FEDERAL COURT OF AUSTRALIA

SZTPH v Minister for Immigration and Border Protection [2015] FCA 832

THE COURT ORDERS THAT:

1.    The Applicant’s application for an extension of time to appeal filed on 25 March 2015 is dismissed.

2.    The Applicant 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

1    This is an application for an extension of time to appeal from a decision of a judge of the Federal Circuit Court of Australia delivered on 10 February 2015, dismissing the applicant’s application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal).

2    The applicant is a citizen of Bangladesh who arrived in Australia on 5 July 2010 on a Higher Education (subclass 573) visa. On 8 December 2011, the applicant was granted a Vocational Education and Training student (subclass 572) visa. On 5 April 2012, the applicant lodged an application with the Department of Immigration and Citizenship (now the Department of Immigration and Border Protection) for a Protection (Class XA) visa.

3    The applicant claimed in her handwritten protection visa application that she feared suffering significant harm if she were to return to Bangladesh as a result of the applicant and her parents converting from Islam to Christianity in 2006.

4    The applicant claimed that her father was murdered by her relatives on account of his religious conversion. The applicant said that she and her mother had received threats from her relatives that they would be killed if her father was not given a Muslim burial.

5    The applicant said that she was too scared to participate in Christian church services in Bangladesh and she was under continuous pressure to convert back to Islam. She claimed that her mother sold her apartment and they moved away but they continued to receive death threats from her paternal uncles.

6    The applicant claimed that her mother died and left behind money for her. She said that she was threatened and forced to hand over approximately 25 Lakhs from her inheritance to her cousin. The applicant said that she continued to receive death threats from her relatives until she departed for Australia.

7    On 20 August 2012, a delegate of the first respondent rejected the applicant’s protection visa application.

the tribunal

8    The applicant sought a review of the delegate’s decision before the Tribunal. On 11 September 2013, the applicant gave evidence before the Tribunal to support her claims. The applicant was represented by a migration agent in respect of her application for review before the Tribunal.

9    The Tribunal rejected the applicant’s claim of a well-founded fear of facing harm if she were to return to Bangladesh on credibility grounds. The Tribunal held that the applicant gave inconsistent evidence on various occasions and it did not accept that the applicant had converted to Christianity in Bangladesh, or that her father was murdered, or that the applicant had been threatened by her relatives.

10    The Tribunal accepted that the applicant had become involved in and attended Christian churches in Australia but concluded that she had engaged in this conduct for the purposes of her protection visa application. The Tribunal found that there was no real chance that the applicant would face harm if she were to return to Bangladesh.

the federal circuit court

11    The applicant brought an application for judicial review of the decision of the Tribunal to the Federal Circuit Court. The applicant was legally represented before the Federal Circuit Court. The applicant’s grounds of review were:

1.    The Second Respondent failed to exercise her jurisdiction in failing to consider a material claim made by the Applicant, specifically, the claim that the Applicant feared persecution by reason of her membership of a particular social group, being the group of single women without male protection in Bangladesh or, in the alternative, the group of single women in Bangladesh, or in the further alternative, the group of women in Bangladesh.

2.    The Second Respondent failed to exerciser her jurisdiction in failing to consider a material claim made by the Applicant, specifically, the claim that under section 36(2)(aa) of the Migration Act 1958 that she would suffer significant harm in Bangladesh because she is a woman and because she is a single woman, and because she is a single woman without male protection in Bangladesh.

3.    In the alternative to paragraphs 1 and 2, the Second Respondent made a jurisdictional error in failing to take into account a relevant consideration, being evidence given by the Applicant to the effect that women, or alternatively single woman, alternatively single women without male protection, face a real risk of suffering serious harm in Bangladesh.

4.    The Second Respondent made a jurisdictional error in disregarding evidence of the Applicant’s conduct in Australia, purportedly in reliance on section 91R(3) of the Migration Act 195[8], in considering whether the Applicant would suffer significant harm for the purposes of section 36(2)(aa) of the Migration Act 1958.

12    Before the Federal Circuit Court, the applicant referred to a number of occasions in her evidence before the Tribunal in which she had referred to the fact that she did not have male protection and that she was scared on that account.

13    The primary judge considered the first three grounds of review together.

14    The primary judge referred to the decisions of NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 and NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695. The primary judge recognised that the Tribunal was required to deal with claims expressly articulated by the applicant, and any unarticulated claims which arose clearly on the materials before it.

15    The primary judge set out all of the passages from the transcript of the proceeding before the Tribunal in which there was a reference to the applicant being a single woman without male protection in Bangladesh society and observed that some of the passages if viewed in isolation, might have given rise to a claim for refugee status on the basis of being a member of a particular class of persons to which the applicant referred in her grounds of review.

16    However, the primary judge went on to observe that the proper approach was to view the passages in the full context of the rest of the evidence and the other materials including the submissions which were before the Tribunal.

17    The primary judge also referred to the fact that during the hearing the Tribunal specifically asked the applicant whether she was seeking to make a separate claim for a protection visa on the basis that she feared harm by reason of being a single woman without male support; and that the applicant had answered in the negative.

18    The primary judge went on to analyse each of the relevant passages from the transcript relied on by the applicant and in a closely reasoned decision concluded that the references to the applicant fearing for her safety on the grounds of being a single woman without male support, did not give rise to the circumstance of an unarticulated claim which arose clearly on the materials before the Tribunal. The primary judge, accordingly, found that the Tribunal had not fallen into jurisdictional error by failing to consider a separate claim that the applicant feared persecution by reason of being a member of one or more of the social groups identified in the grounds of review.

19    As to the fourth ground of judicial review, the primary judge found that the Tribunal had indeed taken into account the evidence that the applicant had practised as a Christian after she came to Australia but concluded that she would not do so if she were to return to Bangladesh; and held further that there was no evidence that any person in Bangladesh knew that she had practised as a Christian in Australia.

20    On this basis, the primary judge dismissed the fourth ground of review, and the application for judicial review.

application for an extension of time to appeal

21    The applicant filed a notice of appeal against the decision of the primary judge on 17 March 2015, which was two weeks out of time. Subsequently, on 25 March 2015, the applicant filed an application for an extension of time.

22    In the applicant’s affidavit in support dated 17 March 2015, the applicant said that the delay in filing her appeal was caused by her difficulty in obtaining legal representation. She said that she only managed to find a lawyer on 13 March 2015. However, no lawyer entered an appearance for the applicant in this proceeding.

23    Neither the notice of appeal which the applicant filed initially, nor the application for an extension of time, identified any error by the primary judge.

24    The applicant was self-represented before this Court. When called upon, the applicant was unable to articulate any error in the reasoning or approach of the primary judge.

25    I called on counsel for the first respondent to make submissions and then provided the applicant with an opportunity to respond to counsel for the first respondent’s submissions with a view to providing her with a further opportunity to identify any error made by the primary judge. The applicant was again unable to identify any error.

26    In my view, the primary judge did not err in the determinations which he made.

27    In relation to the first three grounds of review, the primary judge correctly identified the legal principles which applied, and correctly had regard to the full context of all of the material before the Tribunal in considering whether the unarticulated separate claim for which the applicant contended, clearly arose from those passages of the transcript relied upon by the applicant. In my view, the primary judge did not err in concluding that no such separate claim clearly arose, and in consequently dismissing those grounds of review.

28    In relation to the fourth ground of review, it is plain that the Tribunal did take into account the applicant’s church going activities after arriving in Australia in considering the claim for complementary protection. Therefore, in my view, the primary judge did not err in dismissing this ground of review.

29    It follows, that the primary judge’s decision is not attended by sufficient doubt to warrant the grant of an extension of time within which to bring an appeal.

30    The applicant’s application for an extension of time to appeal is, therefore, dismissed with costs.

Associate

Dated:    13 August 2015