SZWAC v Minister for Immigration

[2016] FCCA 2416

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWAC & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2416

Catchwords:
MIGRATION – Review of former Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming to fear harm in Nepal as a single woman with an illegitimate child – Tribunal finding that the applicant was married and that her husband is registered as the child’s father – whether the Tribunal should have allowed time for DNA evidence considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36, 425

Cases cited:

Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473

Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332

Minister for Immigration v Singh [2014] FCAFC 1; (2014) 231 FCR 437

MZAMP v Minister for Immigration [2016] FCA 804

First Applicant: SZWAC

Second Applicant: SZWAD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 148 of 2015

Judgment of: Judge Driver

Hearing date: 16 September 2016

Delivered at: Sydney

Delivered on: 6 October 2016

REPRESENTATION

Solicitors for the Applicants: Mr M Jones of Parish Patience Immigration Law

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The application as amended on 16 September 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 148 of 2015

SZWAC

First Applicant

SZWAD

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The first applicant (applicant) is from Nepal and the second applicant is her daughter, born in Australia to a Nepalese man.  There is uncertainty about the paternity of the child and the issues in this case concern the proposition that the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal) erred in dealing with that uncertainty. 

2. The following statement of background facts is derived from the submissions of the Minister filed on 8 September 2016.

3. The applicant is a citizen of Nepal who arrived in Australia on 13 January 2009 as the dependant on a student visa. The student visa ceased on 15 March 2011. The second applicant is the daughter of the applicant who was born in Australia in March 2010. On 10 October 2013 the applicant and her daughter applied to the Minister’s Department for the grant of protection visas[1].

   [1] Court Book (CB) 3-40

4. On 28 February 2014, the applicant participated in a protection visa application interview with a delegate of the Minister.  In addition, a number of documents were submitted to the delegate on behalf of the applicants by their migration agent[2].

   [2] CB 53-137

5. In short, the applicant claimed that she had “married” a man, Mr P[3], in Nepal in 2003, and in 2005 commenced living with him before he left her and never returned. The applicant claimed that her “marriage” with Mr P was an inter-caste marriage and not supported by her family. The applicant claimed that following Mr P’s departure, she undertook employment in a “low class” restaurant for minimal wages, before paying an agent Rs 800,000 (approximately AUD9,000) to come to Australia. As part of this arrangement, the applicant claimed that she entered into a “contract marriage” with a Mr S[4], the holder of an Australian student visa, and that she entered Australia in January 2009 as a dependant on Mr S’s visa. Mr S’s student visa was cancelled by the Minister’s Department, and the applicant accompanied Mr S to the Migration Review Tribunal as his wife.  The applicant claimed in her present visa application to have only lived with Mr S for one week.  Approximately six months after arriving in Australia, the applicant claimed that she commenced a relationship with a Mr C[5] and that subsequently she fell pregnant with his child. She gave birth to her daughter in March 2010. The applicant claimed that Mr C did not want to officially acknowledge or accept the child as his own, and that the applicant could continue to live with him as long as she did not pressure him to marry her.[6]  Due to Mr C’s attitude, the applicant put Mr S’s name on the second applicant’s birth certificate.

   [3] the name has been anonymised

   [4] the name has been anonymised

   [5] the name has been anonymised

   [6] CB 55

6. The applicant claimed that she feared harm upon returning to Nepal for reason of her membership of a particular social group, which was sought to be characterised in various ways[7], but arising from her being a woman who had given birth to a child as the result of an extra-marital relationship, or as a single mother who lacked male protection. The applicant claimed, among other things, that in Nepal she would be subjected to sexual harassment and would be forced into sex trafficking.

   [7] see for instance CB 58

7. On 4 April 2014, the Minister’s delegate (delegate) refused to grant the applicant a protection visa[8].

   [8] CB 143-163

8. On 17 April 2014, the applicants applied to the Tribunal for review of the delegate’s decision[9].  On 3 November 2014 the Tribunal invited the applicants to appear before it to give evidence and present arguments at a hearing scheduled for 16 December 2014[10].  Each of the applicants attended the Tribunal hearing, accompanied by their migration agent[11]. On 18 December 2014 the applicants’ migration agent emailed to the Tribunal a further statutory declaration of the applicant[12].

   [9] CB 164

   [10] CB 174-177

   [11] CB 181

   [12] CB 189-190

Decision of the Tribunal

1. The Tribunal affirmed the decision under review on 22 December 2014[13].  The Tribunal summarised the applicant’s claims as made at [7][14], before proceeding to set out its findings in relation to the credibility of the applicant’s claims.

   [13] CB 194

   [14] CB 196 at [7]

2. With reference to the totality of the evidence advanced by the applicant, the Tribunal concluded that it was not satisfied of the truth or credibility of the applicant’s claims[15].  The Tribunal found that the applicant’s evidence given at the hearing as to the harm she feared in Nepal, and the reason she feared harm, was “vague, changing and unconvincing”[16].  Further, the Tribunal did not accept the applicant’s explanation that she “had no idea” to seek professional advice about her visa situation when it questioned her about the delay in the lodgement of the protection visa application[17].  In determining the overall credibility of the applicant, the Tribunal placed weight upon the applicant’s concessions that she had intentionally misrepresented matters to various Government bodies in Australia, in particular for the purpose of securing and maintaining visa outcomes in Australia[18].  The Tribunal found that these matters, whilst none was singularly determinative of the claims made, cumulatively caused the Tribunal to have significant doubts on the overall credibility of the applicant[19].

   [15] CB 198-199 at [12]

   [16] CB 198-199 at [15]

   [17] CB 199 at [16]

   [18] CB 199 at [17]

   [19] CB 199 at [18]

3. The Tribunal considered the claims as presented by the applicant for fearing harm in Nepal.  It was not satisfied that there was any evidence that it considered amounted to an actual or perceived marriage in Nepal to Mr P[20].  The Tribunal concluded on the basis of its findings that it was not satisfied that the applicant was in any relationship before coming to Australia, including any actual or perceived inter-caste marriage, informal, cultural or otherwise, with Mr P[21].

   [20] CB 200 at [21]

   [21] CB 202 at [26]

4. From [29]-[33] of the decision record, the Tribunal set out its findings in relation to the applicant’s claimed relationship with Mr S. The Tribunal concluded that there was no evidence that the registered marriage between the applicant and Mr S had been officially dissolved or de-registered in Nepal, or in Australia.  The Tribunal found that the applicant had travelled to Australia as the wife of Mr S, and that Mr S was recognised on the second applicant’s birth certificate as her father. Accordingly, on this basis, the Tribunal found that to the extent there would be gossip and speculation in Nepal about the paternity of the second applicant, it would be overcome by the formal documentation that identifies Mr S as the father of the second applicant who was born at a time when the applicant and Mr S were in a registered marriage[22].

   [22] CB 204 at [33]

5. The Tribunal expressed further concerns with the applicant’s evidence about her relationship with Mr C. In particular the Tribunal found it was not satisfied of the applicant’s evidence that she had never discussed with Mr C the prospect of marriage, despite the claimed fear of harm of the applicant of returning to Nepal as a single woman[23].

   [23] CB 205 at [35]

6. The Tribunal was not satisfied that the applicant had been ostracised by her family in Nepal as she claimed, or that she would be denied family support and protection in Nepal in the reasonably foreseeable future. The Tribunal was not satisfied that the applicant was, or would be, a member of any of the particular social groups for which she contended[24].

   [24] CB 205-206 at [37]

The judicial review application

1. These proceedings began with a judicial review application filed on 21 January 2015.  The applicants now rely upon an amended application filed in court by leave at the trial on 16 September 2016.  There are two grounds in that amended application:

   1. The Tribunal erred by considering that the First Applicant (“the Applicant”) could protect herself from harm if she returned to her home country by engaging in illegal or deceitful conduct.

   Particulars

   The Applicant claimed that her husband was not the real father of her child despite his being named as the father on the birth certificate.  The Tribunal considered that the Applicant would not be harmed if relied on the official documentation despite the fact that it contained a false statement.

   2. The Tribunal’s refusal to postpone its decision to await the result of DNA testing of the Second Applicant was an unreasonable exercise of a statutory discretion and/or denied the Applicants an opportunity to present further evidence a real chance to be heard as required by s.425 of the Act.

2. I have before me as evidence the court book filed on 16 February 2015. 

3. Both the applicants and the Minister relied upon pre-hearing written submissions as well as oral submissions made at the trial.

Consideration

Ground 1 – did the Tribunal impose upon the applicant an obligation to rely upon a false document?

1. The applicant set out her claims to fear persecution or harm in her home country in the protection visa application form[25] and in an accompanying statutory declaration[26].  She maintained these claims throughout the processing of the application and the review by the Tribunal.  The Tribunal summarised the applicant's claims at [7] of its decision[27].

   [25] CB 20, question 43

   [26] CB 54-56

   [27] CB 196

2. An essential element of the applicant's claims was that her daughter was not the child of Ms S, the man whom she had married in a “contract marriage” to get a student visa to come to Australia, and whose name appeared on the birth certificate, but was the daughter of another man (Mr C) with whom she had a relationship in Australia but who refused to accept parental responsibility for the child.  She claimed that as a result she would face harm as the mother of an illegitimate child.

3. The Tribunal countered the applicant's claim by saying[28] that the applicant and her husband had, “...on an ongoing basis, represented themselves to Nepali and Australian government agencies, as a registered married couple and a family unit with the second applicant being registered and perceived as the child of the marriage, suggesting that the second applicant is not recorded and will not be perceived as a child born from an extra-marital relationship.”

   [28] CB 203 at [30]

4. Later[29] the Tribunal commented on the applicant's claim that the child's appearance would reveal its paternity, saying that she could overcome any gossip and speculation by relying on the “formal documentation”.

   [29] CB 204 at [33]

5. The Tribunal did not make any finding as to the actual paternity of the child, nor did it make a finding that a woman perceived to have had an illegitimate child would not suffer persecution or harm in Nepal. It was rather suggesting that, even if the applicant's husband was not the child's father, and the applicant might face persecution or harm if this were known, she would be able to protect herself by continuing to rely on previous statements and the child’s birth certificate.

6. The applicant contends that, as a “general principle”, it is impermissible for a statutory body under Australian law to suggest that a person should engage in deceptive and potentially illegal conduct in a foreign country for any reason whatsoever.  The applicant submits that it would also, by analogy, constitute jurisdictional error of the type identified by the High Court in Appellant S395/2002 v Minister for Immigration[30] (Appellant S395) if the fear of persecution or harm were the reason for her needing to hide the truth.

   [30] (2003) 216 CLR 473

7. I reject the applicants’ contention because it is based upon a mischaracterisation of the Tribunal’s analysis.  In that regard, I agree with the submissions of the Minister.

8. First, the Tribunal accepted as true the applicant’s evidence that her (allegedly fake) marriage with Mr S was registered in Nepal. The Tribunal found this to be consistent with documentation provided in respect of the student visa application[31]. The Tribunal was sceptical of the applicant’s explanations for why she could not get a divorce from Mr S. The Tribunal found the applicant had given no evidence that she had taken any steps to alter her registered status in Nepal as Mr S’ wife.

   [31] CB 203 at [29]

9. Further, the Tribunal referred to the applicant’s evidence, given in response to questions asked of her by the Tribunal, that she and Mr S had provided documentation to the Nepali authorities stating that the second applicant was the daughter of the applicant and Mr S in order to include the second applicant on the applicant’s Nepali passport[32].  The Tribunal found that the applicant was not recorded, and would not be perceived, as a woman having had a child out of wedlock, and that neither would the second applicant be perceived as a child born from an extra-marital relationship.  The Tribunal repeated the effect of these findings at [33][33], adding that to the extent that people in Nepal might gossip about the paternity of the second applicant, due to the second applicant’s physical features looking unlike that of Mr S, that such gossip and speculation could be overcome by the formal documentation.

   [32] CB 203 at [30]

   [33] CB 204

10. To this point, the Tribunal’s findings, upon which its conclusions at [30] and [33] were based, arose directly from the Tribunal’s acceptance of evidence given by the applicant herself as to her status in Nepal and the consequential perception of her in light of that status. In making its finding as to the applicant’s documented status in Nepal, and the consequent perception of her in Nepal, the Tribunal did not, and did not need to, make any assumptions about the applicant’s behaviour in the future. It certainly did not find, contrary to the applicants’ submission at [11] of their written submissions, that the applicant could protect herself from persecutory harm[34] by acting discreetly[35].

    [34] The applicants’ submissions at [11] allege that it would constitute jurisdictional error of the type identified by the High Court in Appellant S395, if the fear of persecution or harm were the reason for her needing to hide the truth. The Minister notes that Appellant S395 was concerned with protection as a refugee and not with the independent complementary protection provisions in ss.36(2)(aa) and (2B). The Minister submits that the principles in Appellant S395 are only applicable to the question of whether there is a real chance that, upon return, an applicant would be persecuted for a Convention reason and not to the question of whether an applicant is entitled to complementary protection.  I do not need to rule on that submission, because, in any event, in this matter the Tribunal made no finding that the applicant should modify her behaviour to avoid persecution.  

    [35] cf Appellant S395/2002

11. Contrary to the circumstances in Appellant S395, in which case the Tribunal found that persecution for being perceived as a homosexual man in Bangladesh could be avoided through the discrete behaviour of the applicant in hiding his sexuality, the Tribunal’s findings in the present matter were based upon the applicant’s documented status and the acceptance of the applicant’s own evidence with respect to such status (that at the time the second applicant was born the applicant was in a registered marriage with Mr S who is also registered as the father of the second applicant), not her past (and certainly not her future) conduct.  The Minister rightly points out that there is no suggestion that the applicant’s steps to enter into a “contract marriage” with Mr S, or to include Mr S’ name on the second applicant’s birth certificate, were steps taken by the applicant in order to avoid persecution in Nepal.  The applicant’s evidence was that her decision to enter into a staged marriage with Mr S was for the purpose of obtaining a visa to come to Australia for better work opportunities[36].  The Minister also rightly points out that the Tribunal found that the first applicant’s protracted history of deliberate, repeated claimed misrepresentations for the purpose of securing visa outcomes and protracted stay in Australia raised concerns that the claims put forward in support of the protection visa may not be true in significant respects and that it was unable to be satisfied of the truth or credibility of even the most fundamental of the applicant’s claims[37].

    [36] CB 201-202 at [25] and [27]

    [37] CB 199 at [17]

12. The Tribunal did not need to make a finding as to the paternity of the second applicant (indeed, the Tribunal set out in explicit terms why it was unnecessary for it to arrive at a conclusion on this question[38]). Neither did the Tribunal need to make a finding as to whether a woman perceived to have had an “illegitimate” child would suffer persecution or other harm. That is because the Tribunal found as a fact that the applicant would not be perceived as a woman who had had a child out of wedlock because at the time the second applicant was born the applicant and Mr S were in a registered marriage and formal documentation identifies him as the father[39].  This finding was one of fact, reserved for the Tribunal, and it was open to the Tribunal to make the finding.

Ground 2 – did the Tribunal breach s.425 of the Migration Act 1958 (Cth) by refusing to postpone its decision to await the results of a DNA test of the second applicant or was such a refusal legally unreasonable?

[38] see CB 205 at [36]

[39] CB 204 at [33]

1. At the hearing the Tribunal raised with the applicant the possibility that her husband may have in fact been the father of her child[40].  After the hearing, the applicant requested time to obtain a DNA test to establish the child's paternity[41].  The Tribunal did not reply to the request before making its decision.

   [40] CB 203 at [31]

   [41] CB 190

2. The Tribunal stated in its decision that a paternity test would not be “determinative of the multiple and inter-related issues”[42]. Specifically, the Tribunal considered that the test, and therefore the issue of paternity of the child, “will not address whether the applicants' claims in respect of familial support in Nepal are as they have claimed”.

   [42] CB 205 at [36]

1. Again, I prefer the submissions of the Minister in relation to this ground.

2. The applicant contends that the Tribunal formed the view that solid evidence as to the second applicant’s paternity could not have affected the outcome of the case, and that such a view was unsustainable[43].  The Tribunal’s findings in relation to the question of the necessity of evidence of the second applicant’s paternity is set out at [36][44]. The Tribunal found that paternity testing, “regardless of the results, cannot address or overcome the balance of the Tribunal’s concerns regarding the nature of the applicants’ claimed circumstances in the past, present or reasonably foreseeable future in Nepal”. The Tribunal went on to give at least three examples of the concerns to which it had referred. To the extent that the applicant suggests that evidence of the paternity of the second applicant would have impacted on the outcome of the review, such a suggestion can be answered by referring to the Tribunal’s reasons at [36]. Nowhere does the Tribunal appear to proceed upon any assumption as to the paternity of the second applicant. Rather, the Tribunal placed weight on the documentation that indicated that she was Mr S’ daughter.

   [43] applicants’ submissions at [14]

   [44] CB 205

3. In the circumstances, the Tribunal’s clearly stated reasons for refusing an adjournment to permit the applicant time to put on DNA evidence to establish the paternity of the second applicant was not lacking in an evident and intelligible justification[45]. This is not a case where it is not clearly apparent from the reasons given by the Tribunal what the basis was upon which the statutory power (for instance, to adjourn the review as provided for in s.363(1)(b)) was not exercised[46].  Simply because the applicant might take issue with the views of the Tribunal expressed in [36] is not a basis upon which it can be said that the Tribunal’s reasons for  refusing to exercise the discretion to adjourn the review was unintelligible, or the decision itself to refuse to exercise the discretion was legally unreasonable.

   [45] cf Minister for Immigration v Singh [2014] FCAFC 1; (2014) 231 FCR 437

   [46] Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332

4. Neither was the applicant denied procedural fairness in the circumstances of the case. This case is distinguishable on its facts from MZAMP v Minister for Immigration[47] (MZAMP), to which reference is made in the applicants’ submissions.  In MZAMP the appellants had notified the Tribunal case officer that they wished to provide additional evidence, post-hearing, in relation to the first appellant’s tattoos (which were a critical part of the first appellant’s claims to fear persecution for a Convention reason), however through a misunderstanding the appellant’s notification was not passed on to the Tribunal member, who proceeded to make the decision without permitting the appellant the opportunity to put on further evidence. The present case is unlike MZAMP.

   [47] [2016] FCA 804

5. In the present case, given the Tribunal’s credibility concerns about the applicant, it is doubtful that the Tribunal would have placed much weight on DNA evidence that was not produced under the supervision of either the Tribunal or the Minister’s Department.  Secondly, even if such supervision had been available, there was no reason to expect that either Mr S or Mr C would co-operate.  Thirdly, even if either or both  co-operated, there was a distinct possibility that the test would fail to resolve the child’s paternity.

Conclusion

1. The applicants have failed to establish that the decision of the Tribunal was affected by jurisdictional error.  The decision is accordingly a privative clause decision and the application must be dismissed.  I will so order.

2. I will hear the parties as to costs.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 6 October 2016