FEDERAL COURT OF AUSTRALIA

SZTOK v Minister for Immigration and Border Protection [2015] FCA 929

THE COURT DIRECTS THAT:

1.    The name of the second respondent be changed to Administrative Appeals Tribunal.

THE COURT ORDERS THAT:

2.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

1    The appellant is a citizen of Nepal who came to Australia as a student in 2007, arriving on 13 March 2007. The appellant later applied for a partner (de facto) visa and later again for a protection visa.

2    In a statement provided in support of her application for a protection visa the appellant explained that after she came to Australia on a student visa in 2007 she lived initially with a cousin. In July 2008 she met a friend of her cousin and started going out with him. In May 2009 they decided to live together and on 23 June 2010 the appellant applied for a partner visa.

3    The relationship did not last. The appellant stated that her partner “withdrew his sponsorship” and “broke the relationship”.

4    On 29 February 2012, the appellant applied for a protection visa. In her application for that visa she explained that her family is Hindu and follows the Hindu religion in which, she stated, “girls or women can live together with someone only after marriage”. She explained that she convinced her family to unhappily accept her de facto relationship upon the basis that she would very soon marry her partner, but that upon the relationship terminating her parents were very angry and upset. She stated in her application for a protection visa: “They think, I have committed a religious crime, I won’t be accepted by the society and relatives. If I go back, I have to face punishment from my family and also from society. There are many such cases in Nepal, girl has been punished to death from family or relative for living or having affair without marriage.” She also said: “I was living with the person whom I never had married and now I don’t have any relation with that person. I am from Hindu society and in that society, women are not allowed to live together with man without marriage. If they do, its a crime. The girl has to face punishment from family, relative and society. Sometimes, the punishment would be the death.”

5    The appellant also said that the authorities in Nepal could not help her as they could not protect her all the time or provide security all the time. Furthermore, she claimed that very few people have been arrested in Nepal for punishing people such as herself. Rather, such actions are ignored.

6    The appellant’s application for a protection visa was refused by a delegate of the Minister on 19 July 2012. The delegate made the following observations about information which the appellant provided at an interview in connection with her claim for a protection visa:

At interview she clarified that the harm she feared was that her life would be made more difficult as a single woman living in Nepal. Her family did not threaten to harm her physically but believed it would be better for her if she did not return. She remains in contact with her parents and brother regularly (once or twice a month by telephone) but claims that her relationship with them has diminished in quality since her relationship ended and the marriage did not take place. She indicated that the pressure of the social disgrace could lead her to consider suicide. She claims that society will look down upon her and that she will be unlikely to ever marry now that she has lived with a man outside marriage. When asked what would happen to her if she returned to Nepal, the applicant replied:

“First of all, if I visit my parents they’re not going to treat me as they used to before I left. They don’t respect me at all, they think that I’ve ruined their reputation and respect in the society. They have to hear lots of things from them because of me. If I go back they will have to suffer and with them I will have to suffer a lot.”

The applicant claimed that in Nepal, girls are not allowed to live with men outside marriage and doing so meant that the girl had a bad character which could lead to society torturing them. When asked to explain what she meant by “torture” the applicant replied that this means “telling bad things about the girl, especially who lives with the man without getting married. And once it happens, for the girl it is impossible to get another boy or get married again.”

7    The delegate concluded that the harm feared by the appellant did not amount to persecution. The delegate was not satisfied that the appellant had a real chance of being persecuted for a Refugees Convention reason (Migration Act 1958 (Cth), s 36(2)(a)), or that there was a real risk that the appellant would suffer significant harm if returned to Nepal (Migration Act, s 36(2)(aa)).

8    On 3 August 2012, the appellant applied to the Refugee Review Tribunal (“the RRT”) for review of the delegate’s decision. On 18 October 2013, a hearing took place before the RRT and on 21 October 2013 the appellant was notified of the RRT’s decision to affirm the decision of the delegate. In that decision the RRT recorded:

19.    I am satisfied, and accept, that the applicant has been truthful about her de facto marriage and the consequences for her to date with regard to her relationship with her parents, extended family and members of her community in [location].

20.    In considering whether she has a well-founded fear of being persecuted for a Convention reason as a result, I note her evidence, which I accept, that despite their being upset with her her parents care about her and are likely to allow her to live with them if she returns to Nepal.

21.    I have no doubt that it is a matter of discomfort to her parents that she chose to live with a man outside of marriage, and that the relationship was never made “respectable” in their view by marriage. I accept that she is very distressed about this situation and feels she has brought shame on her family.

22.    I also accept that she will be the subject of some gossip and disapproval by those members of her extended family and of the local community who know of her history.

23.    As to whether the harm she fears can reasonably be characterised as persecution, persecution involves serious harm and systematic and discriminatory conduct. “Serious harm” includes a threat to the person’s life or liberty; or significant physical harassment of the person; or significant physical ill-treatment of the person; or significant economic hardship that threatens the person’s capacity to subsist; or denial of access to basic services, where the denial threatens the person’s capacity to subsist; or denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

24.    On the basis of the applicant’s account I am satisfied that she was not subjected to harm amounting to persecution during her visit to Nepal in 2010 by people who were aware she was living with her boyfriend at the time. That may be in part because of their expectation that she would soon normalise this arrangement by marrying him. The question therefore is whether the fact that she did not do so might lead to a real chance of her being subjected to treatment amounting to persecution if she returns to Nepal.

25.    She continues to be in regular contact with her parents. She indicates that they love her. Neither they nor anyone in her extended family or in the community has expressed any intention to her or her family of harassing, ill-treating or harming her in any way. She does not claim that she might face significant economic hardship, or denial of basic services, or denial of capacity to earn a livelihood, threatening her capacity to subsist. While I accept that she may be subjected to some discrimination from time to time because of perceptions about her respectability, I am not satisfied that even taken cumulatively there is a real chance this would amount to persecution in the Convention sense.

26.    She anticipates suffering “mental torture”, and I am satisfied she may suffer mental distress if she returns to Nepal, in part (as she said) because of “people’s talk” and in part because she feels remorse about bringing her family’s name into disrepute. She did not claim that “people’s talk” would be anything more than gossip and innuendo, and did not indicate that it would rise to a level of verbal abuse. I am satisfied that the harm of which she may be said to have a “well-founded fear” does not constitute persecution.

27.    For these reasons I am satisfied that she does not have a well-founded fear of being persecuted in Nepal for one of the Convention reasons.

9    The RRT also was not satisfied that the appellant faced a real risk of significant harm so as to qualify for a protection visa on the “complementary protection” grounds in s 36(2)(aa) of the Migration Act.

10    The appellant then made an application to the Federal Circuit Court of Australia (“the FCCA”) for judicial review of the decision of the RRT. The application to the FCCA was filed out of time but on 24 February 2015 the FCCA ordered that time be extended. The application was heard on 24 February 2015 but by decision given on 5 March 2015, the FCCA dismissed the application (SZTOK v Minister for Immigration & Anor [2015] FCCA 446).

11    The grounds of judicial review which were finally pressed before the FCCA were recorded by the FCCA as follows:

9.    In her amended application the applicant alleged:

3.    The Second Respondent made jurisdictional error by constructively failing to deal with the Applicant’s claim to fear harm even death from family, relatives and society.

4.    The Second Respondent misconstrued the Applicant’s pre-hearing claims by stating at [31] that prior to the hearing the Applicant had stated that she did not fear being arbitrarily deprived of her life whereas in fact the Applicant had made claims at CB 8 and 9 directly opposite to this.

10.    The first and second allegations made in the amended application were not pressed.

12    Before the FCCA, the appellant took issue with the way in which the RRT had dealt with her claims and submitted that the RRT had failed to deal with her claim that she might be killed because of her conduct. The FCCA discussed these matters as follows:

11.    As refined in written submissions, the argument raised by the applicant in the third ground of the amended application was that she:

… had claimed that society would “punish” her, even possibly kill her: CB 9. The RRT simply had not dealt with this.

…

The only qualification she expressed to this claim at the hearing was at [11] that her “parents” had never threatened her. This did not deal at all with the claim that she feared other relatives and society generally might kill her or harm her.

At the hearing of this application the applicant’s case was narrowed further to rely only on her claims concerning Nepalese society.

12.    The applicant referred to statements which she had made in her protection visa application that:

… I fear of my life …

… My family, relatives and society … will punish me …

… The girl has to face punishment from family, relative and society …

… Sometimes, the punishment would be the death. …

13.    The applicant submitted that at no point had she abandoned her claim to fear that she would suffer harm and even death in Nepal because she had been in a de facto marriage. However, the Minister submitted that, in fact, that was precisely what the applicant had done as early as her interview with the delegate who recorded her claims in the following terms:

[the FCCA then set out the matters from the decision of the delegate which I extracted earlier]

14.    In addresses the applicant argued that although the form her claim had taken before the Tribunal was different from the form in which it had been presented in her visa application, the Tribunal had been obliged to consider both expressions of her claim and that by dealing only with the later one it had erred. She submitted that she had not (expressly or by necessary implication) abandoned her claim to fear being killed and the Tribunal should have considered it.

13    The FCCA discussed the appellant’s contentions in some detail. It observed (at [15]) “… the harm the applicant claimed to fear changed over time and I accept that by the time she was interviewed by the delegate she no longer claimed to fear being killed”. The FCCA observed that it was apparent from the decision of the RRT that it put a direct question to the appellant about the harm she claimed to fear from the local community and that:

17.    … her response to the Tribunal in relation to the reaction from her local community was to the effect that:

… no one would respect her and there would be a lot of backbiting. She would not be accepted as a normal person. Other family members would not speak to her properly because of what had happened. By this she meant they would distance themselves from her and not be responsible for her.

18.    What that exchange demonstrates is that the Tribunal put to the applicant the claim on which the present allegation is based and that, in response, she indicated that the harm she claimed to fear from the Nepalese community beyond her family was different from the harm she had originally claimed to fear.

14    Moreover, the FCCA pointed out that the appellant was “professionally represented” before the Tribunal and that:

24.    It is also important to note in this connection that there is no evidence that the applicant or her representative, having received the delegate’s decision record, sought to revive before the Tribunal the original form of her claim concerning her local community. In the absence of compelling reasons to conclude otherwise, where an applicant is professionally represented, as was the case here, it must be assumed that the claims which the applicant wished to make before the Tribunal were the ones expressly articulated by him or her and his or her advisers and that any arguable claims which were not expressly articulated were not pressed. If a represented applicant has not pursued an issue, then that is his or her election: SZRPA v Minister for Immigration & Citizenship [2012] FCA 962 at [10] and [26]; SZQFR v Minister for Immigration & Citizenship [2013] FCA 574 at [57]; SZSHK v Minister for Immigration & Border Protection (2013) 138 ALD 26 at 35 [37]. Moreover, as it is a matter of the applicant’s choice the Tribunal need not, contrary to the applicant’s submission, comment on or enquire after the fact that a claim has been abandoned. Relevantly, its obligation is only to consider the claims which are on foot at the review stage.

25.    I find that the Tribunal did not err by reaching its decision based on the form in which, at its hearing, the applicant had pressed her claim.

15    As the FCCA pointed out, the RRT did in fact refer in its decision to the question whether, in the proceedings before it, the appellant claimed to fear that she would be killed as she had originally stated in her claim for a protection visa. The Tribunal referred to the original claims of possible death or torture as follows:

11.    Although she said that in many cases in Nepal girls have been “punished to death” by their family or relatives for having an affair or living with a man outside marriage and that the authorities cannot protect her, and very few people have been arrested for punishing women like her, she also said that her parents have never threatened her. She is still in regular and frequent contact with them. She has not been ostracised by them.

…

13.    Of her treatment in the community, she said she would be tortured, by which she meant people would say bad things about a girl who had lived with a man to whom she was not married. For girls like this, it was impossible to “get another boy or get married again”. During her visit to Nepal some members of the community had mentioned to her mother the issue of the applicant living with her boyfriend in Australia. However they had been courteous to the applicant throughout her visit.

…

15.    Asked what she was concerned members of the community might say or do if she returned to [location], she said that no one would respect her and there would be a lot of backbiting. She would not be accepted as a normal person. Other family members would not speak to her properly because of what had happened. By this she meant they would distance themselves from her and not be responsible for her.

…

31.    The applicant confirmed that she does not fear being arbitrarily deprived of her life or facing the death penalty. She has referred to suffering “mental torture”, and I have accepted she may suffer some distress, which she may interpret as “mental torture”, if she returns to Nepal. However, where this flows from feelings of remorse about bringing her family’s name into disrepute I am not satisfied that the required element of intention by others is present. Where it flows from “people’s talk”, there is insufficient evidence to enable me to be satisfied that this might be “significant harm” as it is defined above.

16    The FCCA concluded that the RRT did not misapprehend the appellant’s claims.

17    The appellant has now appealed to this Court. The grounds of appeal are as follows:

1.    His Honour erred at [24] as to the significance of the Appellant having a Migration Agent present at hearing in relation to whether a claim had been made by an Applicant in her protection visa application and not abandoned at hearing.

2.    His Honour erred by confusing claims where the alleged persecutor would be the family of the Appellant and claims in relation to other members of society.

3.    His Honour erred by finding that (in the absence of any finding that the Appellant had abandoned any claim made in the protection visa application) evidence at hearing by the Appellant “relieved” the Second Respondent of its obligations to make findings in relation to the claims made by the Appellant.

4.    His Honour erred by not finding that the Second Respondent made error in relation to its findings on complimentary protection in respect of which it failed to have regard to the Appellant’s claims made in the protection visa application and not found by the Second Respondent to have been abandoned.

18    In my view, there is no substance in any of these grounds of appeal. The FCCA was critical in some respects about the brevity of the RRT’s reasons for decision but seemed to have no real difficulty in concluding that no jurisdictional error on the part of the RRT had been established by failing to deal with aspects or integers of the appellant’s claims. The findings of the delegate, to which I referred earlier, made it important that the appellant deal directly before the RRT with any contention that the delegate had misunderstood or misstated the way in which she put her claims.

19    In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, the High Court said (at [35]):

35    The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

(Emphasis added.)

20    The decision of a delegate and the reasons given for that decision are, therefore, not to be dismissed or disregarded as merely an intermediate procedural interlude, so that the RRT is required to give fresh attention to the original claims as though consideration and decision by the delegate did not occur. The RRT is not bound by the decision or approach of the delegate; nor is a visa applicant. However, some positive step must be taken to depart from the parameters established before the delegate and by the delegate’s decision. That obligation falls on the RRT as a matter of procedural fairness (see SZBEL at [43]-[44]). It may also be a significant procedural imperative for a visa applicant.

21    The RRT’s decision makes it apparent that the appellant put her claims to the RRT in a similar fashion to the matters put before the delegate. Those claims, so far as they went, appear to have been accepted but they are not claims which satisfied the requirements for the grant of a protection visa either by reference to s 36(2)(a) or by reference to s 36(2)(aa) of the Migration Act.

22    I agree with the FCCA that it has not been established that the RRT failed to consider elements of the appellant’s claims. I see no appealable error in the decision of the FCCA and no jurisdictional error in the decision of the RRT. It follows that the appeal to this Court should be dismissed. It is appropriate to dismiss it with costs.

Associate:

Dated:    27 August 2015