A234/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1110

FEDERAL COURT OF AUSTRALIA

A234/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1110

MIGRATION – application for review of Refugee Review Tribunal decision affirming decision not to grant protection visa – whether Tribunal applied incorrect test to determine refugee status – where applicant claimed fear that her daughter would be subjected to circumcision – Tribunal found no subjective fear on the basis of mother's capacity to protect daughter from circumcision – application dismissed.

LEGAL PRACTITIONERS – conduct of legal practitioners

Migration Act 1958 (Cth)

Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 A234/2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS No S199 of 2003 LANDER J ADELAIDE 14 OCTOBER 2003

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 199 OF 2003

BETWEEN: A234/2003

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LANDER J

DATE OF ORDER: 14 OCTOBER 2003

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application is dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 199 OF 2003

BETWEEN: A234/2003

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LANDER J

DATE: 14 OCTOBER 2003

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This is an application for review of a decision of the Refugee Review Tribunal (RRT) made on 19 September 2001 in which the RRT affirmed the decision of the Minister's delegate to refuse to grant the applicants protection visas. 2 The decision was handed down on 12 October 2001. 3 In the first instance the applicant brought proceedings in the High Court of Australia seeking the issue of Constitutional writs. 4 The proceedings were brought more than 12 months after the decision was signed and nearly 12 months after the decision was handed down. 5 On 7 February 2003 Hayne J remitted the proceedings to this Court for hearing. 6 On 4 April 2003 Mansfield J made orders requiring the applicant to file and serve a notice of motion seeking an extension of time within which to file the proceedings and an affidavit of the applicant deposing to the reasons for delay in filing the proceedings in the High Court and the reasons why any extension of time should be granted. The affidavit was to be filed within four weeks. 7 The applicant did not comply with the order. On 10 June 2003 Selway J made an order requiring the applicant by 17 July 2003 to file and serve a notice of motion seeking an extension of time together with an affidavit explaining the reasons for the delay in commencing the proceedings and deposing to any reasons why an extension of time should be granted. He also ordered the applicant to file an amended application specifying precisely the error or errors upon which the decision under review was challenged. 8 The applicant did not comply with those orders. 9 On 1 August 2003 the applicant filed an amended application seeking a review. That application does not address the question of delay. 10 On 1 August 2003 I made an order extending the time within which the applicant had to comply with Selway J's order insofar as it addressed matters apart from the extension of time until 1 August 2003. I made a further order extending the time within which the applicant had to comply with that part of Selway J's order which was directed to the question of extension of time to 22 August 2003. 11 The applicant has not complied with my order. 12 Three Judges of this Court (Mansfield J, Selway J and I) have made orders directing the applicant to make appropriate applications and to file affidavits explaining the delay in bringing these proceedings and giving reasons why an extension of time should be granted. All three orders made on 4 April 2003 (Mansfield J), 10 June 2003 (Selway J) and 1 August 2003 (Lander J) were not complied with. 13 The decision which the applicant seeks this Court to review was made on 19 September 2001 and handed down on 12 October 2001. 14 At the hearing of this application the applicant's solicitor handed to the Court a notice of motion seeking an extension of time within which to bring the proceedings and an affidavit of the applicant in support. It was claimed those documents had been filed in the registry on 1 September but the copy made available in Court did not carry a registry stamp confirming their having been filed. I was prepared to accept that the documents had been filed. Even so, the documents were not filed in accordance with the terms of my order. No explanation has been given for the failure to comply with three orders of this Court. 15 The applicant is not resident in this State. However, she has chosen to use a solicitor who practices in this State and chosen to use this registry in which to bring these proceedings. In those circumstances the applicant can hardly say that being in Melbourne makes it difficult to instruct her solicitor. 16 I have no doubt that in some cases language difficulties make the giving and taking of instructions more difficult. That is not the case here. The affidavit which has been affirmed by the applicant is in the English language. There is no suggestion that it was interpreted to her or that it was read over to her prior to her signing. I must assume that she is quite capable of communicating in the sophisticated language in which her affidavit is drawn. 17 This Court is entitled to have its orders complied with. Orders and directions of this Court of the kind to which I have referred are made to facilitate the orderly disposal of the Court's business but more particularly to ensure procedural fairness to the parties involved in the litigation. 18 In the short time in which I have been a Judge of this Court this is not the first instance of a party seeking relief of the kind sought by the applicant, who is represented by a legal practitioner, failing to comply with the Court's orders and directions. Indeed, unfortunately, my experience is that it is common place that applicants seeking review of decisions of the RRT do not comply with the Court's orders. 19 I mention these matters so that those who have the responsibility of advising applicants seeking review of decisions of the Refugee Review Tribunal can advise their client of the need to comply with the Court's orders. 20 Matters are being adjourned because orders and directions are not being complied with. Not only do the respondents thereby incur costs but those adjournments also interfere with the orderly business of the Court. It means that other applicants in other cases have their hearings delayed. 21 If it is the fault of the applicant's adviser rather than the applicant then, consistent with the advisers' professional obligations, that should be brought to the attention of the Court. Those advisers should never leave the Court under the misapprehension that the failure to comply with the Court's orders was the fault of their clients if that is not the case. 22 It would be no explanation for an applicant's adviser to claim that the volume of work makes it difficult to comply with the Court's directions. If a solicitor has taken instructions from so many clients that the solicitor is unable to attend to each of those clients' matters with appropriate diligence and care, then the solicitor has an obligation to ensure that the client is directed to some other solicitor who does have that time. 23 There are many applications of this kind in the registry of this Court. Each applicant is entitled to individual care and attention and to have his or her matter attended to with the appropriate skill and care. No applicant should be treated as if all applications are the same when in fact each applicant has to establish individual circumstances if the applicant is to have any prospects of success. 24 Each applicant is entitled to be told very early after the engagement of their solicitors what their prospects of success are. Most of the applicants have been represented by migration agents all of whom, if registered, should have some degree of legal training: s 290(2)(b) Migration Act 1958 (Cth) and reg 5 Migration Agents Regulations 1998 (Cth). Those migration agents would have access to the papers necessary for the solicitors to give early advice on their client's prospects of success. 25 The applicants are entitled to know sooner rather than later whether they are entitled to refugee status and therefore entitled to remain in this country on either a temporary or permanent protection visa. They cannot know that until these proceedings have been completed and, if they are successful in these proceedings, a further review by the Refugee Review Tribunal has taken place. I have no doubt that the uncertainty with which these applicants live must make their lives whilst in Australia more difficult. They are entitled to be treated better. 26 The fact that this judicial review is being heard nearly 24 months after the decision complained of demonstrates, in my opinion, a failure either by the applicant or by the applicant's solicitors to bring these matters before this Court in a timely fashion. 27 In this case I have not required the applicant's solicitor to provide a detailed explanation for his client's refusal to comply with the Court's orders. In those circumstances it would be inappropriate for me to assume that the fault lay with his client. 28 Ordinarily it would be appropriate to first deal with the question of an extension of time. However, in this case I shall deal with the merits of the application to this Court because if I was satisfied that the applicant had not made out a case for judicial review then of course it would follow that I would refuse an extension of time within which to bring the proceedings. 29 The applicants are mother and daughter. The first applicant, who was born on 3 July 1968 and is a citizen of Egypt, arrived in Australia with her daughter on 6 March 1999. The second applicant was born on 9 March 1994. The first applicant travelled on a passport issued in Alexandra, Egypt on 23 January 1994 which was still valid when she entered Australia. 30 In December 2000 the applicants made an application for a protection (class XA) visa. The application was dated 15 December 2000 and was lodged with the Department of Immigration & Multicultural Affairs on 29 December 2000. 31 On 15 May 2001 the application was refused by the respondent delegate. 32 On 7 June 2001 the applicant applied for a review of that decision by the Refugee Review Tribunal (RRT). 33 It was the applicant's case that she was a refugee and came within the definition of refugee in Art 1A(2) of the Convention being a person who: '… owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of [her] nationality and is unable or, owing to such fear, is unwilling to avail [herself] of the protection of that country; or who, not having a nationality and being outside the country of [her] former habitual residence, is unable or, owing to such fear, is unwilling to return to it.' 34 The first applicant claimed that she was an Egyptian national and a Muslim although not of strong religious views. 35 She was educated for 13 years and completed the equivalent of an ordinary degree. She commenced work and married her employer. He was a Christian. Before they married he falsely convinced her parents that he had converted to Islam. She claimed that because she was a Muslim their relationship was forbidden under Egyptian Islamic law. 36 After they married they went to Athens where he had commenced a business. Whilst in Athens he demanded that she marry him in a Christian Church but she refused. 37 They returned to Egypt in 1991 when he told her that he wanted to divorce her and did, but the divorce was kept secret. For ease of identification, I will continue to refer to the applicant's 'husband'. 38 They returned to Athens where the business prospered. In 1994 she had a daughter. She claimed that her husband mistreated her, often in front of witnesses. 39 She claimed that in 1998 her husband suggested that they move to Australia but she refused because of the distance involved and because of his treatment of her. 40 That same year she travelled to Egypt with her daughter for a holiday and whilst she was there she was telephoned by her husband's niece to say that he had shipped all of the contents of the house and factory to Australia. 41 She returned to Athens and found the information to be correct. She remonstrated with her husband who beat her, so she decided to separate from him permanently. She returned to Egypt. He followed her and tried to kidnap her and her daughter. By this time she had learnt that he had been involved in some fraudulent activities and was the subject of investigations in Egypt. 42 She contacted an Egyptian friend living in Australia who advised her that she should travel to Melbourne with her daughter and so it was she arrived in Australia on 6 March 1999. She said her husband arrived a month later on a false passport. 43 She claimed that her husband had married an Australian woman in June 1999. Her husband's wife tried to persuade him to let the applicant and her daughter go but he would not do so. The applicant's former husband assaulted her again but his new wife and a friend intervened. He was arrested by the police, but the applicant lied to the police, so as to reduce his sentence. Eventually he was sentenced to four months imprisonment. His Australian wife then sought a divorce. 44 After his release from custody, the applicant's husband asked her to live with him again and eventually she agreed because, as she said, she had no money. 45 Although it is not entirely clear I think it is the applicant's case that the husband has returned to Egypt. 46 Her case before the RRT was that as a result of her relationship with her husband she had a well founded fear of persecution on the Convention grounds of her religion and her membership of a particular social group. Her case was that her husband would misreport what had happened in Australia, and in particular his imprisonment, and convince her family that she had brought shame on their family's honour. Her case was that her husband would tell her family that they had co-habited even after they were divorced. 47 She said that her family would become aware that the daughter was born after the secret divorce and that would be viewed very seriously. 48 Her case was that her step-brothers and brother-in-law would want to kill her for having brought shame to the family. She also feared for her daughter's safety. She has 12 brothers and sisters, six of them step-siblings. Her father died in 1994. 49 The RRT found that the applicants were Egyptian nationals with no right to re-enter Greece. It found that the applicant had been the victim of domestic violence. It also found that her relationship with her former husband had been most complicated. 50 However the RRT did not accept her version as to how the relationship came about. It also rejected her account that she did not know he was a Christian until she became emotionally attached to him. The Tribunal was not satisfied that all of her claims about her husband were genuine and concluded that her account was embellished. 51 The Tribunal noted the number of times that she travelled from Greece to Egypt and then voluntarily returned to her ex-husband. 52 The Tribunal was not satisfied that her account of her former husband's behaviour in Greece was accurate. 53 The Tribunal doubted her account of how she came to Australia. It observed the coincidence of her husband wishing to come to this country and her coming independently. It doubted that account. The Tribunal said: 'The Tribunal also has taken into consideration the applicant's evidence that she and her daughter travelled to Australia a month before he did. It is very difficult to explain why she would do so unless she intended to continue the relationship with her ex-husband. It does not accept her claim that she feared he would take her daughter from her if she did not do so. Again it points to her conclusion that alleged aposcate had much to lose from publicly exposing their unmarried state and his role in this. Any child from that relationship would legally be required to be raised as a Muslim. There is simply no chance that she would be given into the custody of an aposcate.' 54 The RRT rejected her account that she and her daughter could not safely return to Egypt because her ex-husband 'has revealed all to her family and the latter will seriously harm them, even kill them, because of what he said'. 55 It rejected her claim that her ex-husband had boasted of matters concerning his and the applicant's relationship because it would be against his own interests to do so. 56 The Tribunal found, contrary to her claim, that she would have the support of her own family. In those circumstances it rejected her claim that she feared persecution at her family's hands. 57 The RRT considered her claim that her daughter could suffer serious harm which amounted to persecution. It rejected the first applicant's claim that the daughter would be at risk of harm from the first applicant's family. 58 It then dealt with a specific matter raised by the applicant in relation to her daughter. It was the applicant's case that the daughter could be subjected to circumcision if she returned to Egypt. It was the applicant's case that female circumcision is a wide spread practice in Egyptian society. 59 The Tribunal said of this claim: 'The Tribunal has considered the applicant's claim that her daughter could be subjected to circumcision if she is returned to Egypt and that this is a practice which is widespread and effects the great majority of the female population. The Tribunal agrees that such acts are seen by non-practitioners as assaults against the person. It notes that there are international pressures for the practice to be ended. However, it also notes international pressures that various cultures have a right to maintain their own traditions. This is a point at which the individual values of western humanism clash with other, communal-based, values. In this case, the Tribunal notes that the child is being brought up within the Egyptian Muslim community and that her mother has taken her back to her home country on a number of occasions. That is, it has not featured as a major factor in the behaviour of the mother towards her daughter on past occasions. The Tribunal is not satisfied that this has been a significant factor in the principal applicant's reason for wishing to remain in Australia nor that she has tried to keep her daughter apart from those who practise it even in Australia. While the act of circumcision is repugnant to those outside the cultures which practise it, the Tribunal is not satisfied that it can, in this situation, be separated from the other factors which make it apparently desirable for the daughter to be brought up within her own culture. However, this does not mean that the child has no protection. The Egyptian government and its law do not demand the circumcision of women. There are protest groups and voices against the practice in Egypt itself, especially in Cairo where the principal applicant lived for some years. The child's mother is an educated, well-travelled person who could and should protect her daughter.' 60 It was this finding upon which the applicant relied for her claim that the Tribunal had been guilty of jurisdictional error. She claimed that the Tribunal asked itself the wrong question and therefore applied the wrong test in law. The applicant's case was that the Tribunal asked itself whether the Egyptian government and its laws demand the circumcision of women and whether the principal applicant could protect her daughter. The question that should have been asked, so the applicant argued, was whether the applicant daughter had effective state protection. Therefore it was the applicant's contention that the Tribunal had fallen into error. 61 In my opinion the applicant's contentions are founded on a misunderstanding or a misconception of the Tribunal's reasons and the evidence underlying those reasons. The Tribunal was obliged to consider the first applicant's claim that her daughter would suffer persecution in the nature of circumcision if she were returned to Egypt in the light of the claim by the applicant in a statutory declaration provided to the RRT. In that statutory declaration she said, after discussing other matters concerning her daughter and her daughter's relationship with her family: 'In addition, my family would force her to be circumcised as they forced me and all other female members of the family.' 62 The RRT was not considering a claim that Egyptian society generally would force circumcision upon the first applicant's daughter. It was considering a claim that the first applicant's family would inflict this practice upon the first applicant's daughter. 63 The Tribunal's reasons must be understood in that light. 64 In view of the claim which was made, the first matter which had to be considered was whether the applicant had a fear of her daughter suffering persecution. The Tribunal's finding was that she did not. The Tribunal found that the first applicant herself was in a position to prevent her daughter undergoing a circumcision. The Tribunal's finding was that the first applicant was sufficiently empowered by reason of her education and experience to protect her daughter. In those circumstances the first applicant could not have a fear of persecution. 65 In my opinion the RRT did not ask itself the wrong question. It asked itself whether, on the evidence before it, the first applicant had a fear of persecution for her daughter. It answered that question in the negative. Once that question was answered in the negative it did not need to ask whether that fear was objectively well founded. Nor did it need to ask the further question, if both those questions had been answered affirmatively, whether the applicant was unable or unwilling to call upon the State's resources to protect her daughter. 66 The first applicant did not cross the threshold test in the definition of refugee in Art 1A(2) of the Convention Relating to the Status of Refugees (Geneva, 28 July 1951) and in those circumstances could not satisfy the criterion prescribed for the grant of a protection visa by s 36(2) of the Migration Act 1958 (Cth). 67 In my opinion no jurisdictional error has been demonstrated on the part of the RRT. In those circumstances the application for a review of the RRT decision must be dismissed. I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.