SZSCD v Minister for Immigration and Border Protection

[2013] FCA 1471

FEDERAL COURT OF AUSTRALIA

SZSCD v Minister for Immigration and Border Protection [2013] FCA 1471

Citation:	SZSCD v Minister for Immigration and Border Protection [2013] FCA 1471
Appeal from:	Application for extension of time for leave to appeal: SZSCD & Anor v Minister for Immigration & Anor [2013] FCCA 1196
Parties:	SZSCD and SZSCE v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	NSD 1800 of 2013
Judge:	DOWSETT J
Date of judgment:	19 November 2013
Date of hearing:	19 November 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	13
Counsel for the First Applicant:	The First Applicant appeared in person
Counsel for the Second Applicant:	The Second Applicant did not appear
Solicitor for the First and Second Respondents:	DLA Piper

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1800 of 2013

BETWEEN:

SZSCD
First Applicant

SZSCE
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	19 NOVEMBER 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.the name of the first respondent be amended to Minister for Immigration and Border Protection;

2.the application is dismissed; and

3.the applicants 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 1800 of 2013

BETWEEN:

SZSCD
First Applicant

SZSCE
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE:	19 NOVEMBER 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time in which to appeal against a decision of the Federal Circuit Court dated 7 August 2013, dismissing an application for judicial review of a decision of the Refugee Review Tribunal.  The applicants are citizens of India.  They arrived in Australia on 29 November 2010.  The second applicant is the first applicant’s husband.  On 30 November 2010, the first applicant applied for a protection visa.  The second applicant has made no claim of his own but rather relied upon the first applicant’s claim.  The first respondent’s delegate refused the application on 24 November 2011. 

2. The first applicant claimed to have converted from Roman Catholicism to Protestantism, and to have been active in a Protestant organisation in her home state of Kerala.  She claimed that she and her husband had been attacked by both Catholics and Hindus.  In particular, on 23 October 2010, she and her husband were attacked by 30 to 40 men outside their home.  The home was subsequently set on fire.  The first applicant claimed that this attack was because of their alleged involvement in the conversion of two Hindu families to Christianity.  As a result of the attack, they travelled to Madurai – a trip taking eight to nine hours by bus.  In Madurai they were again attacked by men armed with sticks.  The Protestant church then sent them to Madras.  The first applicant claimed that a pastor told her that it was not safe for her to remain in India, and that the Church paid for her and her husband to travel to New Zealand, and then to Australia. 

3. The first applicant also claimed to fear persecution for reason of her belonging to the Mukkuvar caste. 

4. The Tribunal effectively rejected fundamental aspects of this claim.  At paragraphs 102 to 103 of its reasons it said:

   The Tribunal finds that the applicant has fabricated her claims to Australia’s protection.  The Tribunal does not accept the applicant’s claim to have converted to Protestantism, to have been the object of discrimination by Catholics or of violence by Hindu fundamentalists, or to have experienced discrimination amounting to persecution on the basis of her caste.  The Tribunal is satisfied that the applicant has constructed her claims in order to advance her migration intentions and not because she has a genuine fear of harm for a Convention reason or for any reason if she were to return to India.  The Tribunal finds that the applicant does not have a well‑founded, or any, fear of Convention related persecution in India in the reasonably foreseeable future.

5. The Tribunal put its doubts about the truthfulness of her evidence to the applicant at the hearing.  The applicant’s responses are set out in her evidence given at the hearing. 

6. On 26 October 2012, the applicant filed an application for review of the decision by the Federal Circuit Court on the following grounds:

   (1)       RRT made decision without any enquiry.

   (2)       Failure to take into account relevant consideration.

   (3)       No legal assistance being provided.

   In respect of the first ground, the Circuit Judge observed that the Tribunal had no general duty to inquire.  Further, there was no particular matter that required investigation in this case.  His Honour noted that the second ground was not particularised, and that it was not for the Court to guess about the subject matter of such a complaint.  In relation to ground 3, his Honour found, by reference to documents on the Court file, that the first applicant had received some legal advice.  In any event, his Honour observed that there was no right to free legal advice.  To the extent that the ground might raise the question of procedural fairness, his Honour concluded that there was no substance in the complaint. 

7. His Honour also addressed the Tribunal’s assessment of the so-called complementary protection criteria.  Whilst his Honour considered that the Tribunal had dealt with this matter in a rather peremptory way, he accepted that the rejection of the first applicant’s fundamental claims led inevitably to her failing to establish the existence of a complementary protection obligation.  For these reasons, the application was refused.

8. The first applicant filed the present application for an extension of time in which to appeal.  The only proposed ground of appeal is said to be jurisdictional error.

9. The application was made within a few days of the expiry of the period for appeal, and so the first respondent does not point to any prejudice arising out of the failure to appeal within time.  The second respondent has indicated that it will be abide the Court’s order in this matter.  The delay appears to have been brought about by a misunderstanding and was only for a matter of days.  In those circumstances, the only real matter for consideration is the prospect of success on appeal.  I invited the first applicant to explain the errors which she said were made by the Circuit Judge.  Initially, she referred to the rejection of her evidence as to the basic facts upon which she relies.  The second ground which she identified was the failure by the Tribunal to investigate her claims. 

10. Clearly, the question of the rejection of her claims is not a matter which could have been dealt with before the Circuit Judge, at least in the absence of jurisdictional error.  No such error was demonstrated to the Circuit Judge, and none has been demonstrated before me.  As to the question of investigation, the Circuit Judge correctly identified the limited extent of the Tribunal’s duty to investigate, if it can be called that.  He concluded – correctly, in my view – that there was no justification for this criticism of the Tribunal’s decision.

11. Subsequently, the first applicant identified a third ground, namely, that had she received an adjournment in the Tribunal, she would have been able to produce her certificate of baptism into the Protestant church, thus strengthening her claims.  I accept that the production of such a certificate may have influenced the Tribunal in its decision.  However the first applicant has had more than adequate opportunity to obtain the relevant document.  The matter is discussed at some length in the Tribunal’s reasons.  The proceedings in the Tribunal were initially commenced on 15 December 2011.  The matter was listed for hearing on 29 May 2012.  On 17 May 2012 the first applicant asked for an adjournment on the basis that she was receiving assistance in the preparation of statements.  On 18 May 2012 she made a handwritten request for rescheduling.  The matter was adjourned to 13 June 2012, on which date she appeared. 

12. At [73] and [74] of its reasons the Tribunal referred to her evidence concerning her conversion to Protestantism.  She said that she had lost the certificate of baptism when her house was set on fire, and that she was trying to obtain a duplicate certificate. The Tribunal noted that in an interview with the first respondent’s delegate on 21 October 2011 she had said that she would obtain copies of the baptismal certificate, as well as relevant photographs and a poster advertising group baptism.  By June 2012, she had not obtained the certificate.

13. There seems to be an error in the Tribunal’s reasons at [74] where it is said that 18 months had passed in which she had not provided that material.  In fact the period from 21 October 2011 was a period of eight months.  In any event, at the conclusion of her evidence she requested that the Tribunal allow her time to provide her certificate of baptism.  The Tribunal indicated that it would consider any evidence or material which it received prior to making a decision.  The decision was made on 21 September 2012, that is, some three months after the hearing.  In those circumstances, I can see no basis for the first applicant’s complaint concerning proceedings in the Tribunal.  The nature of the proceedings before me is such that no question of an adjournment can arise at this stage.  In any event, even now there is no suggestion that she has received the certificate.  She says only that she is confident that she will receive it in the next month.  There is really no reason for believing that her prospects will have improved. In the circumstances I conclude there are no prospects of success on appeal.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:       31 March 2014