FEDERAL COURT OF AUSTRALIA

SZUOB v Minister for Immigration and Border Protection [2015] FCA 752

THE COURT ORDERS THAT:

1.    The name of the second respondent be changed so as to read “Administrative Appeals Tribunal”.

2.    The application be dismissed.

3.    The first applicant pay the first respondent’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

1    This is an application for an extension of time to seek leave to appeal and for leave to appeal a judgment of Judge Nicholls of the Federal Circuit Court of Australia delivered on 6 May 2015: see SZUOB v Minister for Immigration and Border Protection [2015] FCCA 1144 (“SZUOB”).

2    The Minister made an application to amend the name of the second respondent to “Administrative Appeals Tribunal”. I granted that application.

Background

3    The first applicant (to whom I will refer as “applicant”) is a citizen of Nepal. Before arriving in Australia on a tourist visa on 19 June 2012, she had been resident in Singapore for 14 years as a dependent spouse of her husband. Her husband was an officer serving in the Gurkha contingent with the Singapore police service. The second and third applicants are the applicants’ children, a daughter who was 13 and a son who was 12 at the time the Refugee Review Tribunal (as it was then known) made its decision on 27 May 2014. Both children are Nepalese citizens born in Singapore.

4    The applicant applied for a Protection (Class XA) visa on 19 July 2012, the day her visitor’s visa expired. The children applied as members of her family unit. A delegate of the Minister refused to grant the protection visa on 20 March 2013.

5    The primary judge summarised the basis for the applicant’s claim for protection in SZUOB at [28] (reference to the Court Book omitted):

The applicant claimed to fear harm on return to Nepal from her husband, and in-laws, because they believe she is a witch, and because she has separated from her husband. Further, that she was a victim of domestic violence. She also claimed that she may be killed by Maoists as she is anti-Maoist and, in the past, they have demanded money from her husband.

Tribunal Decision

6    On 10 April 2013, the applicant applied to the Tribunal for review of the delegate’s decision. The Tribunal affirmed the delegate’s decision on 27 May 2014. A summary of the Tribunal’s decision is at [21] of its Statement of Decision and Reasons (“Statement”):

The Tribunal finds the applicant’s evidence regarding central aspects of her claims vague, implausible and unsupported, including by country information from independent sources. Considered together, the reasons discussed below, lead the Tribunal to conclude that her claims are not credible. The Tribunal is not satisfied that the applicant is in genuine fear of persecution for a Convention reason or that there is a real chance that she will suffer serious or significant harm on her return to Nepal.

7    In summary, the applicant alleged that her husband had become distant, abusive and violent towards her since March 2011 and had told her that he considered her his “property and he could do as he wanted to [her]”. She says the domestic violence was because her father-in-law accused her of being a witch who caused her mother-in-law to be sick with shivers and fever for a week during a visit to Nepal in late 2010. He also blamed her for not teaching the children Nepali and for not being a good mother, but he never threatened to remove the children. She says that in January 2012 her husband bound, slapped and abused her and threatened her with a knife. She did not report the incident for fear that her husband would lose his job and they would be returned to Nepal and because she did not want anything to happen to the children. She was also concerned because she did not think that she would be believed (because her husband was “very nice on the outside”). She felt her life was at risk if she stayed with him. The applicant says that while the family was staying with her in-laws in late 2010, Maoists came to the house demanding money and threatened harm to the family if the full amount demanded was not paid.

8    The Tribunal did not find it plausible that if the applicant’s husband suspected her of being a witch, he would be cooperative in providing copies of his personal documents and necessary consents for the applicant and their children to obtain visitor’s visas for Australia and pay for the airline tickets: Statement at [23]. The Tribunal found that the applicant’s evidence concerning her husband’s attitudes towards women and witchcraft was implausible in light of (1) his tolerant treatment of the applicant’s unmarried younger sister who lived independently in Sydney when she questioned him about his treatment of the applicant during a visit to Singapore in early 2012, and (2) the fact that he allowed her to take his children to Australia, which would be unlikely if he regarded her as a witch: Statement at [24]. The Tribunal also found that it was not plausible that her husband, an officer in the “prestigious Gurkha contingent” who had lived and worked in highly-developed Singapore for 13 years, would be influenced by village superstition about witchcraft notwithstanding submissions by the applicant’s advisers that such a mindset can persist: Statement at [25].

9    The Tribunal considered that the country information regarding witchcraft in Nepal did not support the applicant’s claims since most women accused of witchcraft were aged, widowed, poor, illiterate, disabled or otherwise socially or economically vulnerable and their “victims” usually died, disappeared, had prolonged illnesses or miscarriages. Neither the applicant nor the mother-in-law’s brief illness from which she recovered fit the profile: Statement at [26].

10    The Tribunal did not consider the reason for the delay in applying for the protection visa convincing. The applicant said it was because she did not know anyone to help and she considered returning to Singapore. The Tribunal noted that her sister had been through the process of applying for a protection visa: Statement at [27].

11    The Tribunal also considered the applicant’s evidence about the Maoists to be vague and confusing: Statement at [28].

12    In the result, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution now or in the reasonably foreseeable future. Further, the Tribunal was not satisfied that there was a real risk that she would suffer significant harm if returned to Nepal.

Federal Circuit Court Decision

13    The applicant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision by an application filed 23 June 2014. On 11 February 2015, a Federal Court Registrar dismissed the application because the applicants did not appear. On 19 February 2015, the applicants filed an “Application in a Case” seeking to set aside the orders made on 11 February 2015. The application was listed on 18 March 2015, but the matter was adjourned because the primary judge was satisfied that the applicants had failed to serve the application on the Minister.

14    The application to set aside the orders made on 11 February 2015 was heard by the primary judge and judgment was reserved on 25 March 2015. On 6 May 2015, the primary judge dismissed the application.

15    The grounds in the applicants’ substantive application to the Federal Circuit Court were as follows (as written):

1. I am not satisfied with the Refugee Review Tribunal Member’s decision on the issue of fairness and natural justice. I claim to be a victim of domestic violence and that the Refugee Review Tribunal rejected my claims because the Member displays a lack of Nepalese cultural awareness that is necessary to examine information from the point of view the environment in which it occurred rather than from the point of her arbitrary view.

2. I am not agreed with the decision because the RRT Member did not consider the concern I expressed. I believe the RRT Member was biased because the Member took an irrelevant view and consideration as to how my husband allowed me and my children to leave Singapore as well as my husband’s mentality and his abuse towards me. Therefore taking an irrelevant consideration and the mere commentary into account to refuse my claims is a legal error.

3. I argue that I am a victim of the RRT Member’s purported decision.

16    First, the primary judge was not satisfied that the applicant provided a satisfactory explanation for her non-attendance before the Registrar on 11 February 2015: SZUOB at [23]. The explanation she provided was that she forgot about the hearing because she was required to take food to her sister and look after her in hospital following the birth of her sister’s baby.

17    Second, the primary judge found that the substantive application did not raise an arguable case “such that is in the interests of justice to reinstate it and proceed to a final hearing”: SZUOB at [26]. The primary judge considered, and dismissed, each of the grounds in the applicants’ substantive application and arguments raised in written submissions.

18    In respect of ground one, the primary judge held that the applicant seemed only to be expressing dissatisfaction with the Tribunal’s findings which were adverse to her credit and its rejection of the factual basis of her claim to fear harm. In the primary judge’s view, the findings on credibility were reasonably open to the Tribunal to make on what was before it. The primary judge also found that the Tribunal did not base any findings on a misunderstanding of relevant cultural attitudes, but the inconsistency of the applicant’s evidence: SZUOB at [41]-[43].

19    In relation to ground two, having considered the relevant authorities, the primary judge found that no bias was revealed. The bias was said to arise because the Tribunal did not accept the applicant’s claims of domestic violence perpetrated by her husband but that finding, and the findings that informed it were reasonably open to the Tribunal based on its views of the applicant’s own evidence. Further, the husband’s claimed conduct could not be said to be an irrelevant consideration when his conduct formed the basis for the applicant’s claim to fear harm: SZUOB at [44]-[50].

20    The primary judge does not seem to have separately dealt with ground three. However, it is clear that it does not allege any particular error on the part of the Tribunal, but rather simply expressed disagreement with the overall decision.

21    The primary judge then dealt with six numbered paragraphs in the applicants’ written submissions because they appeared, in part, to raise additional complaints about the Tribunal’s decision: SZUOB at [51].

22    Paragraph one alleged that the Tribunal “overlooked” the applicant’s claims. The primary judge found that if “overlooked” meant failed to “consider” it was clear from a fair reading of the Statement that the Tribunal considered the applicant’s claims and rejected them on the basis of findings which were reasonably open to it: SZUOB at [52].

23    Paragraph two asserted bias on the part of the Tribunal and failure to bring an open mind to the proceedings. This was rejected for the same reason as ground two; the primary judge noted that there was nothing in the Tribunal’s Statement to support that assertion and the applicant provided no evidence to support it: SZUOB at [53].

24    Paragraph three said that it was unfair that the Tribunal had ignored expert evidence given by a psychologist in support of the applicant’s claims. Paragraph six alleged that the Tribunal ignored evidence of the applicant’s “traumatised mental state”. The primary judge gave detailed consideration to this claim and held that the Tribunal had not ignored the report. Although the substance of the report was not referred to in the Tribunal’s reasons, it was referred to by date of the letter under which the report was received in a list of documents considered by the Tribunal set out in the Statement. The primary judge noted that the applicant was represented by a registered migration agent before the delegate and the Tribunal, but that agent did not make clear the purpose for submitting the report. The primary judge found that the report only recounted the applicant’s account of events and “could not be said to be independently corroborative of the applicant’s claims as to past events and to fear harm because of them”, nor did it say anything about the applicant’s capacity to participate at the hearing. The primary judge accepted that on the evidence, the Tribunal did not ignore the report and it was open to him to find that it had not been ignored or overlooked: SZUOB at [54]-[64].

25    Paragraph four complained about the Tribunal’s finding that the applicant’s claims were unsupported by country information. The primary judge held that the Tribunal explained why the country information concerning witchcraft in Nepal was not of relevance, and that country information submitted by the applicant’s representatives was of no assistance to the applicant: SZUOB at [65]-[66].

26    The primary judge considered that paragraph five appeared to assert a failure by the Tribunal to put to the applicant information the Tribunal considered adverse to her case but she could not identify the information to which she referred. The primary judge concluded that the Tribunal’s adverse view of her credibility was not information for the purposes of s 424A of the Migration Act 1958 (Cth), relying on SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26. Further, country information falls within the exception in s 424A(3)(a) and in relation to information in the applicant’s application for a visitor’s visa, it is clear from [19] of the Statement that the Tribunal discussed the information with the applicant and gave her an opportunity to comment on it: SZUOB at [67]-[70].

Application in this Court

27    I accepted the Minister’s submission that the judgment in SZUOB is interlocutory: see SZQBV v Minister for Immigration and Citizenship [2011] FCA 1391 at [32] per Cowdroy J. Leave to appeal from it is therefore required under s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

28    The applicants filed their application in this Court on 3 June 2015. Pursuant to r 35.13(a) of the Federal Court Rules 2011 (Cth), an application for leave to appeal must be filed within 14 days of the date on which the judgment from which the appeal is sought was pronounced or the order is made. The primary judgment was delivered, and orders were made, on 6 May 2015. The application needed to be filed by 20 May 2015 to be within time. The delay was therefore 14 days.

29    The reason for the delay is set out in an affidavit filed in this Court by the applicant as follows (as written):

…

2. I failed to lodge my application for leave to appeal within 14 days from the date of judgement because I thought that I could lodge my application for leave to appeal within 28 days from the date of judgement.

3. I learned the deadline from the court officer at the Registry, Sydney when I went and tried to file my application on 26 May 2015.

…

30    The applicants’ draft notice of appeal specifies three grounds. They are (as written):

1. The Federal Circuit Court erred by failing to find that the Tribunal Member made a legal mistake in that the Tribunal Member has ignored completely an expert psychologist report from Dr Amanda Gordon given to the Department of Immigration and Border Protection to explain issues relating to my trauma.

2. It is contended that the Federal Circuit Court Judge Nicholls erred by failing to find that the Tribunal Member overlooked my claims on the issue of my suffering from domestic violence in concluding that my husband did not harm or did not try to harm having regard to the material upon which it relied, that reliance being irrational and unreasonable.

3. I argue that the Tribunal Member had closed its mind prematurely and the Tribunal Member used the information given to Department of Immigration and Border Protection with the visitor visa application as the main reason to refuse. It is unfair and I am a victim of the Tribunal Member’s closed and premature mind.

31    Relevant factors to the exercise of the discretion to extend time are the length of the applicant’s delay in lodging the application and reasons for the delay; any prejudice to the respondent if the delay were granted; and the prospects of the proposed grounds of appeal: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 349-9 per Wilcox J.

32    In considering whether leave to appeal should be granted, it must be shown that there is sufficient doubt as to the correctness of the judgment below, and that, if the judgment below is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398.

Consideration

33    The Minister accepts that the delay is short and that it would not suffer prejudice if the extension of time were granted. However, the Minister submits that an extension of time and leave to appeal should be refused because the grounds sought to be raised by the applicants lack merit so that there is no utility in the Court granting an extension of time, and the reasons given for the delay are insufficient. Further, the Minister submits that should the extension of time and leave to appeal nevertheless be granted, the appeal should be dismissed.

34    Although the applicant has offered no legally acceptable excuse for her delay, the delay would be no impediment to the Court granting an extension of time and leave to appeal if the substantive appeal appeared to have merit. It does not.

35    The applicant appeared at the hearing with the assistance of an interpreter. She filed no written submissions. Her oral submissions were that she did not lie to the psychologist or to the Tribunal. In her opinion, she was the person who suffered domestic violence and in a position to know the truth, and therefore the Tribunal’s decision was wrong. As these submissions express only disagreement with the Tribunal’s decision, they do not advance the grounds raised by the applicants and invite impermissible merits review. The applicant also submits it was inappropriate for the Tribunal to use her visitor’s visa application information in the context of her protection visa; I reject that submission for the reason set out below.

36    The applicant’s first proposed ground is essentially the same as that considered by the primary judge at [54]-[64] of his reasons. The applicant’s second proposed ground is essentially the same as that addressed at [52] of the primary judge’s reasons. The applicant’s third proposed ground is essentially the same as those addressed at [53] and [67]-[70] of the primary judge’s reasons.

37    After careful review of the Statement and SZUOB in light of the grounds proposed by the applicant and her submissions, I perceive no appellable error on the part of the primary judge, and no jurisdictional error on the part of the Tribunal.

38    I dismiss the application. As the second and third applicants are children, I order that the applicant pay the first respondent’s costs, as agreed or taxed.

Associate:

Dated:    22 July 2015