SZSJO v Minister For Immigration and Anor (No.2)

[2013] FCCA 904

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSJO v MINISTER FOR IMMIGRATION & ANOR (No.2) [2013] FCCA 904

Catchwords:
MIGRATION – Application in a Case – substantive application dismissed for non-appearance – Application in a Case granted – orders set aside – immediate show cause hearing of substantive application – no arguable case – substantive application dismissed.

Legislation:  

Federal Circuit Court Rules 2001 (Cth), rr.13.03, 44.12
Migration Act 1958 (Cth), ss.36, 424A, 425, 425A, 426A, 441A, 441C
Migration Regulations 1994 (Cth), r.4.35D

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; (2006) 93 ALD 300; [2006] HCA 63; (2006) 81 ALJR 515
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
Saeed v Minister for Immigration and Citizenship [2010] HCA 23
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

Applicant: SZSJO

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2939 of 2012

Judgment of: Judge Nicholls

Hearing date: 12 June 2013

Date of Last Submission: 12 June 2013

Delivered at: Sydney

Delivered on: 12 June 2013

REPRESENTATION

The Applicant: In person

Appearing for the Respondent: Ms B Rayment

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the orders made on 27 May 2013 be set aside, pursuant to Rule 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The application made on 12 December 2012 is dismissed, pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant pay the first respondent’s costs set in the amount of $3739.00. 

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2939 of 2012

SZSJO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me today an Application in a Case made on 28 May 2013. That application seeks that the Court set aside orders made on 27 May 2013. These were orders made in the absence of the applicant, to dismiss an application that she made on 12 December 2012, which sought review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 8 November 2012, which affirmed the decision of the delegate of the respondent Minister to refuse the grant of a protection visa to the applicant.

Before the Court

1. The applicant appeared in person today. She was assisted by an interpreter in the Nepali language. Ms B Rayment appeared for the respondent Minister. 

2. The applicant explained to the Court that she had mistakenly attended at the Court’s registry at Queen’s Square on the previous occasion, and that by the time she had learnt of her mistake, she had arrived here at William Street (where the Court was sitting) late to find, subsequently, that her application had been dismissed in her absence, pursuant to r.13.03(C)(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) .

3. I note that at the time of the making of the Application in a Case, the applicant also filed an affidavit said to have been made by her on 28 May 2013. In that affidavit she said that after leaving Queen’s Square she went to John Maddison Tower in Goulburn Street. This was in circumstances where the applicant had attended here, at this same Court (at William Street), at the first Court date in this matter on 13 February 2013. On that date, amongst other things, I made clear to the applicant the location of the next Court event in her matter (William Street).

4. In any event, the applicant is here before the Court today. I determined in those circumstances, notwithstanding some difficulties that I had with the applicant’s explanation for her failure to attend on the previous occasion, to grant the Application in a Case to the extent of setting aside the orders that were made in her absence.

5. However, I also determined that I should proceed to a show cause hearing pursuant to r.44.12 of the Rules. I did so for the following reasons.

6. The grounds of the original application are:

   “1. I disagree with the RRT’s decision in my case because the member ignored to look at the favourable and supportive evidence based on country information as to my fear of harm and forceful marriage.

   2. I believe that the RRT member has made an error of law in making the decision in my case.

   3. I argue that in my case the tribunal member’s decision lacks of fairness and natural justice.”

7. First, the grounds, on their face and in light of the Tribunal’s decision (which is before the Court by way of the Court Book (“CB”) filed by the Minister) appear to be simply a disagreement with the findings, and conclusion, made by the Tribunal. 

8. Second, I put the applicant on notice at the first Court date of the difficulties that she faced with the purported grounds as asserted in her original application. 

9. Third, the applicant was referred to a lawyer on the panel of the Court’s “RRT Legal Advice Scheme”. She confirmed before the Court today that she did receive legal advice. I note, for the record, the lawyer to whom she was referred was Mr T Ower of counsel who often appears before this Court in matters of this type.

10. Fourth, at the first Court date, orders were also made giving the applicant the opportunity to file and serve any amended application and any other material in support of her application to the Court. I note that, despite legal advice, nothing further has been filed by the applicant. 

11. In all those circumstances, it was appropriate in my view to proceed to a show cause hearing.

Background to the Substantive Application

1. In looking at the application, it is important to note by way of explanation, the following background. The applicant is a citizen of Nepal (CB 12). She arrived in Australia on 13 July 2009 as a dependent with a vocational education and training sector visa. That is, she was a dependent of the holder of that visa (CB 13). Some two years later, on 1 September 2011, she applied for a protection visa (CB 1 to CB 31, including attachments). The claims set out in that application were essentially as follows:

   1)The applicant claimed to have converted from Hinduism to Christianity “7 years ago” (CB 17).

   2)Her mother supported her conversion, and as a result, her mother and father divorced. Her father and “other relatives” “ostracised” her (CB 17). Her neighbours and “other people” accused her of being a radical (CB 17). Further, her father was angry with her as she had not entered into an arranged marriage with a Hindu man which he had organised (CB 19).

   3)As a result of her conversion and her Christian faith, the applicant feared harm from “Hindu extremists” (CB 19). Further, she feared that the government “would not or could not” protect her from the extremists because “they are influenced by Hinduism” (CB 20). 

   4)She also said she feared harm from Maoists, her father and relatives, as well as “conservative people” (CB 19).

   5)The applicant specifically claimed to fear “discrimination, violence, harm, ostracism” and “even death” as a result of her conversion to Christianity (CB 18).

The Delegate

1. The applicant was invited to attend an interview with the Minister’s delegate (CB 37 to CB 38). In that interview, the applicant provided a letter from a “Rev Alison Napier” of “St Andrews Cathedral” (CB 39), dated 19 February 2012. She also provided a statement in support of her protection visa application (CB 40 to CB 42). 

2. The Minister’s delegate decided to refuse the protection visa application on 29 February 2012 (CB 43 to CB 64). I note that the delegate in the decision record expressed some concern that the applicant may not have been using her “true identity” (CB 49.7). However, for the purposes of assessing the application, the delegate accepted that the applicant’s identity was as the applicant had stated (CB 49.7).

3. The delegate was satisfied that the applicant was a Christian, and that she had converted to Christianity in 2004 and attended church in Nepal (CB 57.9). However, the delegate was not satisfied that the applicant faced a real risk of persecution, and in particular I note the key finding in that regard, where the delegate said that it was (CB 63.4):

   “…not plausible that she would be attacked by Maoists, acts of violence against Christians by Hindu extremists are isolated and not systematic, and the applicant would have police protection from violence perpetrated by Hindu extremists or her family…”

The Tribunal

1. The applicant applied to the Tribunal for review of the delegate’s decision on 23 March 2012 (CB 65 to CB 70). She was invited to attend a hearing, which she attended (CB 75 to CB 76 and CB 84 to CB 85). 

2. The Tribunal affirmed the delegate’s decision (CB 88). The Tribunal accepted “as credible” that the applicant had converted from Hinduism to Christianity while living in Nepal ([59] at CB 97). It also accepted that the applicant regularly attended church, that she was baptised, and that she engaged in a form of proselytising ([59] at CB 97). The Tribunal further accepted that the applicant had not entered into an arranged marriage with a Hindu because of her conversion, and that her father was “angry” as a result of this ([61] at CB 97). 

3. However, in light of the applicant’s evidence as to her religious practice in Nepal and in light of country information to which the Tribunal had regard, the Tribunal did not accept that the applicant would not be able to continue practising Christianity, as she had done before, if she returned to Nepal ([63] at CB 97). In particular, the Tribunal found that ([64] at CB 98):

   “…[s]he will be able to attend church as she did in the past and, while there may be a prohibition on proselytising,…the discrete and minimal activities of the applicant as she performed them in the past (predominantly handing out flyers after the weekly service and on only a few locations approaching others to talk about Christianity) will not lead to the applicant being prevented from practising her religion or suffering any form of harm…”

4. While the Tribunal also accepted that the applicant’s friends, relatives and “society generally” may not approve of her conversion, she would not suffer harm on that basis if she returned to Nepal ([65] – [68] at CB 98).

5. In light of the applicant’s complaint before the Court, I note that the Tribunal specifically considered that the applicant’s father “might” resume inquiries about the arranged marriage if she returned to Nepal. However, it was not satisfied that this would lead to “any disruption” to the applicant’s life. Nor would it amount to serious harm ([70] at CB 98).

6. Having concluded that the applicant did not satisfy the criterion set out in s.36(2)(a) of the Migration Act 1958 (Cth) (“the Act”), the Tribunal considered whether the applicant met the complementary protection criterion set out in s.36(2)(aa) of the Act. However, the Tribunal was not satisfied that there was a real risk of the applicant suffering significant harm if she returned to Nepal ([75] – [76] at CB 99).

Consideration

1. I have already made reference to the grounds of the application as originally put before the Court (see above at [7]). I have also already made note of what was said to the applicant at the first Court date and her referral to a lawyer on the panel of the “RRT Legal Advice Scheme”. Despite all these opportunities provided to the applicant, nothing further has been put before the Court. 

2. In support of her application today, when given the opportunity, the applicant did no more than express disagreement with the Tribunal’s decision. The applicant asked the Court for “justice”, but it was clear by her submissions to the Court (which in effect were assertions that she could not go back to Nepal, pressing her Christian beliefs, and reference to the forced marriage and her father’s attitude) that the justice that the applicant was seeking from the Court was for the it to intervene and, in effect, to substitute a more advantageous visa outcome for the applicant. 

3. The issue for the Court today is whether the original application made to the Court raises an arguable case for the relief that the applicant seeks. Having regard to that application, the applicant in effect says, by way of that application, that she seeks that the Tribunal decision be quashed and that the matter be remitted to the Tribunal, requiring the Tribunal to determine the application according to law. 

4. In all, for the reasons that I will explain, the application to the Court, even in light of what the applicant has said to the Court today, does not reveal an arguable case in law for the relief that the application seeks.

Ground One

1. The first ground of the application essentially expresses “disagreement” with the Tribunal’s decision. This is said to be because the Tribunal “ignored” country information that was favourable to, and supportive of, the applicant’s claim to fear harm and the “forceful marriage”. I should note that there may be some latitude here that the applicant also may be suggesting that the Tribunal failed to consider her evidence in support of that fear. However, whichever way it is looked at, the ground does not rise to an arguable case for the relief sought. 

2. To the extent that the applicant may be complaining that the Tribunal did not consider her evidence, it is of course the case that the Tribunal is not required to set out every piece of evidence before it in its decision record. The obligation on the Tribunal, as discussed and explained in cases such as NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 and Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 and the like, is that the Tribunal considers and deals with each claim, and each aspect of a claim, made by an applicant, either expressly made or clearly arising on what is put before the Tribunal.

3. As Ms Rayment pointed out today, the Tribunal did consider the question of her claim of “forced marriage”, her father’s attitude and role in that matter, and dealt with that claim, contrary to the applicant’s assertion that it ignored this matter. In that light, the applicant’s complaint really can only be seen in the sense that the Tribunal did not accept her claim that this matter would lead to her suffering serious or significant harm. In these circumstances, such a complaint does not rise to an expression of an arguable case for the relief sought. 

4. I should note, importantly, in relation to the applicant’s evidence supporting her claim relating to her conversion to Christianity, the Tribunal accepted the applicant’s claims in this regard. However, again for the reasons that it gave, which were reasonably open to it, the Tribunal found that it could not be satisfied that the harm feared amounted to serious or significant harm.

5. In relation to country information, I note that at [63] (at CB 97) of its decision record the Tribunal made specific reference to country information. It noted that there was information before it that supported the view that occasionally, or “sometimes”, harm did occur to those who had converted to Christianity in Nepal. But, the Tribunal preferred and accepted country information that said that such occurrences were rare, and in light of the fact that, on the applicant’s evidence, she had lived safely in Nepal before coming to Australia, after having converted for some years, it was not satisfied that she would suffer any form of harm if she returned to Nepal ([64] at CB 98).

6. In that sense, contrary to the applicant’s assertion, the Tribunal did look at information that was favourable to the applicant’s claim. However, on balance, the Tribunal preferred other country information on which to base its ultimate conclusion, and indeed not to accept that the applicant’s evidence established the requisite level of harm, such that the visa must be granted.

7. I should also note in this regard that the choice and weight to be accorded to country information is for the Tribunal to determine (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10). In any event, before the Court and despite opportunity, the applicant made no argument as to exactly what country information was favourable, let alone any other country information that she may have said the Tribunal should have taken into account.

8. Therefore having also dealt with the matter of the “forced” marriage, the father’s role in this, the claims regarding Hindu extremists, society in general, her family and the like, the Tribunal made findings which were open to it. Ground one does not present of an arguable case for the relief sought.

Ground Two

1. Ground two asserts the Tribunal made an error of law in deciding the applicant’s case.  Again, despite opportunity, no particularity has been added, and in the absence of any particulars, the ground simply does not rise to an arguable case.

2. In any event, it can not be made out. Importantly, I have considered what is otherwise before the Court, that is, the Tribunal’s decision record, and I cannot see any other error of law. The Tribunal, as I said, plainly considered the applicant’s claims and made findings that were reasonably open to it. It gave cogent reasons. Again, looking at the only evidence of what occurred at the hearing before the Tribunal, I cannot see in terms of s.425 of the Act that the Tribunal failed to sufficiently canvas or raise with the applicant the issues dispositive of the review (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; (2006) 93 ALD 300; [2006] HCA 63; (2006) 81 ALJR 515) (“SZBEL”). No arguable case is raised with ground two.

Ground Three

1. Ground three asserts that the Tribunal decision lacked fairness and justice. The Tribunal is certainly required to afford the applicant a “fair” process. That is, a fair process in the conduct of the review. However, it is not required to provide what the applicant might consider to be a “fair”, or “correct” or the “right”, outcome (Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1).

2. Second, to the extent that the ground could be seen as a complaint that the Tribunal failed to accord the applicant procedural fairness, then on the material before the Court, there is no basis for any such assertion. This is a case to which Div.4 of Pt.7 of the Act applies as the exhaustive statement for the natural justice hearing rule in relation to the matters that are dealt with in that division (Saeed v Minister for Immigration and Citizenship [2010] HCA 23). I note, in this regard, that the Tribunal complied with s.425. The invitation to the hearing met all the relevant statutory and regulatory requirements (s.425, s.425A, with reference to s.426A, s.441A(4), s.441C(4) of the Act and r.4.35D of the Migration Regulations 1994 (Cth)). As I said earlier, the issues dispositive or determinative of the review were exposed at the hearing (SZBEL).

3. I cannot see that any obligation, pursuant to s.424A of the Act, arose in this case. The Tribunal accepted much of the applicant’s claims. It accepted, for example, her claimed conversion to Christianity, and, indeed, her father’s anger at her failure to enter into an arranged marriage. It was simply that it preferred its ultimate analysis of country information and, to that extent, such country information falls within the exception set out at s.424A(3)(a), from the obligation in s.424A(1).

1. To the extent that the Tribunal relied on the applicant’s own evidence, then clearly that falls within the exception set out at s.424A(3)(b), from any obligation under s.424A(1). Nor can I see that any other matter of procedural unfairness can be said to emerge, such as to require any consideration of an arguable point from the material that is before the Court. Ground three does not assist the applicant in light of the issue before the Court today.

Conclusion

1. Nothing that the applicant has said to the Court, rises above a disagreement with the Tribunal’s findings and conclusions. In essence, the application seeks merits review of the Tribunal’s decision from this Court. Clearly, relevant authorities make plain, it is not within the province of this Court, to indulge in any such review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).

2. In all, I can only repeat that the grounds of the application do not reveal an arguable case for the relief that the applicant seeks. It is appropriate in these circumstances that the application to the Court be dismissed pursuant to r.44.12(1)(a) of the Rules and I will make an order accordingly.

3. It is appropriate that an order for costs be made. The applicant has put nothing before the Court to argue against the making of that order. As to the amount, I am satisfied that the amount sought by the Minister is reasonable, having regard to the work actually done by the Minister’s solicitors. I will make an order in that amount. 

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Nicholls.

Associate: 

Date:  23 July 2013