (s.474(2)). It is not subject to declaration, certiorari or mandamus (s.474(1)).
It follows that the application will be dismissed. The Court will consider the question of costs.
There are, however, strong compassionate issues in this case, as counsel for the Minister has suggested. The Applicant has been placed in a most unfortunate position through no fault of her own and, indeed, without her knowledge. It would be hard not to sympathise with the situation of a young woman, still not yet twenty years old, who found out as an eighteen year old that she was an unlawful non-citizen in the country in which she has resided since she was a child. The Applicant may wish to consider obtaining advice from her solicitor about a request to the Minister under s.417 of the Act to a more favourable decision than that made in her case by the Tribunal. That is a matter for her.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 28 August 2009
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