SZSLO v Minister for Immigration
[2013] FCCA 183
•2 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSLO v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 183 |
| Catchwords: PRACTICE & PROCEDURE – Whether earlier interlocutory order made pursuant to Rule 44.12 of the Federal Circuit Court Rules dismissing application for judicial review of decision of Refugee Review Tribunal should be set aside pursuant to Rule 16.05 of the Federal Circuit Court Rules – whether new grounds of application capable of elevating applicant’s application in a case to set aside interlocutory order as exceptional such that it would be in the interest of justice to set aside dismissal of application – application refused. |
| Legislation: Federal Magistrate Court Rules rule 44.12 |
| SZSLO v Minister for Immigration and Citizenship & Anor [2013] FMCA 201; WATI V Minister for Immigration and Multicultural Affairs and Another (1997) 78 FCR at 550; Dudzinski v Centrelink [2003] FCA 308; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 |
| Applicant: | SZSLO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3122 of 2012 |
| Judgment of: | Judge Emmett |
| Hearing date: | 2 May 2013 |
| Date of Last Submission: | 2 May 2013 |
| Delivered at: | Sydney |
| Delivered on: | 2 May 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Young |
| Solicitors for the Applicant: | G & S Law Group |
| Counsel for the Respondent: | Ms Rayment |
| Solicitors for the Respondent: | Sparke Helmore |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3122 of 2012
| SZSLO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is the applicant’s application in a case pursuant to r.16.05 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) that the court set aside orders made on 15 March 2013 dismissing the applicant’s application for judicial review of a decision of the Refugee Review Tribunal pursuant to r.44.12 of the Rules.
The application in a case centres on the new grounds of review identified by the applicant in her application in a case. Those grounds are as follows:
“1. The second respondent made the jurisdictional error in that it failed to consider a claim ( or a component integer of a claim) made by the applicant and thereby deprived the applicant of procedural fairness, or alternatively constructively failed to exercise jurisdiction.
Particulars
a) The applicant made a discreet and/or identifiable claim that she would be prosecuted in Nepal as “Alakshini” [‘a husband eater’] meaning a witch who would be considered to have taken her husband’s life because he died at a young age.
b) The second respondent considered only the position of widows generally and not widows whose husbands died young and for whose death the widow could be blamed by reason of her husband dying at a young age.
2. The second respondent made jurisdictional error in that it did not consider the applicant’s claims in relation to membership of a particular social group.”
The application is opposed by the Minister on the basis that on 15 March 2013, the Court considered the ground of the applicant’s application for judicial review and gave reasons at that time, following submissions by the applicant who was invited to say whatever she wished in support of her complaints about the Tribunal’s decision (See SZSLO v Minister for Immigration and Citizenship & Anor [2013] FMCA 201). Those reasons were as follows:
“1. The first respondent seeks an order that the proceeding before this Court commenced by way of application filed on 24 December 2012 be dismissed pursuant to rule 44.12 of the Federal Magistrates Court Rules 2009 (Cth) on the basis that the application has not raised an arguable case for the relief claimed.
2. The applicant attended this morning’s hearing with the assistance of a Nepalese interpreter and confirmed to the Court that she relied upon her application filed on 24 December 2012 together with her affidavit filed on the same date annexing the Tribunal’s decision record.
3. The ground of the application is as follows:
“1. I fear to go to Nepal. The RRT accepted my claims paragraph 54 of the RRT decision, still the RRT refuse my application without any grounds.”
4. I explained to the applicant that the role of this Court is very different to that of the Tribunal and that it is not for this Court to reconsider her claims and reach different findings or different conclusions. I explained to her that the first respondent was seeking an order that her application be dismissed because the grounds of her application did not disclose an error capable of review by this Court.
5. I explained to the applicant that I would give her an opportunity to identify her complaint about the Tribunal’s decision. The applicant referred to paragraph 54 of the Tribunal’s decision which is as follows:
54. In relation to her own family I am prepared to accept that as a widow and a Christian in combination, her family may be reluctant to socialise with her and may ostracise her. I am also prepared to accept that she will fact social comment. I do not accept however that there would be anything more serious than this. I find that she would be able to convert, would be able to attend church and to publically state that she is a Christian.
6. I understood the applicant’s complaint to be that she did not understand why the Tribunal rejected her claims, having accepted that she is a widowed Christian who may face ostracism and social comment. However, the adverse finding in that paragraph for the applicant is that the Tribunal did not accept that such harm is serious. That finding would appear to be open to the Tribunal.
7. The applicant’s complaint about that paragraph appears to cavil with the findings of the Tribunal. Such a complaint invites merits review which this Court cannot undertake. Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [195] per Gummow and Hayne JJ; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24 at 40-42 per Mason J
8. I asked the applicant if there was any other complaint that she had about the Tribunal decision or anything else that she wished to say in support of her application. The applicant said that the Tribunal did not understand the gravity of her problem.
9. The applicant’s complaints do not raise an arguable case for the relief claimed.
10. In the circumstances, the proceeding before the Court, commenced by way of application filed on 24 December 2012, is dismissed pursuant to rule 44.12 of the Federal Magistrates Court Rules 2009 (Cth) with costs.”
The applicant was represented by Mr Young, of counsel, this morning. Mr Young submitted that the Tribunal failed to consider a claim that squarely arose on the evidence and material before the Tribunal. That claim is that the applicant feared harm in Nepal from society generally as a member of a particular social group of widows of husbands who died young.
The applicant was represented by a migration agent throughout the process of her application for a protection visa. The applicant’s claims in support of the visa application as prepared by her migration agent in a submission, dated 29 August 2011, commenced with a claim that the applicant feared harm as a Hindu widow who may be socially ostracised and abandoned by family and society because of cultural tradition that stigmatise such widows.
In her visa application, the applicant stated that if she was to return to Nepal, she feared she would be mistreated by her family and society. She stated that she had already been blamed for the misfortune and that she would face abuse and cultural boycott because it is very difficult to survive as a widow in her society. The applicant stated that she feared harm from family members and society because she has been blamed for her husband’s short life and is thought to be a witch who took his life.
In a further statement received by the Department on 29 August 2011, the applicant stated that after her husband’s death his family members and relatives called her a “husband eater” and that she would be ostracised by society. In a submission to the Department in support of her application the applicant’s migration agent provided country information relating to treatment of widows in Nepal.
On 5 December 2012, a delegate of the Refugee Review Tribunal refused the Applicant’s application for a protection visa. The delegate accepted that as a widow in Nepal the applicant may be ostracised by her family and be discriminated against by conservative elements of the broader Nepalese society. However, the delegate noted that the applicant had not offered any meaningful evidence to support her claim that her late husband’s family would kill her if they found her in Nepal. The delegate was not satisfied that the applicant has a realistic understanding of the positive changes to circumstances faced by widows in Nepal and recent improvements. The delegate also found that the applicant could relocate and that it was reasonably practicable for her to do so.
Thereafter, the applicant sought review of the delegate’s decision by way of an application lodged on 23 May 2012 with the refugee Review Tribunal. The applicant provided a further statement, dated 27 September 2012, in support of that application for review, in which she stated that she came from Nepal, the widows are still treated very badly in Nepal, her in-laws felt that she had eaten away her late husband and widows are considered as a curse and bad omen and cannot work like normal people do.
In a submission by her migration agent, dated 10 October 2012, the applicant’s migration agent stated again that they were instructed that the applicant would be ostracised by her parents-in-law and society as a whole and that she fears to return to Nepal because she is considered a husband eater by her society and will be deprived of her rights, will lose dignity and be discriminated against and forced to live as an unwarranted member of her society.
The migration agent attached further documents in support of the applicant’s application including a letter from the applicant, dated 8 October 2012, in which the applicant stated that she feared to go back to Nepal, that her in-laws would torture her physically and mentally; that she is a widow and widows in Nepal are treated very badly, again due to old customs and traditions. The applicant stated again that her in-laws felt that she had eaten away her late husband.
In the Claims and Evidence section of its decision, the Tribunal referred to the applicant’s claims to be a witch and to be seen to be responsible for taking her husband’s life. The Tribunal referred to her claims that following her husband’s death, his relatives had called her a husband-eater and that she would be considered as untouchable. The Tribunal summarised various exchanges it had with the applicant about her claims and noted matters of concern that it put to her for comment.
Ultimately, the Tribunal did not accept the applicant’s claims as truthful and found the applicant not to be a credible witness. The Tribunal found that she had exaggerated significant aspects of her claims to enhance her claims for protection. However, the Tribunal did accept that the applicant is a widow and is a Christian and that she has a subjective fear of harm in Nepal as a widow.
The Tribunal also accepted that widows in Nepal are discriminated against and that life is difficult for them following the death of their husbands. The Tribunal also accepted that some people may consider that widows have been responsible for their husband’s death in some way which could result in social ostracism in some form. The Tribunal did not accept that there would be any further harm or consequence from the applicant’s husband’s family towards the applicant.
The Tribunal did not accept the applicant’s claims that the marriage was not supported by her late husband’s family. The Tribunal accepted that she may face social comment, but was not satisfied that there was anything more serious than that.
The Tribunal’s findings would appear to be open to the Tribunal on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the RRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
The solicitor for the first respondent, Ms Rayment, referred the court to two authorities relating to the caution with which the court should approach an application to set aside an interlocutory order once entered.
Those cases are WATI V Minister for Immigration and Multicultural Affairs and Another (1997) 78 FCR at 550 and Dudzinski v Centrelink [2003] FCA 308 (“Dudzinski”). I note particularly the statement of Spender J in Dudzinski at [11] that an application to set aside an interlocutory order is not an alternative to the appellate procedure in respect of interlocutory judgments and that it is only in exceptional circumstances that an order once entered should be set aside. There is sound public interest in such an approach by the courts in maintaining finality of litigation. The orders in this case were entered on 22 March 2013.
Mr Young contends that the Tribunal’s failure to consider the applicant’s claim to be a member of a particular social group identified above in these reasons is sufficient to satisfy the court that exceptional circumstances exist such that the court should set aside the orders that it made on 15 March 2013.
The applicant in this case has had the assistance of a migration agent throughout the conduct of her application for a protection visa. The orders made by this court on 15 March 2013 were interlocutory and were made in circumstances where the applicant was given an opportunity to be heard to identify for the court the claims upon which he relied in establishing jurisdictional error on the part of the Tribunal.
The applicant filed her application for judicial review on 24 December 2012. The first respondent filed a response on 14 January 2013 stating that the applicant’s application did not demonstrate any arguable case and referred to r.44.12 of the Rules. The first court date of the matter was not until 15 March 2013, some two months following receipt by the applicants of the response filed by the first respondent.
In light of the conduct of the applicant’s case by the applicant, her access to advice during the process of her refugee visa application, her opportunity for advice following the filing of her application for judicial review in this court and the opportunity to be heard given to the applicant by the court on the last occasion, I am not satisfied that the complaints now made to the court in respect of the Tribunal’s decision have sufficient prospects of success such that the applicant’s circumstances should be regarded as exceptional.
There is a legitimate public interest in the finality of administrative decisions and finding a better case to be put at a later date is not sufficient. In Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at 495-6, McHugh J makes clear that one must consider the public interest in there being efficacy in public acts, decisions and judgments which cannot be allowed to become “hostage of an applicant’s search for favourable legal advice”.
In the circumstances, the application in a case should be dismissed with costs.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 15 May 2013
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