SZQAS v Minister for Immigration and Citizenship

[2011] FCA 1398

FEDERAL COURT OF AUSTRALIA

SZQAS v Minister for Immigration and Citizenship [2011] FCA 1398

Citation:		SZQAS v Minister for Immigration and Citizenship [2011] FCA 1398
Appeal from:		SZQAS v Minister for Immigration and Citizenship [2011] FMCA 555
Parties:		SZQAS and SZQAT  v  MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 1596 of 2011
Judge:		PERRAM J
Date of judgment:		8 December 2011
Catchwords:		IMMIGRATION – Visas – protection visa – grounds of appeal
Legislation:		Migration Act 1958 (Cth) s 91R
Cases cited:		SZQAS v Minister for Immigration and Citizenship [2011] FMCA 555 affirmed 1008146 [2011] RRTA 148 cited
Date of hearing:	22 November 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	20
Counsel for the Appellants:	The appellants appeared in person with the assistance of an interpreter
Solicitor for the First Respondent:	Mr R Baird of Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1596 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZQAS
First Appellant

SZQAT
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	8 DECEMBER 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellants pay the first respondent’s costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1596 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZQAS
First Appellant

SZQAT
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	PERRAM J
DATE:	8 DECEMBER 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The underlying question to this litigation is whether the appellants, who are husband and wife, should be granted a protection visa.  The appellants are nationals of Bangladesh who arrived in Australia in early March 2010 on tourist visas.  The wife, who is the present first appellant, then filed an application for a protection visa the essential basis for which was that she held a well-founded fear that if she returned to Bangladesh she would be persecuted because she would be exposed, inter alia, to physical and psychological abuse at the hands of her relations.

2. The delegate of the Minister who processed the wife’s application was not disposed to accept her fears were well-founded, a sentiment which was evident too when the Refugee Review Tribunal (the ‘Tribunal’) affirmed the delegate’s decision: 1008146 [2011] RRTA 148.

3. She then applied to the Federal Magistrates Court for orders which, if granted, would have quashed the Tribunal’s decision and required it to consider the matter afresh. As the case was ultimately pursued in the Court below the appellants’ complaint was that the Tribunal had failed to consider the husband’s application on its own terms. At least as a matter of paperwork the husband, who is the present second appellant, had never made an application in his own right but instead had merely claimed to be a member of his wife’s family (the close family of the holder of a protection visa is entitled to protection too under s 36(2)(b) of the Migration Act 1958 (Cth)). Before the learned Federal Magistrate it was submitted on the husband’s behalf that he had, in fact, made such an application as a matter of substance.

4. The learned Federal Magistrate accepted that the question was to be approached as a matter of substance:  ‘In my view, as a general principle,’ he remarked, ‘whether a claim is made by an applicant is a question of fact to determine from what is said and written, rather than from what form is used’ (SZQAS v Minister for Immigration and Citizenship [2011] FMCA 555 at [25]). His Honour also accepted that if the husband had made his own application and if the Tribunal had failed to deal with it, this would have entailed the commission by the Tribunal of a jurisdictional error which, in turn, would have enlivened the Federal Magistrates Court’s power to grant constitutional writs directed to the Tribunal.

5. The learned Federal Magistrate then posed for himself two questions which he answered adversely to the appellants.  These were:  first, whether the husband, as a matter of substance, had made his own application for a protection visa or whether, instead, he had merely claimed to be part of his wife’s ‘family unit’; and, secondly, whether, if such an application had been made, the Tribunal had failed to consider it.

6. The appellants’ appeal to this Court concerns the first question.  They submit that the husband did make claims in his own right to the Tribunal which it did not consider.  As the appeal has been formulated, the question at hand is a question of fact which it was for the learned Federal Magistrate to find.  It is a question about the manner in which the husband’s claim had been pursued before the Tribunal.  Review of that finding of fact by this Court requires the demonstration of error on his Honour’s part.  The appellants, in their written submissions, pointed to four matters which they contended showed that the husband had applied for a protection visa in his own right before the Tribunal.  I will set out the submission verbatim:

   (i)At the hearing held by the Tribunal, my husband claimed that we “will be killed” if we return to Bangladesh.

   (ii)In response to the Tribunal’s question as to why this would occur, my husband stated “they want us to divorce.  They want him to marry someone else.  They want him to marry a cousin”.

   (iii)Later in the hearing the Tribunal asked the applicants “if there was anything else we wish to say before the hearing closed”.

   (iv)In response my husband said that “if we returned something would happen to us, and they would not be able to live any longer.”

7. These submissions require close attendance to what the Tribunal said about the husband and how the learned Federal Magistrate interpreted the Tribunal’s reasons.  It is convenient to begin with the Tribunal’s reasons which dealt with the husband’s position in three paragraphs ([126]-[128]) under the heading ‘The second applicant’.  In considering the text of the Tribunal’s reasons it is useful to keep in mind that the first applicant was the wife and the second applicant the husband.  The relevant portion is as follows:

   The second applicant

   126.The second applicant told the Tribunal that his brother who has been helping him has told him that if they return to Bangladesh they will be killed.  (At this point the Tribunal requested the applicant not to whisper to the second applicant.)  The Tribunal expressed surprise at this claim.  The Tribunal asked why this would happen in the future when presumably there had been ample opportunity for the family to have done so in the past.  It noted that he and the applicant had been living with his family for three years.  Also they had been living in Dhaka and his family had apparently visited him.  The Tribunal asked why would it be that they now suddenly wanted to kill the applicant and him now. [sic]

   127.The applicant said that they want him to divorce the applicant.  They want him to marry someone else.  They want him to marry a cousin.

   128.The Tribunal asked who had witnessed their signatures on the PVA.  The second applicant said it was a justice of the peace.  He has a grocery shop.  He said that he did not know that person.

   (Emphasis added).

8. The person speaking in [126] is the husband. It is clear from the first emphasised portion that whilst he was speaking his wife was whispering to him. In paragraph [128] the speaker is also the husband. The use of the word ‘applicant’ is ambiguous in the first sentence of [127]. It could mean ‘The husband said that they want him to divorce the wife’ but it could also mean ‘The wife said that they want him to divorce her’.

9. Given that [127] is part of a section dealing with the husband’s position and is proceeded and followed by paragraphs in which the speaker is the husband it seems to me more likely that the speaker in [127] is also the husband.

10. These paragraphs, and in particular [127], formed the centrepiece of the husband’s case in the Court below that he had, in fact, made an application in his own right.

11. The learned Federal Magistrate dealt with this aspect of the matter as follows (at [49]):

    In any event, in my view in this case the Tribunal did consider the issue of the risk of harm faced by both applicants.  In the present case, in my view, the relevant claims relating to the second applicant had been advanced on his behalf by the first applicant.  Counsel for the applicants sought to place stress on [127] of the Tribunal’s reasons which, so he submitted, recorded a separate claim made orally at the Tribunal hearing by the second applicant.  However, it is clear, in my view, that that statement was not made by the second applicant but, on his behalf, by the first applicant.  In my view, all of the claims asserting a fear of harm by the second applicant were made on his behalf by the first applicant.  He properly told the Tribunal that he made no separate claims. 

    (Emphasis added).

12. I do not agree with the third last (emphasised) sentence nor with the second last which cannot be reconciled in any way with [126] or [127] of the Tribunal’s reasons:  the short fact is that the husband did speak and did make statements about himself.  It follows that error is demonstrated in the reasoning of the Court below to the extent that it suggests that the wife spoke on the husband’s behalf.

13. But this error is not material.  The learned Federal Magistrate also took into account the husband’s own statement that he was not making a claim on his own behalf.  So much appears from the last sentence of the passage just quoted.  That statement is correct.  The Tribunal’s reasons recorded at two distinct points that the husband was not applying in his own right. The first was at [48] (‘The second applicant confirmed to the Tribunal that he did not make separate claims for protection’) and the second was at [161] (‘The second applicant confirmed during the hearing that he does not make separate claims for protection.’).

14. In my opinion, despite the error in relation to [126] and [127] the Federal Magistrate was correct to act on this other material in forming the view that the four statements now relied upon were not put forward on the husband’s behalf but instead, and in contradistinction, on the wife’s.  In drawing that conclusion I have not overlooked [184] of the Tribunal’s reasons where, in the midst of rejecting the wife’s account, the Tribunal said ‘It does not accept that the applicants would be searched for, or would be killed by their family or in-laws or anyone acting on their behalf if they were to return to Bangladesh.’  In light of the clear statements that the husband was applying as part of the wife’s family unit this statement does not disclose a substantive application by the husband in his own right and this is so whether it be viewed in isolation or together with [126]-[128].

15. Both the notice of appeal and the appellants’ written submissions raise a further argument and this is that the Tribunal committed a jurisdictional error by misconstruing or misapplying s 91R of the Migration Act. For present purposes it suffices to note that s 91R(1)(b) requires an applicant for a protection visa to establish, inter alia, not only that he or she has been subject to persecution but that the persecution in question involves ‘serious harm to the person’. The Tribunal had accepted that the wife had been subject to a number of indignities but declined to find that these had involved serious harm to her person in that sense.

16. There is a procedural difficulty with this ground.  In the Court below this argument had formed part of the documentation with which the case was initiated.  But it is equally apparent that when the matter was called on for hearing it was not pursued. In the present appeal the Minister submitted that it could not be pursued now without a grant of leave which he opposed on the basis that the ground had insufficient prospects of success to warrant it. The Minister did not submit that, and I do not need to consider whether, an entitlement to pursue this ground was waived by the appellants’ counsel at first instance, in effect, abandoning the point.

17. Accordingly, it is necessary to have regard to the substance of the matter.  In their written submissions, the appellants refer to four findings made by the Tribunal which they say constituted serious harm to the person.  These were the Tribunal’s acceptance (at [170]) that whilst the wife lived with her parents, they:

    (a)  wanted to keep her inside the house;

    (b)  did not permit her to speak freely;

    (c)  forced her to pray and wear the hijab; and

    (d) did not give her the freedom accorded to her brothers.

18. It might be noted for completeness that whilst the Tribunal had accepted that these matters had occurred it did not accept the occurrence of a number of other, perhaps more serious incidents.  For example, the Tribunal did not accept that the wife had been tortured by being beaten with a stick and tied up (at [172]).

19. In relation to the four matters set out above the Tribunal noted that these had happened whilst she was a child living at home and, in that context, was not prepared to characterise any of them as involving ‘serious harm’ (at [170]). Section 91R(1)(b) is about serious harm to the person but I do not think that the Tribunal’s failure explicitly to refer to the harm needing to be the person weakens this aspect of its conclusions. Indeed, on one view it strengthens them. It would be inappropriate to seek to gloss the evaluative word ‘serious’ but, whatever it means, I do not think that the four matters identified constitute ‘serious harm to the person’ in the context of a child at home in a strict Muslim household. I do not think, therefore, that the proposed ground would enjoy any prospects of success were leave to be granted and, in that circumstance, I decline to grant leave to raise it as a ground of appeal.

20. In those circumstances the appeal must be dismissed with costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Associate:

Dated:       8 December 2011