FEDERAL COURT OF AUSTRALIA

SZRLY v Minister for Immigration and Citizenship [2012] FCA 1459

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Introduction

1    The appellant represented herself throughout these proceedings, which are an appeal from a decision dated 14 September 2012 of her Honour Emmett FM. Her Honour dismissed the appellant’s judicial review application under s 39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (the Act). The subject of the judicial review application was a decision dated 3 May 2012 by the Refugee Review Tribunal (RRT) affirming a decision of the Minister’s delegate refusing the appellant a protection visa.

2    The appellant raises eight grounds of appeal, the first three of which were not raised below. The Minister opposed leave being granted to allow the appellant to raise those new grounds.

3    Before outlining the relevant background facts, it is convenient to deal briefly with a procedural matter concerning the appellant’s failure to appear when the matter was called for hearing on 14 December 2012.

A procedural matter

4    When the matter was called for hearing, the appellant made no appearance. The matter was called outside the Court room. There was still no appearance. In the circumstances, I proceeded to hear argument from Mr Reilly of Counsel representing the Minister. I raised a number of matters with him concerning the notice of appeal and the appellant’s written outline of submissions, which had been filed on 11 December 2012. After a hearing which lasted approximately 20 minutes, I reserved my judgment.

5    Approximately 30 minutes after the hearing concluded, I was informed that the appellant had been advised by some unknown person that her matter was being heard, not in the Federal Court, but in the Federal Magistrates Court. Apparently that was the reason why she was not present when the matter had been called. I arranged for the matter to be relisted. When the matter resumed a short time later, I advised the appellant that the hearing had proceeded in her absence at 9.30 am as scheduled. I also summarised what had occurred during the 20 minute hearing in her absence, including Mr Reilly’s submission to the effect that it was open to the appellant’s recently born son to lodge his own application for a protection visa. I gave Mr Reilly an opportunity to supplement my summary but he accepted that it was an adequate summary of what had occurred. I indicated to the appellant that I had carefully read her notice of appeal and outline of written submissions. I then invited the appellant to make whatever oral submissions she wished in support of her appeal. She indicated that she had read the Minister’s two sets of written submissions and was content to rely upon her written submissions and notice of appeal.

Summary of background facts

6    The background facts were summarised by Emmett FM at [4]-[9] and [14]-[29]. Her Honour also conveniently summarised the RRT’s reasons for decision at [30]-[37]. Drawing primarily on that summary and avoiding unnecessary repetition, the salient matters bearing upon this appeal may briefly be described as follows.

7    The appellant is a citizen of the Republic of South Africa (South Africa). She arrived in Australia on 11 January 2012 as an undocumented arrival. She had departed South Africa legally on a passport in her own name.

8    She lodged an application for a Protection (Class XA) visa on 25 January 2012. That application was refused by the Minister’s delegate on 7 March 2012. The RRT refused her application for review of the delegate’s decision on 3 May 2012. She gave birth to a son in Australia in July 2012.

9    The appellant’s application for a protection visa related to her claims of a well-founded fear of persecution in both South Africa and Ethiopia. As will emerge below, although the appellant is a citizen of South Africa, she is married to an Ethiopian and has spent some time in Ethiopia.

10    She claimed that she left South Africa in 2005 because both her father and brother were murdered by the African National Congress Party (the ANC) because of their political opposition. She claimed that her father and brother were politically active supporters of the Inkatha Freedom Party. She said that her father had stood unsuccessfully for the position of Councillor in local elections opposing the incumbent ANC Councillor.

11    After a series of events relating to what the appellant claimed were murders of both her father and her brother, the appellant said that she fled to Ethiopia after being informed that the ANC Councillor was looking for the remaining members of her family to kill them. Part of the reason was because, after her father had been murdered, the appellant claimed that her brother had set fire to the ANC Councillor’s house, killing the ANC Councillor’s wife and child and that the ANC Councillor was now seeking revenge against all the appellant’s family.

12    The appellant also claimed that she was unable to return to South Africa because the eldest of her children was a child of rape and would be ostracised if returned to South Africa. She also said children of foreigners and their mothers are abused there.

13    After allegedly living in Ethiopia since 2005, the appellant then claimed that she had to flee Ethiopia in January 2012 in the following circumstances. She said that unbeknown to her, her husband was a supporter of the Oromo political movement in Ethiopia. She said that her husband had not disclosed his political activities to her. She said that her husband had disappeared in Ethiopia in early December 2011 and, shortly afterwards, she was arrested and detained on three occasions over three weeks without any charge being laid.

14    She claimed that during her detention in Ethiopia, she was beaten with a plastic pipe and severely mistreated. She claimed that she was only released when she became physically ill (unbeknown to her she was pregnant at the time) and the police had not wanted her to die in gaol.

15    The appellant claimed that, upon her release, her mother-in-law told her she should leave as it was no longer safe for her to live in either Ethiopia or South Africa. She said that her other children were with her mother-in-law in Ethiopia.

16    As noted above, both the delegate and the RRT rejected the appellant’s application. It is sufficient to focus on the RRT’s decision.

17    In brief terms, the appellant’s case was rejected because the RRT was not satisfied as to her credibility. In so doing, particular significance was attached to the fact that the appellant had travelled to New Zealand in February 2010 on a South African passport. She told New Zealand authorities that she was a tourist and had been living in South Africa at that time (i.e. not in Ethiopia) with her husband and her children. She provided other details about her work situation in South Africa. The RRT accepted that the appellant’s daughter had been born in Ethiopia but found that both she and her daughter had then returned to South Africa. She was refused entry to New Zealand in 2010.

18    The RRT found that the level of detail provided to the New Zealand authorities in February 2010 suggested that the appellant had been telling the truth at that time about her residency in South Africa. The RRT accepted that the appellant was reluctant to give the New Zealand authorities details of her protection claims in relation to both South Africa and Ethiopia. But it found it improbable that she would fail to raise at all any of those claims at the time and instead prefer to create a pretence of travelling to New Zealand as a tourist.

19    Based in large measure on that adverse finding of credibility, the RRT did not accept the appellant’s claims regarding the events in South Africa leading up to her alleged departure from there in 2005. It accepted that one of her sons was born after she had been raped in 2004 and that her husband and father of her daughter was an Ethiopian. As it found that she was living with her husband, the RRT did not accept that she would face harm in South Africa as the mother of a child of rape or as the partner of a foreigner and mother of his child. The RRT also rejected various other claims made by the appellant based upon its adverse finding of credibility. It also rejected her claims for complementary protection under s 36(2)(aa) of the Act.

Proceedings before Emmett FM

20    The appellant raised five grounds of appeal, each of which was dismissed by Emmett FM. All the grounds were directed to her claims to be a refugee and not her claim for complementary protection.

21    Ground 1 below was directed to a complaint about the RRT’s finding that the appellant told the truth to the New Zealand authorities in 2010. This formed the basis for the RRT’s adverse conclusion on credibility. This was said to be contradictory to the RRT’s acceptance that the appellant may have been reluctant to go into details about her situation at the time of her visit to New Zealand. Her Honour found that there was no contradiction in the RRT’s two findings and that it was open to the RRT to conclude that the appellant’s evidence before the RRT was inconsistent with what she had told the New Zealand authorities.

22    Ground 2 involved an allegation of constructive failure to exercise jurisdiction. It concerned the alleged failure of the RRT to consider the appellant’s claim that she had come to the attention of the ANC Councillor and that the RRT had failed to explore these claims but instead concentrated on the events surrounding the appellant’s unsuccessful attempt to enter New Zealand in February 2010. Her Honour rejected these claims, finding that on a fair reading of the RRT’s decision it had explored the relevant claims.

23    Ground 3 involved allegations that there was no evidence to support the RRT’s findings that the appellant only visited Ethiopia for the birth of her daughter and then returned to South Africa. This ground also included claims that the RRT had made certain other findings in breach of s 430 of the Act. All these claims were rejected by her Honour on the basis that she found that the RRT’s findings were open to it on the material or evidence before it, and for the reasons it gave, including its adverse credibility findings.

24    Ground 4 involved a complaint that the RRT had failed to make necessary and relevant inquiries under ss 424 and 427 of the Act regarding the source of the appellant’s scars. Her Honour found there was no legal obligation on the RRT to consider whether it should exercise its permissive powers under these statutory provisions. Her Honour carefully reviewed the relevant authorities and concluded there was no request made under ss 424 or 427, other than for the RRT to look at the appellant’s scars, which the RRT declined to do. Her Honour concluded that this did not raise any jurisdictional error.

25    Ground 5 involved a complaint of denial of procedural fairness in not permitting the appellant to provide further material to the RRT in support of her claims. Her Honour rejected this complaint on the basis that the appellant had in fact been given an opportunity to provide further material, but failed to avail herself of that opportunity.

Appeal to this Court

26    It is convenient to now deal with each of the 8 grounds of appeal, dealing with grounds 1-3 collectively as they overlap (the grounds are set out below in the same form as in the notice of appeal).

27    Ground 1: The learned Federal Magistrate Emmett erred in law for failing to find and rule that, the Refugee Review Tribunal denied me procedural fairness and natural justice by its failure to treat consider the best interest of my child as a primary consideration contrary to the precedent set and laid out by the High Court of Australia in Minister of Immigration and Ethnic Affairs V Teoh and other precedents from the Federal Court of Australia.

Grounds 1-3 all relate to a claim of procedural unfairness stemming from the alleged failure of the RRT to consider the best interests of the appellant’s son as a primary consideration in its decision. As noted above, the Minister opposed leave being granted to permit the appellant to raise these grounds for the first time on appeal. All three new grounds raise legal and not factual matters and the Minister did not suggest that any prejudice would arise if leave were granted. I consider that leave should be granted, noting that in addition to the matters referred to immediately above, the appellant was not legally represented.

28    For the following reasons, however, I consider that each of the three new grounds should be dismissed. First, it is to be noted that the appellant’s son was not born until after the decisions of both the delegate and the RRT. The springboard for each of the three fresh grounds of appeal is the obligation imposed by Article 3 of the United Nations Convention on the Rights of the Child (the Convention) to the effect that, in all actions concerning children, “the best interests of the child shall be a primary consideration”. “Child” is defined in Article 1 of the Convention as meaning “every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier”. It is also to be noted that the Preamble to the Convention contains the following statement:

Bearing in mind that, as indicated in the Declaration of the Rights of the Child, “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth”

I am not aware of any judicial authority supporting the proposition that Article 3 the Convention applies to unborn children.

29    Secondly, as the Minister pointed out, there is a long line of authority to the effect that the principle in Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 291 per Mason CJ and Deane J (to the effect that there is a legitimate expectation that administrative decision-makers will act in conformity with the Convention), has no application to a decision whether or not to grant a protection visa, because such a decision is not discretionary (see, for example, SZBPQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 568 at [17]-[19] per Hely J (an application for special leave to appeal was refused: SZBPQ by his next friend v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA Trans 249); Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 at [36] and M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146 at [53] per Goldberg, Weinberg and Kenny JJ).

30    Thirdly, I also note that in Teoh, Gaudron J held at p 304 that the obligation of administrative decision-makers to treat the best interests of a child as a primary consideration stemmed not only from Article 3 of the Convention and the ratification by Australia, but also from the proposition that any reasonable person “would assume or expect that the interests of the child would be taken into account in that way as a matter of course and without any need for the issue to be raised with the decision-maker”. Her Honour explained that such an assumption would be made “because of the special vulnerability of children, particularly where the break-up of the family unit is, or may be, involved, and because of their expectation that a civilised society would be alert to its responsibilities to children who are, or may be, in need of protection”. I do not read her Honour’s statements as applying to administrative decisions not involving any discretion. Indeed, it is significant that her Honour expressed those views at p 304 by explicit reference to “all discretionary decisions by governments and government agencies which directly affect that child’s individual welfare…” (emphasis added).

31    While I consider that there is authority binding on me to the effect that the principle in Teoh does not apply where there is a duty, as opposed to a discretion, it is important to note that the Minister accepted that it was open to the appellant’s new born son to make his own application for a protection visa. No doubt that is a matter to which his mother will give anxious attention, together with his right if any to seek complementary protection.

32    Although the appellant made no reference to the matter, it is also to be noted that the RRT found at [150] that, because her unborn child was not included in her application for a protection visa, the RRT did not have jurisdiction to consider any claims made on behalf of her unborn child. It appears that no issue was taken with that finding before Emmett FM and it is unnecessary for me to express any view on that finding having regard to the content of the notice of appeal. As noted above, however, it is open to the appellant’s son to lodge his own application for a protection visa.

33    Ground 2: Her honour erred in law for not finding and ruling that the Tribunal denied me procedural fairness and natural justice by it failure to engage Australia’s International obligation under the United Nations Convention on the Rights of the Child (the Convention).

See [27]-[32] above.

34    Ground 3: Her honour erred in law for failing to find and rule that the Tribunal denied me procedural fairness by its failure to warn me that it was not going to engage Australia’s International Obligation in considering the the best interest of my child as a primary consideration. Given the fact that I had a legitimate expectation that the Tribunal would treat the best interest of my child as a primary consideration when I made my claims unbehalf of my child and give me the opportunity to respond and put in submission that it should not take that cause.

See [27]-[32] above.

35    Ground 4: Her honour Emmett FM erred in law and denied me procedural fairness when she refused me the opportunity to file my written submission on 3 September 2012 at the hearing and for concluding and finding that my grounds of appeal were not made out when they were actually made out given the fact that, I am an unrepresented litigant.

The wording of this ground is a little confused. To complain that Emmett FM found that the grounds of appeal were not made out when the appellant says they actually were made out because she is unrepresented cannot constitute procedural unfairness, but rather constitutes a challenge to the correctness of the merits of her Honour’s decision. No appellable error is disclosed in that aspect of this ground of appeal.

36    As to the complaint that Emmett FM denied the appellant procedural fairness by refusing an opportunity for the appellant to file written submissions on 3 September 2012, the Minister challenges the appellant’s claim that she was denied that opportunity. It is also to be noted that at [45] of her Honour’s reasons for judgment, reference is made to the fact that the appellant was invited to make submissions in support of each of her grounds of review and in support of her application for judicial review generally. Her Honour also noted that the appellant did make submissions in respect of some, but not all, of her grounds of appeal. Thus she took advantage of her right to make oral submissions. The appellant has not filed any evidence to lay a factual foundation for her complaint of procedural unfairness. In those circumstances, the ground must be dismissed.

37    Ground 5: Her honour erred in law for not finding and ruling that the Tribunal denied me procedural fairness and natural justice by its refusal to allow me put in additional relevant probative materials in regards to the cause of my father’s death from the investigating police officers who had carriage of the matter in South Africa and the relevant materials relating to and in regards to my paternity, when it the Tribunal stated that, it did not need any further materials from me. That this statement has an air of pre-determination, that the Tribunal had already made up its mind to affirm the delegate’s decision and the hearing was only an academic exercise.

Her Honour dealt with this ground in [87]-[91] of her reasons for judgment. It was noted that the RRT had expressly stated in its decision record that the appellant was informed that she was entitled to seek additional time to make any further comments or response she wished to make and that nothing further was received. At [89], Emmett FM noted that, under cross-examination, the appellant agreed that she had in fact been given this further opportunity by the RRT. There is no basis for any allegation of actual or apprehended bias.

38    In all these circumstances ground 5 must be dismissed.

39    Ground 6: Her honour Emmett FM erred in law for failing to find that the Tribunal constructively failed to exercise jurisdiction when it failed to appreciate that I was claiming to be a refugee because a had been individually targeted and my fear if returned to either South Africa or Ethiopia was not that I will face further persecution but that I will be killed.

This ground broadly reflects ground 2 as argued below. The appellant argued that the RRT had constructively failed to exercise jurisdiction in her matter because it failed to appreciate that the Convention definition of “refugee” looks both to the individual and to the circumstances prevailing in his or her country of nationality. A similar argument was put to Emmett FM. Her Honour’s reasons for dismissing this ground are set out in [56]-[68] of her reasons for judgment. It is unnecessary to repeat those reasons here. The reasoning is comprehensive and persuasive and, in my view, the appellant has failed to establish any appellable error in respect of her Honour’s analysis or findings on this matter.

40    Ground 7: Her honour erred in law for failing to find and rule that the Tribunal committed jurisdictional error for making findings on material question of facts in breach of section 430of the Migration Act.

This ground of appeal substantially reflects ground 3 as argued below. Her Honour’s reasons for dismissing the ground are set out in [69]-[75] of her reasons for judgment which, again, need not be repeated here. Those reasons are coherent and persuasive and, in my view, the appellant has failed to establish any appellable error relating to them.

41    Ground 8: Her honour erred in law for failing to find that the Tribunal was under a duty to make inquiry about and regarding the cause of the scars on my body in breach of sections 424(1) and 427(1)(d) of the Migration Act 1958.

This ground substantially reflects ground 4 as argued below. Her Honour’s reasons for dismissing the ground are set out in [76]-[86] of her reasons for judgment. Her Honour carefully analysed ss 424 and 427 of the Act, together with relevant legal authorities. She accepted that, in some circumstances, the RRT may be obliged to make some further investigation, but that there was no general obligation on the RRT to investigate an applicant’s claims.

42    Her Honour found at [82] that the RRT accepted the appellant’s evidence that she had scars on her body, but it was not satisfied as to the source of the scars. There was no material before the RRT to suggest that any particular investigation or medical examination would have established the origin of the appellant’s scars. Significantly, her Honour found that the appellant had not made any request under ss 424 or 427 of the Act. Her request was merely that the RRT look at her scars, which the RRT declined to do. I respectfully agree with Emmett FM’s finding that, to the extent that such a request is capable of constituting a request under the relevant provisions, the RRT’s decision to take no further action does not reveal a jurisdictional error where there was no material to suggest that any particular investigation would have established the origin of the scars (see Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [26] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

43    Accordingly, this ground must also be dismissed.

44    It is important that the appellant understands the limited jurisdiction of both the Federal Magistrates Court and this Court in this area. The Federal Magistrates Court is confined to exercising judicial review jurisdiction which substantially precludes it from reviewing the merits of individual decisions. And in exercising its appellate jurisdiction, this Court is confined to dealing with appellable errors made by the Federal Magistrates Court. Both Courts are obliged by law to abide by the limits of their respective jurisdictions, whatever views they might hold regarding the merits of the appellant’s overall position, including concerns about her future welfare and that of her son.

45    For all these reasons, I am obliged to dismiss the appeal and order the appellant to pay the Minister’s costs. I will make orders accordingly.

Associate:

Dated:    21 December 2012