SZTUR v Minister for Immigration
[2016] FCCA 2529
•17 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTUR v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2529 |
| Catchwords: ADMINISTRATIVE LAW – Application to reinstate proceedings summarily dismissed for non-attendance – relevant considerations. |
| Legislation: Migration Act 1958, ss.36, 474 Federal Circuit Court Rules 2001, rr.13.03C, 16.05 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZTUR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 157 of 2014 |
| Judgment of: | Judge Cameron |
| Hearing date: | 17 August 2016 |
| Date of Last Submission: | 17 August 2016 |
| Delivered at: | Sydney |
| Delivered on: | 17 August 2016 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms C. Hillary of DLA Piper Australia |
ORDERS
The applicant’s application in a case filed on 14 June 2016 be dismissed.
The applicant pay the first respondent’s costs of and incidental to that application in a case fixed in the amount of $2,600.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 157 of 2014
| SZTUR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The applicant commenced proceedings in this Court by an application filed on 22 January 2014 in which she sought judicial review of a decision made by the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, affirming a decision made by a delegate of the first respondent (“Minister”) to refuse her a visa.
The applicant’s application was listed for its first court date on 24 February 2014. The applicant appeared in court on that day, at which time the matter was listed for callover on 26 June 2014. The applicant also attended the callover, at which time the matter was listed for hearing on 18 August 2015.
On 27 April 2015 the Court wrote to the applicant at her address initially advised to the Court and advised her that the hearing date had been changed to 10 June 2015. There was no appearance by the applicant on that occasion and the matter was stood over to 16 June 2015. Again, there was no appearance by the applicant and on the application of the Minister the proceeding was dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (“Rules”).
These reasons concern an application in a case filed by the applicant pursuant to r.16.05 of the Rules seeking to set aside the orders made by this Court on 16 June 2015 on the basis that those orders were made in her absence.
In deciding whether to grant the present application, consideration must be given to whether the applicant’s explanation for her non-attendance on 16 June 2015 is a satisfactory one and whether, nevertheless, she has reasonable prospects of success in demonstrating jurisdictional error on the Tribunal’s part. It is to be noted that in his written submissions, the Minister indicated that he would not allege that he would suffer prejudice were the matter to be reinstated.
SATISFACTORY EXPLANATION
Turning first to whether the applicant has provided a satisfactory explanation for her non-attendance, in her affidavit in support of the present application in a case affirmed on 9 June 2016 the applicant relevantly deposed as follows:
I failed to attend the hearing scheduled in June 2015 … because I did not receive any letter from the court for a hearing which was re-scheduled at a later date which I didn’t know after I had moved to other place and forgot to advise the court of my new address
The applicant was cross-examined on that affidavit and also questioned by the Court on an apparent inconsistency. The inconsistency was that on 11 June 2015 the Court wrote by express post to the applicant at her then-new and current address, advising her of the 16 June 2015 hearing date. The Minister’s solicitors also wrote to the applicant at that address on that date, advising her of the new hearing date. In her oral evidence the applicant conceded that she was living at the address in question on the date the letters were sent.
The applicant’s submission and evidence was that she did not receive either of the letters of 11 June 2015. When, at the hearing, the applicant’s explanation of her claim to not have received written advice of the new hearing date was shown not to be plausible, the fundamental position she pressed was that she simply had not received either letter. On balance, however, I find that the two letters were, notwithstanding the applicant’s evidence, received by her. I do not accept the applicant’s evidence that she did not receive at least one of the letters sent on 11 June 2015. It follows from that conclusion that I find the applicant was aware of the hearing date of 16 June 2015 and, for reasons which have not been explained, failed to attend. I find that the applicant has not provided a satisfactory explanation of her failure to attend the hearing on 16 June 2015.
REASONABLE PROSPECTS OF SUCCESS
An application to reinstate a proceeding in the present circumstance would not be granted unless the applicant had reasonable prospects of success on the principal application. In the absence of such prospects, the substantive application would be liable to be dismissed. It should be noted in this regard that in proceedings for judicial review of a Tribunal decision, the Court cannot reconsider the visa application underlying that decision. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error, as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Consequently, an applicant in the present circumstance must demonstrate reasonable prospects of proving that the Tribunal’s decision is affected by jurisdictional error.
Background facts
The applicant is a citizen of Nepal who arrived in Australia on 3 January 2012 on a tourist visa. On 28 March 2012 she lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that she feared persecution in Nepal because of her political opinion and her abusive relationship with a particular man. On 10 October 2012 the applicant’s application was refused by a delegate of the Minister. The applicant then applied to the Tribunal for a review of that departmental decision. She was unsuccessful before the Tribunal and, as indicated earlier in these reasons, applied to this Court on 22 January 2014 for judicial review of the Tribunal’s decision.
In its decision the Tribunal summarised the facts alleged in support of the applicant’s claim for a protection visa. The applicant claimed that she feared that she would face harm in Nepal from the Maoists and her former partner. As summarised by the Tribunal, she relevantly made the following claims in her protection visa application:
a)in September 2007, while in college, she became involved with the Nepali Students Union and in March 2009 she joined the Nepali Congress Party and became interested in pursuing a political career. The Maoists had asked her to give up her membership of the Nepali Congress Party and when she refused they threatened to harm her; and
b)in 2011 she fell in love with a businessman from Kathmandu but later discovered he was married and had children. When she tried to end the relationship he deprived her of her freedom, threatened to kill her and used her as a sex slave. She had tried to escape and had also reported him to the police but after taking a statement the police did not pursue the matter.
As summarised by the Tribunal, at her interview with the delegate the applicant claimed that she had reported her partner to the police two or three days after he threatened her and also that he sometimes locked her in a room. She also claimed that she had not told her family about her partner’s abuse because he had been married and from a different caste. The applicant claimed that her partner had allowed her to leave the house to arrange a visa for Australia as she had convinced him that she would obey him and that she wanted to travel to Australia for only a few months.
The applicant made the following additional claims at a Tribunal hearing on 18 November 2013:
a)her interest in politics began in 2009 when she was in school. She joined the students union and attended meetings and rallies. While in college she joined the Nepali Congress Party and was accepted because she had an interest in politics. She had talked to her friends about the party so they could join and attended rallies;
b)although she was interested in politics, she studied fashion in college because there were no political courses in Nepal;
c)six months after joining the Nepali Students Union and while she was in college, about eight members of the Maoist party told her to join the Maoists and threatened her life if she did not. They asked her to join them because they opposed the Nepali Congress Party and targeted all of its active members. She was approached three or four times;
d)she reported the incidents to the Congress chairman but he told her not to worry because threats were a part of politics and so she did not go to the police;
e)she had joined the Congress Party in Australia about seven or eight months after her arrival and had attended four or five meetings;
f)she met her partner when he interviewed her for a job and while she was still studying at the fashion college. She began living with him but in November 2011 found out that he was married and so tried to leave him. He threatened her and she did not leave and return to her family because he would have harmed them;
g)two or three days after her partner threatened her she went to the police. They took her statement but did nothing because her partner was a rich man;
h)a week after she found out he was married, her partner locked her in a room for three months and she could not attend work or college. She could not contact anyone because she did not have a mobile telephone. Her partner had let people know that they were living together and so her conservative parents had been angry and had not visited her;
i)she had started behaving “nicely” towards her partner and he allowed her limited use of the home telephone. She was able to telephone her sister in Australia and make arrangements to travel to Australia. She had not telephoned her family in Nepal because they had been angry with her for living with a man from a different caste;
j)because she behaved “nicely”, her partner also said she could have whatever she wanted and she told him she wanted to visit her sister in Australia and would return to Nepal. She had gone with him to collect the airline ticket which her sister had arranged. Her partner had also allowed her to leave because she had told him she was pregnant;
k)although her visa was issued in September 2011, she stayed in Nepal until January 2012 because her partner had wanted her to leave after they celebrated the New Year together; and
l)she feared her partner would harm her if she returned because she had lied to him about returning to Nepal after a few months. She could not live with her parents and if she relocated her partner would follow her.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act.
The Tribunal was not satisfied that the applicant faced a real chance of serious harm or a real risk of significant harm from the Maoists in Nepal. In that connection:
a)while accepting that the applicant had been involved with the Nepali Students Union while in school and at fashion college, the Tribunal did not accept that she had had a significant role in that union because she could not recall specific details about the rallies she said she had attended. The Tribunal was of the view that if the applicant had had a significant or leading role in the union she would have been able to recall more details about the activities which took place and the issues which were discussed;
b)despite some concerns about the applicant’s evidence, the Tribunal accepted that she had joined the Nepali Congress Party. However, given her limited knowledge of Nepali political affairs and her inability to recall specific details about the activities in which she had been involved, the Tribunal was not satisfied that she had had anything but a very minor role. In that regard the Tribunal found that the applicant’s knowledge of Nepali politics was very basic and it did not accept that she could not have found a course more closely aligned with politics than fashion even if there were no political courses in Nepal;
c)while accepting that the applicant had been approached and threatened by Maoists, the Tribunal was not satisfied that the applicant had a genuine fear of serious harm from the Maoists. In that regard it noted that her evidence was that she had not reported the matter to the police because her Congress chairman had told her that threats were a part of political life and that she should not worry. It also noted that she gave evidence that Maoists targeted all active members of the Nepali Congress Party for recruitment; and
d)the Tribunal found that apart from verbal threats, the applicant had not been harmed by the Maoists in the past or contacted by them after their initial recruitment drive and concluded that there was nothing to indicate that the Maoists had any ongoing interest in her or would have such an interest if she returned to Nepal.
The Tribunal accepted that the applicant had been in a relationship with one of her employers. However, it did not accept that the applicant’s partner had harmed her in any way and was of the view that she had voluntarily stayed with him until she left Nepal, including staying with him to celebrate the New Year after her visa was granted. It also did not accept that she had had no contact with her family and friends or that she had gone to the police. In that connection the Tribunal:
a)did not accept that the applicant had been locked in a room from November 2011, or an earlier date, as she claimed. It found that the applicant’s evidence about being locked in a room by her partner was vague and contradictory and indicated that she had not been telling the truth. It noted that while claiming that she had been attending fashion college until she came to Australia in January 2012, the applicant also claimed that from November 2011, when she found out her partner was married, she was locked in a room for three months and had been unable to work or attend college. Further, her visa had been granted in September 2011 indicating that she had applied for her visa before she allegedly found out her partner was married;
b)did not accept that the applicant could have been locked in a room for three months without anyone worrying about her, enquiring or searching for her. The Tribunal did not accept that the applicant’s family and friends, even if disappointed that she had been in a relationship with a married man from another caste, would not have tried to find her and assist her if she had been kidnapped and abused as she claimed;
c)noted that the applicant had not included in her statement accompanying her protection visa application her claim to have been locked in a room for three months and at her departmental hearing said she had been locked in the room sometimes. While accepting that the applicant may have been depressed and nervous when making her statement and at her departmental interview, the Tribunal noted that she had been able to recount many other facts and did not accept that she would have omitted such a key aspect of her claims. It formed the view that she had fabricated that aspect of her claims in order to bolster her claims generally;
d)noted that although the applicant claimed that she had had no mobile phone while locked in the room, she also claimed to have arranged a visa with the assistance of her sister in Australia. It did not accept her evidence that her partner had placed a lock on the phone and only allowed her to use it for her visa application, finding that if she had been allowed to use the phone and leave the house she could have taken the opportunity to get help from her family, friends or the police. The Tribunal also did not accept that her partner, if he was the kind of man who locked her up for three months and forced her to be a sex slave, would have allowed her to travel to Australia on her own;
e)noted that the applicant had been granted a visa to travel to Australia on 8 September 2011 but left Nepal on 3 January 2012. It did not accept that she would not have left at the earliest opportunity if she had had a genuine fear of her partner; and
f)did not accept that the applicant’s parents had disowned her or that she could not have asked them for help if she had needed it. In that regard, it noted that she had given inconsistent evidence, claiming at her departmental interview that she had been afraid to tell her family about her mistreatment because she had been afraid that they might dislike her because her partner was married and from a different caste and then later claiming at the Tribunal hearing that her family had disowned her because her partner had spread a rumour that she was in a relationship with a married man. The Tribunal also noted that country information indicated that inter-caste marriages were becoming more accepted and common in Kathmandu.
Proceedings in this Court
In the application commencing these proceedings the applicant alleged:
1.I am a citizen of Nepal and I am a genuine refugee because I have a well-founded fear of persecution for reasons of my political opinion and membership of a particular social group. I believe that the decision in my case has involved an error of law.
2.I argue that the use of evidence and information by the Refugee Review Tribunal Member is illogical in considering the circumstances of my safety in Nepal. I told the truth that the Maoists harassed me on many occasions and they also threatened to harm me if I continued to support the Nepali Congress Party and deny supporting and joining the Maoists. The Tribunal member was assuming the same level of political knowledge, and procedural systems that people enjoyed in Australia was found in a country of Nepal’s third world status. I was fortunate to be unharmed by the Maoists when I remained in Nepal so it can’t be said that I was not of any adverse interest to the the Maoists. I was chaos about my life as I had to face a serious harm by the Maoists any time and on the other hand, I was chased by my boyfriend who had lured me into relationship.
3.I was forced to become a sex slave by [former partner] who lured me into a relationship and I was not allowed to travel on my own because I was controlled by him. As a woman, I was unable to protect or defend myself in a male-dominated Nepalese society. I had run out of the ideas to seek the assistance from the police to leave the man who had made me a sex slave in his control. I was only able to come out of the room after I pretended that I was pregnant after three months living with his in his control. My situation for my safety in Nepal be viewed like in Australia is an irrelevant consideration, and taking an irrelevant consideration into account to cast a shadow on my credibility is not fair.
4.I do not agree with the purported decision of the Tribunal because I have been given no procedural fairness and natural justice in my case.
Ground 1
The first element of the first ground of the application concerned the applicant’s claim based on her political opinion. As the preceding summary of the Tribunal’s decision record discloses, the Tribunal was aware of the applicant’s claims regarding her political opinion and the consequences of that and took them into account in deciding the review before it.
The second element of the first ground of the application concerned the applicant’s claim to membership of a particular social group. The applicant did not press a claim to fear persecution by reason of her membership of a particular social group when presenting her case to the Tribunal. Moreover, at the hearing of this application, the applicant did not identify the group of which she now claims to have been a member at the relevant time or times.
The third element of the first ground of the application was that the Tribunal’s decision involved an error of law. However, notwithstanding the terms in which it was put, in substance, the first ground of the application was really an invitation to undertake impermissible merits review. To the extent that the applicant alleged that the Tribunal’s decision was affected by an error of law in relation to the issue of her political opinion and the purported issue of her membership of a particular social group, for the reasons I have given, no error of law is disclosed.
Ground 2
In the second ground of the application, the applicant alleged that the Tribunal’s findings on her claim to fear persecution were illogical but, in other respects, the ground was no more than a further invitation to undertake impermissible merits review.
To the extent that the second ground alleged illogicality, it should be noted that the Tribunal found that the applicant had been involved in politics but:
a)had limited relevant knowledge and recollection;
b)had behaved in a fashion inconsistent with a subjective fear of persecution; and
c)had not been contacted or harmed by the Maoists since their initial recruitment drive.
Those findings were open on the evidence and it was not illogical in the circumstances for the Tribunal to conclude that the applicant did not have a well-founded fear of persecution by reason of her political opinion.
Ground 3
In the third ground of the application, the applicant appeared to allege that the circumstances of her relationship with her Nepalese partner were misunderstood by the Tribunal and thus its appreciation of them was incorrect and amounted to an irrelevant consideration.
Significantly, however, the applicant’s claim to fear harm at the hands of her former partner was rejected on the facts because of lack of detail, inconsistencies in the applicant’s account, the implausibility of some of her claims and the Tribunal’s concerns about recent invention. Those intermediate findings of fact were open to the Tribunal and did not reflect irrelevant considerations being taken into account. The Tribunal’s finding on the credibility of the applicant’s factual account concerning her former partner was open to it and so not affected by jurisdictional error.
Ground 4
In the fourth and final ground of the application the applicant alleged that she had been denied procedural fairness. This allegation was not particularised and so lacks meaningful substance.
Submissions at hearing
At the hearing of the present application, the applicant argued that the Tribunal had not looked at her case properly, that its decision was not relevant to her and that she did not like the Tribunal’s decision. She also said that she was not satisfied with the Tribunal’s decision. Each of those matters invited the Court to engage in impermissible merits review.
Generally
None of the matters which the applicant has identified indicates that her substantive application to set aside the Tribunal’s decision would have reasonable prospects of success were it to be prosecuted.
CONCLUSION
Because the applicant has not provided a satisfactory explanation for her failure to attend court on 16 June 2015 and has not identified a case of jurisdictional error on the Tribunal’s part with reasonable prospects of success, her application to set aside the orders made on 16 June 2015 will be dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Date: 29 September 2016
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