SZUTL v Minister for Immigration

[2015] FCCA 1370

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUTL v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1370

Catchwords:
MIGRATION– Persecution – review of Refugee Review Tribunal decision – visa – protection visa – validity of visa application – refusal.

ADMINISTRATIVE LAW – Application for an extension of time to bring proceeding – delay insignificant – allegation that Tribunal’s decision affected by jurisdictional error by reason that it failed to address an integer of the applicant’s Convention-related claims, denied the applicant procedural fairness and failed to consider an integer of the applicant’s complementary protection claims – no jurisdictional error – futile to extend time to bring proceedings.

Legislation:

Migration Act 1958 (Cth), ss.36, 91R, 425, 430, 476, 477

Applicant: SZUTL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2000 of 2014

Judgment of: Judge Smith

Hearing date: 19 March 2015

Date of Last Submission: 19 March 2015

Delivered at: Sydney

Delivered on: 19 March 2015

REPRESENTATION

Counsel for the Applicant: Mr A. Kumar

Counsel for the First Respondent: Mr D. Hughes

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

2. The applicant to pay the first respondent’s costs fixed in the amount of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2000 of 2014

SZUTL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore & Revised)

1. This is an application for an order under s.477(2) of the Migration Act 1958 (“Act”) extending the period within which to bring an application under s.476 of the Act in relation a decision of the Refugee Review Tribunal (“Tribunal”) dated 11 June 2014.

2. The date of the decision was the date of the written statement of the decision, namely 11 June 2014. That means that any application under s.476 of the Act was required to have been made by 16 July 2014. No application was made by that date. This application was filed on the following day, 17 July 2014.

Extension of Time

1. This Court has power under s.477(2) of the Act to extend the 35 period as it considers appropriate if:

   a)an application for that order has been made in writing to the Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   b)the Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

2. In these proceedings it is not in issue that the first of these conditions has been satisfied. The issue is whether the second condition is met.

3. It is not in issue that the relevant considerations in determining whether or not it is necessary in the interests of the administration of justice to extend the period include whether or not there has been a reasonable explanation for the delay, the extent of the delay, whether there is a sufficiently arguable ground on the review to extend the period, and whether or not there has been any prejudice to the respondent.

4. In her application, as amended on 2 February 2015, the applicant relies on the following matters in support of her submission that it is necessary in the interests of the administration of justice to make an order under s.477(2):

   1.The Tribunal’s decision is dated 11 June 2014 and the notification is dated 12 June 2014 and the proceeding was filed in this Court on 17 July 2014. The Application is filed within 35 days of the RRT’s’ notification letter.

   2.Legal representation was being sought. The Applicant did not understand any impact of short delay.

   3.The delay is by one day and is minimal and is not that excessive in all circumstances and readily explainable.

   4.The Applicant would be denied of right to subsist where [sic] the Applicant denied the right to pursue his application and return to his country of nationality. The application is on merit.

   5.There is no prejudice to third party including the respondents.

   6.In all circumstances that it is in the interests of justice that the time of filing be extended.

5. In her affidavit in support of the application the applicant deposes that she received the Tribunal’s decision on 14 June 2014 and then began to approach lawyers to assist her to prepare the application for review to this Court. She says that she could not find a lawyer who was available to take her case and decided to file the application for review and then continue looking for a lawyer.

6. The applicant also says in her affidavit that she was told at the Federal Court registry one week before lodging her application that the 35^th day fell on 17 July 2014.

7. The Minister made no submission on the question of delay and did not dispute any of the applicant’s evidence in that respect. Rather, his opposition to the application was based solely on the argument that the application itself, if the time were extended for its filing, was wholly without merit.

8. In my view, there is no question that the delay was insignificant, and as the applicant was unrepresented, there was a reasonable excuse for her failing to lodge within time. I have taken those matters into account.  That said, it is necessary to consider the prospects of the grounds proposed to be raised by the applicant in her amended application.  While the insignificance of the delay means that those prospects need not be great, in my view, there needs to be some prospect in order to grant an extension of time. It would not be necessary in the interests of the administration of justice to grant an extension of time in order to make an application when that application was bound to fail. 

9. The amended application contains three grounds which are:

   1.The Tribunal fell into error in failing to address whether the harm from potential ostracisation of the Applicant (CB 100 at [44], [46], CB 101 at [50]) could amount to serious harm for purposes of Convention [or complementary protection; this latter aspect not being considered] as defined in s 5 and s 91R of the Act in making its assessment that there would be no real chance of persecution.

   Particulars

   1.1The Tribunal accepted that the Applicant was Fiji Indian/Christian married to a Muslim man;

   1.2The Tribunal failed to address the Applicant’s ability to subsist in Fiji on the basis of interfaith marriage.

   1.3The Tribunal thereby committed jurisdictional error

   2.The Tribunal fell into error when it denied Applicant procedural fairness on a determinative issue and/or failed to take into account all the relevant considerations and individually and cumulatively in making its assessment that there was no real chance of persecution.

   Particulars

   a.The Tribunal accepted that the Applicant was Fiji Indian/Christian married to a Muslim man;

   b.The Tribunal rejected that there would be ostracisation of the Applicant in Fiji on the basis it did not have country information before it (being a determinative issue);

   c.The Tribunal failed to allow applicant opportunity to address this claim denying applicant procedural fairness;

   d.The Tribunal fell into error in its determination as has failed to assess the claims cumulatively.

   e.The Tribunal thereby committed jurisdictional error.

   3.The Tribunal erred in considering complementary protection.

   Particulars

   3.1The Tribunal fell into error in failing into account non-Convention grounds as basis of attack on the Applicant.

   3.2     The Tribunal erred in failing to consider the community’s attitude / hostility in the ability to subsist and thereby fell into error.

10. Mr Kumar, who appeared for the applicant, certified that there were reasonable grounds for believing that the grounds set out above had a reasonable prospect of success. I disagree. Indeed, in my view the grounds raised in the application have very little prospect of success. The reasons for my conclusion are as follows.

11. The applicant is a citizen of Fiji who arrived in Australia on Christmas Eve in 1999 as a nine-year-old child. It appears that she arrived with her parents as a visitor and has never had a substantive visa. In 2000 the applicant’s parents made an application for a protection visa and included the applicant in the application as a dependent upon them. That application was unsuccessful.

12. On 25 February 2013 the applicant lodged her own protection visa claiming that she feared harm from her fathers, sisters and brother, and her mother’s mother and her siblings because she had married a Muslim man without getting permission from them.

13. In support of her application she sent the Department of Immigration a report from a Lisa Laba-Sarkis (who, it might be noted, bore the same surname as the applicant’s authorised representative and the person who appears to have paid the filing fee for the visa application). Ms Laba-Sarkis reported that the applicant had told her that the applicant had suffered family violence by her parents and siblings and that she felt that she had been shamed in her community here and in Australia and also in her home country Fiji through her mother’s gossip and spreading bad words about her. Ms Laba-Sarkis then gave certain recommendations about psychological treatment and suggested that was in the applicant’s best interests to remain in Australia.

14. On 10 September 2013 a delegate of the first respondent (“Minister”) made a decision to refuse to grant the applicant a protection visa. The applicant applied to the Tribunal for review of that decision.

15. The applicant gave evidence at a hearing held by the Tribunal on 5 May 2014.  The applicant's husband and a pastor from the applicant's local church also gave evidence.  Subject to ground 2 in the amended application, no complaint is made in these proceedings about the conduct of that hearing.

16. In a letter dated 14 May 2014 addressed to the Tribunal, the applicant made further submissions about her credibility, asserting that she had never made anything up or exaggerated the reality of her claims. In addition, the applicant sent the Tribunal a number of documents relating to the date upon which her employer commenced business, and also her membership of the Life Church, Parramatta.  The Tribunal made its decision on 11 June 2014 affirming the decision of the delegate. 

17. On 11 June 2014 the Tribunal made a decision to affirm the decision of the delegate.

18. The Tribunal dealt with the application before it on the basis that there were four issues to be considered: first, whether the applicant had a right to enter and reside in Pakistan; secondly, was the applicant credible as to her claims; thirdly, did the applicant have a well-founded fear of persecution in relation to Fiji and meet the protection obligations under the refugees convention; and fourthly, whether she met the protection obligations under the complementary protection provisions of the Act. The first of these issues arose because the applicant was married to a citizen of Pakistan. The Tribunal resolved that question in her favour and, not being an issue in that these proceedings need be considered the further.

19. In respect of the second issue, the Tribunal accepted a number of matters claimed by the applicant. These included that she was a Christian and the eldest of four siblings, that her mother had eloped with her father without her mother’s consent, that the applicant had married a Muslim and her family did not consent to the relationship and tried to prevent her from seeing him for approximately one year from 2010 to 2011. It accepted that the applicant had not seen her family since August 2011 when there was a fight between her and her brother, and that she has been isolated from them since that time, although she had tried to contact them. It accepted her evidence to the effect that she had not had contact with nor been contacted or threatened by her family in Fiji because of her marriage and the fact that her family did not consent to it. Finally, it accepted that the applicant had not been to Fiji since she was nine years old, and that it would be very difficult and different from living in Australia, and that her husband would travel to Fiji with her.

20. On the other hand, the Tribunal found that the applicant had exaggerated and had not been truthful about the extent of the difficulties that she had faced with her family prior to August 2011 and did not accept that her family in Australia had wanted to harm her since that time, and that her family had contact with her family in Fiji and told them of the applicant, so shaming the family.

21. While the Tribunal accepted that the applicant’s parents and family in Australia have disowned her and did not want to have contact with her it did not accept that there was any evidence that they wanted to overtly and directly harm her.

22. In light of those findings, the Tribunal turned to the third issue. In that respect it did not accept that there was a real chance that the applicant would face the difficulties she claimed, namely harm from her family in Fiji, the community and the government. It rejected the possibility that she would suffer violence at the hands of family, the community or government in light of her interfaith marriage and while accepted that the applicant may be ignored and disowned in Fiji in a manner similar to the situation in Australia, it found that that did not reach the level of serious harm in sub-s.91R(1)(b) of the Act. Similarly, it was not satisfied that even if the applicant’s neighbours, the government, or the community became aware of her interfaith marriage without the consent of the family that there was a real chance that she was faced serious harm from those groups either individually or cumulatively were she returned Fiji.

23. The Tribunal also found that while the move to Fiji would be difficult for her, the husband would travel to Fiji with her and support her, and in light of that, and the fact that she speaks fluent English and has finished a number of levels of education, and her husband was in possession of an IT Diploma, the difficulties she might face would not amount to serious harm.

24. For those reasons the Tribunal was not satisfied that the applicant had a well-founded fear of persecution arising from one or more of the five Convention reasons if she returned to Fiji.

25. Finally, the Tribunal turned to the issue of complementary protection. In this respect, the Tribunal found that any of the difficulties that she claimed she would face in Fiji did not meet the level of a real chance of serious harm and therefore considered that she did not meet the criteria in sub-s.36(2)(aa) of the Act. That conclusion was based upon the Tribunal’s assessment of the applicant’s credibility as outlined above in addition to the lack of independent information to support her claims and the reasoning set out by the Tribunal in connection with the criterion in sub-s.36(2)(a).

26. For those reasons the Tribunal found that the applicant did not satisfy the criteria for the grant of a protection visa and affirmed the decision of the delegate.

Consideration

Ground 1

1. The first ground of the amended application is, in essence, that the Tribunal fell into error by failing to address whether the harm from potential ostracisation of the applicant in Fiji could amount to serious harm for the purposes of the Convention.  That ground is entirely without merit.

2. As noted above, the Tribunal accepted, at [49], that the applicant may be ignored and disowned in a manner similar to the situation in Australia, but found that it would not amount to serious harm within the meaning of the Act. In light of that finding, an essential premise of the argument is wrong and the ground is bound to fail.

3. Mr Hughes, who appeared for the Minister, also argued that the ground should fail because the applicant never argued or claimed that she would be persecuted solely for the reason of her interfaith marriage.  I accept that submission, and on the material before me it is clear that that was the case.  Nevertheless, whether that be the case or not, it is clear that the Tribunal dealt with any claim that arose out of that broader Convention reason or the narrow reason being interfaith marriage. At [51] of the Tribunal’s reasons it said:

   [51]Therefore I am unable to be satisfied on the basis of the independent evidence before me or lack of it and other matters raised above that there is a real chance that her family, community or the government will want to harm her because she is a Christian who married a Muslim man and/or because the union does not have the consent of her family in Australia and/or because she has shamed her family.

Ground 2

1. The second ground is a denial of procedural fairness.  The applicant’s written submissions do not do much to clarify the ground, and in oral submissions Mr Kumar simply said that the applicant was not given the opportunity to address the issue that there was a lack of country information concerning the attitudes of the community in Fiji.

2. The relevant opportunity that the Tribunal is required to give to an applicant on review is to attend a hearing to give evidence about and to present arguments on issues that arise in the review: s.425 of the Act.

3. While there was no transcript of the hearing before the Court, the statement of reasons prepared by the Tribunal pursuant to s.430(1), of the Act makes it clear that the Tribunal raised with the applicant the lack of country information concerning violence at the hands of families, the community, or government in Fiji: see [48] of the Tribunal’s reasons.

4. Further, at the hearing the Tribunal gave the applicant an opportunity to provide further information after the hearing in support of her claims, and indeed, in a letter dated 14 May 2014, the applicant took that opportunity.  For all of those reasons, this ground has no merit and is bound to fail.

Ground 3

1. The third ground proposed to be raised by the applicant concerns the way in which the Tribunal dealt with the complementary protection criteria.  It is asserted that the Tribunal erred in failing to consider the community’s attitude/hostility in respect of the applicant's ability to subsist.  The applicant's written submissions that express this ground are rather discursive that it may be distilled into the proposition that the Tribunal only focused upon the attitude of the applicant's family in Fiji when determining what harm might come to her.  This ground too must fail. 

2. The Tribunal stated at [57]:

   Having regard to my findings above as to the credibility of the applicant’s claims, and based on the lack of independent information to support her claims and based on the similar reasoning outlined above where I have found above the difficulties she claims she will face does not meet the level of a real chance of serious harm, it follows I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that she will suffer significant harm, as defined in subsection 36(2A)) of the Act from her family in Fiji, the community and the government or anyone else because of her marriage as a Christian to a Muslim man without the consent of her family which has bought shame on the family. 

   (Emphasis added)

3. While that sentence may have been more elegantly expressed, it could not have more clearly dealt with the aspect of the applicant's claims that it is now alleged the Tribunal overlooked. 

4. In addition to that, there is on my view nothing in the material that was before the Tribunal that could, even if accepted, have fallen within the definition of “significant harm” within the meaning of s.36(2A) of the Act. Mr Kumar submitted that it was possible for the harm that was claimed by the applicant to fall within the definition of sub-s.36(2A)(d) or (e), namely, that the non-citizen will be subjected to cruel or inhuman treatment or punishment, or the non-citizen will be subjected to degrading treatment or punishment.

1. Both of those subparagraphs are further defined in s.5 of the Act:

   “cruel or inhuman treatment or punishment” means an act or omission by which:

   (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

   (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

   but does not include an act or omission:

   (c)that is not inconsistent with Article 7 of the Covenant; or

   (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   “degrading treatment or punishment” means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

   (a)that is not inconsistent with Article 7 of the Covenant; or

   (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

2. It is clear that, on any view, the extent of the harm claimed by the applicant in this case could not have fallen within any of those definitions.  For that additional reason, in my view, the third ground has no merit and is bound to fail.

Conclusion

1. For those reasons, I conclude that there is no merit in any of the grounds raised by the applicant. In my view, in light of that conclusion, it would be futile to grant an order extending the time within which to make an application under s.476 of the Act.

2. Thus, even though to refuse to make such an order would deprive the applicant of a right that she might otherwise have to appeal from a decision on a substantive application, and even though there appears to be no prejudice to the first respondent or the second respondent by the lateness of the application, or in the granting of an extension of time, I do not consider that it is necessary in the interests of the administration of justice that such an order be made, and for that reason the application must be dismissed. 

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

Associate: 

Date: 27 May 2015