SZCPF v Minister for Immigration & Citizenship [2008] FCA 237

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: Flick J

DATE: 4 March 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The Appellants as named in the Notice of Appeal in the present proceedings are husband and wife. Both are citizens of India. In March 2003 the wife applied for a Protection Visa claiming to be a refugee. She claimed that she had been mistreated by her parents-in-law, her local community and others because of her relationship with her husband. Her own parents had approved of her marriage — but his did not — and, as a result, both moved into her parent's home prior to marriage. The husband's family and the local community accused both of them of improper behaviour. The husband initially made no claim to be a refugee. 2 In July 2003 the wife's application was refused. An application for review was then filed with the Refugee Review Tribunal. The Tribunal affirmed that decision in December 2003 but that decision, by consent, was set aside by the Federal Magistrates Court in March 2006. In August 2006 a differently constituted Tribunal again affirmed the decision not to grant the now Appellants Protection Visas. That Tribunal proceeded upon the basis that it could consider claims subsequently advanced by the husband to be a refugee but concluded that the "applicants do not have a well-founded fear of Convention-related persecution in India". That Tribunal concluded that merely being a Muslim in India did not give rise to a well-founded fear of persecution. It further concluded that if the now Appellants were to return to India, it was unlikely that any further serious allegations might be made about the legality of the marriage or about the wife's general propriety. 3 In November 2007 the Federal Magistrates Court dismissed an application seeking to impugn the August 2006 decision of the Tribunal: SZCPF v Minister for Immigration [2007] FMCA 1859. The Appellants in their Notice of Appeal identified as follows their Grounds of Appeal: 1. Federal Magistrates Court drop my main application submitted on 16 Oct 2006 and told to rely on Further amended application submitted on 27 Feb 2007. 2. [blank] 3. For my further amended application they considered as my main application. 4 A distinction is obviously sought to be made by the Appellants as between the "main application submitted on 16 October 2006" and their "Further amended application submitted on 27 Feb 2007." 5 The First Appellant appeared unrepresented before this Court this morning on the hearing of the appeal. An interpreter was provided but she elected to address the Court in person. 6 What is described as the "main application" sets forth the Grounds on which relief was initially sought in the Federal Magistrates Court as follows, employing the phraseology used by the draftsman : The Tribunal exceeding its jurisdiction and constructively failed to exercise its jurisdiction by failing to refer to or make any findings on the following aspects of the Applicant's case in view of her fear of the Indian authorities and the local Muslim Panchayet- (1) That the Applicant being a Muslim woman, the Panchayet and the Muslim community found her guilty for accommodating her husband at her residence before her marriage. (2) Failed to see the possibility and the probability of the Applicant facing abduction and forced marriage against her wish to another person for not complying with the orders of the Panchayet and thereby the Applicant facing persecution on her return back to India. (3) The Tribunal's failure to accept that the persecution the Applicant faced involved serious harm including threat to life and significant physical harassment as she had accommodated her husband at her home before marriage being a Muslim woman. (4) That the serious harm including rape and forced marriage to foreigners the Applicant would face, after being abducted by the authorities and the Panchayet as threatened when she returns back to India. (5) Failed to provide an interpreter who understood her language and continued with the second interview even after the Applicant complained to the Member that she had difficulties in understanding and clearly answering to, the Member's questions through the interpreter. The Member acted in prejudice and with bias when conducting the interview. (6) Failed to consider the Applicant's husband's inability to sponsor her due to his restrictions on the student visa he was holding at that time. 7 The Amended Application as filed on 27 February 2007 in the Federal Magistrates Court did not attempt on its face to separately set forth grounds as opposed to, for example, the relief claimed. The text of that Amended Application, including the bold type and again employing the phraseology used by the draftsman, stated in terms: 1. Tribunal unreasonably failed to understand that I tried to relocate to another part of India but failed to lead a life without persecution, further failed to consider that my parents taken me to others parts of India to save my life. 2. RRT overlooked the MRT decision of husband (submitted file at the time of hearing) which was not considered by DIMA and RRT didn't considered. 3. RRT ignore the current situation of my social and economical hardships being a Sunni Muslim woman against the Sunni strict customary laws and the authorities. 4. Tribunal ignore the fact I can't rely on my husband even the lawyer from Delhi stated that . 5. RRT ignored the facts of fatwa issued over the marriage, and the marriage already dissolved. 6. The lawyer from Delhi failed to provided complete information to RRT about the Sunni Muslim laws, as Indian Muslim has no uniform civil code , that is equal law to Muslim woman. 7. The lawyer from Delhi gave her general view and RRT failed to have complete information about Sunni Muslim laws. 8. The lawyer failed to provide the facts that court and the authorities doesn't interfere the Muslim religious laws. 9. Tribunal says I did not get killed while staying in India, its means I have to get killed and made me nervous, mentally upset the rest of the hearing. 10.Tribunal fail to understand about the police checks how the ordinary people now and then picked up and locked up tortured harassed by the police merely saying for security reasons. 11.Tribunal member fail to understand that my family could face such situation by the authorities. 12. Tribunal Member fail to understand that Indian Law does not interfere in the Sunny Muslim religious customary laws and Fatwa's and the couple had to stay in the Indian community and face terrible consequences. 13. Tribunal completely ignored the fact of being a defame Sunni Muslim couple had to live peacefully among the Muslim community. 14. Tribunal fail to understand the difference of English education does not save the life of Sunni Muslim couple against the Sunni Muslim religious customary law. 15. The lawyer from Delhi ,India had not stated about the Sunni Muslims customary laws. 16. Tribunal fail to obtained the information about the Sunni Muslim religious customary laws. 17. Tribunal ignored the risk factors that are conventional related the couple has to live in the Indian community after accepting the Sunni Muslim laws to avoid harassment, threats, kidnapping fear of rape from the hooligans, thugs and fear of getting killed . 8 The difference between the "main application" and the Amended Application was explained by the First Appellant this morning as being: (i) the fact that the Amended Application focussed attention more upon her husband's case than her own; and (ii) the fact that the "main application" raised as a discrete ground a failure to provide an interpreter and the absence of any such ground in the Amended Application. 9 A difficulty confronting the First Appellant is the statement by the learned Magistrate in her Honour's reasons that "[t]he Applicant wife confirmed that she relied upon an amended application filed on 27 February 2007". In the absence of any evidence upon which any contrary conclusion should be reached, this statement of the Federal Magistrate should be accepted. Indeed, even in the absence of any such statement, it would otherwise have been assumed that consideration would have been given by the Federal Magistrates Court to the content of what purported to be an "Amended Application". 10 The First Appellant before this Court asserted, however, that the Federal Magistrate presented her with no choice other than to proceed upon the basis of her Amended Application. She asserts, as it is understood, that the Federal Magistrate indicated that in the absence of a transcript as to what occurred before the Tribunal, the "main application" could not succeed or be further entertained. No objection was rightly taken by the Respondent Minister to these statements made by the First Appellant being regarded as evidence as to what transpired before the Federal Magistrates Court. If accepted, the statements of the First Appellant do not challenge the statement made by the learned Magistrate; those statements merely provide an explanation as to why she "confirmed" her reliance upon the Amended Application. 11 The primary submission of the Respondent Minister was that there was no reason to not accept as conclusive the decision made by the Appellants as to the case they sought to advance before the Federal Magistrates Court. That submission is accepted. 12 In accepting the submission, however, it should be noted that it is of fundamental and obvious importance that there is certainty as to the case sought to be advanced for resolution. Unrepresented litigants present special difficulties both by reason of their being unrepresented and by reason of considerable uncertainty as to the effect of what are frequently badly drafted grounds of review or appeal and, it is suspected, inadequate or poor or erroneous advice. Difficulties being confronted may include a lack of familiarity with Court procedures and understandable stress and tension occasioned by attendance in court and the importance of the case being advanced. A lack of certainty at the outset may only occasion subsequent confusion or be productive of unnecessary later argument. 13 The acceptance of the Minister's primary submission necessarily dictates that the Notice of Appeal to this Court, as presently drafted, should be dismissed. The application as made to the Federal Magistrates Court in reliance upon the "amended application" was the application then in fact relied upon and then resolved. There has been no erroneous "dropping" of any application. Even had a ground of appeal been drafted which attempted to impugn the conclusions reached in respect to the challenge made by the "amended application", any such attempt, it is considered, would also have been rejected. The conclusions of the Federal Magistrate were: [9] The Applicant wife made no meaningful submission in support of any of the paragraphs referred to in her amended application as disclosing any error capable of review by this Court. It is plain that the amended application is a disagreement with the findings and conclusions of the Tribunal and therefore seeks merits review which this Court cannot undertake. … [16] The findings and conclusions made by the Tribunal were open to it on the evidence and material before it and for which it provided reasons. [17] The decision of the Tribunal is not affected by jurisdictional error and is therefore a private clause decision. Accordingly, pursuant to s.474 of the Migration Act 1958 (Cth) this Court has no further jurisdiction to interfere. These conclusions reached by the Federal Magistrate in respect to the "amended application" were conclusions open to her Honour and disclose no error. 14 Separate consideration, however, has been given to the oral explanation provided to this Court this morning by the First Appellant as to the manner in which the Federal Magistrates Court proceeded to resolve the Amended Application and not the "main application". The "main application", it has been concluded, was not advanced before the Federal Magistrate for resolution. But, with one possible exception, it is not considered that any different conclusion would have been reached even had it been pursued. Paragraphs (1) to (4) of the "main application" and ground (6) clearly invited the Federal Magistrate to impermissibly revisit the factual merits of the decision entrusted to the Tribunal. And, in any event, those grounds were largely embraced by the issues in fact resolved by the Federal Magistrate. A reading of the decision of the Tribunal discloses no "prejudice" or "bias". A reading of the decision discloses nothing other than a careful and detailed consideration of the evidence and submissions raised for resolution. 15 The one exception is the contention that the alleged failure to provide an interpreter in some manner vitiated the proceedings before the Tribunal. A failure to provide an interpreter potentially could have been framed in terms of a denial of procedural fairness. The Respondent Minister did not oppose a course whereby that contention was to be now resolved by this Court. On appeal this Court can entertain a ground not previously relied upon. It can do so, in summary form, where it is "expedient in the interests of justice to do so": VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [46] per Kiefel, Weinberg and Stone JJ. 16 Any possible prejudice to the First Appellant occasioned by the Federal Magistrates Court not resolving, for whatever reason, the contention as to the failure to provide an interpreter could be addressed by allowing the First Appellant to now raise a ground of appeal in the form of that previously set forth in her "main application", namely a ground that the decision of the Tribunal was vitiated by a: Fail[ure] to provide an interpreter who understood her language and continued with the second interview even after the Applicant complained to the Member that she had difficulties in understanding and clearly answering to, the Member's questions through the interpreter. That application was made orally by the First Appellant. 17 The application to amend, however, is rejected for either of at least two reasons. First, it is considered that the ground is without substance. The reasons for decision of the Tribunal record: CLAIMS AND EVIDENCE The Tribunal has before it the Department's file relating to the applicants. The Tribunal also has had regard to the material referred to in the delegate's decision, and other material available to it from a range of sources. The applicants appeared before the Tribunal as now constituted on 12 May 2006 to give evidence and present arguments. An Urdu-speaking interpreter was present. However the Tribunal adjourned the hearing because that interpreter's language abilities were inadequate. The hearing resumed later that day with another interpreter. Unfortunately, that interpreter also proved to be inadequate. The hearing was then re-scheduled to, and was completed on, 31 May 2006. [The First Appellant] expressed no objection to the new interpreter and the Tribunal was satisfied that his professional skills were of the required standard to enable the hearing to be conducted. This account by the Tribunal would indicate that any prejudice asserted by the First Appellant is without substance. 18 Second, if leave were granted to allow that additional ground, it is understood that the First Appellant would wish to now contend that that explanation provided by the Tribunal also fails to correctly record what transpired before the Tribunal. Her contention is that she did not object to the interpreter provided on the first two occasions but did object on the re-scheduled hearing. Leave to amend to raise a new ground may be refused where the new ground requires additional evidence to be adduced. See: NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134 at [77], 147 FCR 51 at 68. 19 Not only do these two factors indicate that leave to amend should be refused; they also support a conclusion that no prejudice has been occasioned to the First Appellant by the learned Magistrate not considering the "main application." Even had the "main application" been considered, it is not considered that there is any real prospect that the outcome would have been any different. Any real prospect of success would depend upon rejecting the account given by the Tribunal. There was no transcript of the Tribunal proceedings available before the Federal Magistrate and, in the absence of a transcript, it is unlikely that the account given by the Tribunal would have been rejected by that Court or, for that matter, this Court. 20 A further issue which at one stage arose for resolution was the fate of the Appellant husband's application. Had this issue been pursued, questions would have arisen as to whether the Tribunal and the Federal Magistrates Court should have entertained that application, being an application advanced by the husband for the first time before the Tribunal. 21 The application was, in any event, considered by the Tribunal and rejected. The Federal Magistrate concluded that there was "no need to disturb the RRT's findings in this regard". 22 Shortly before the hearing of the appeal, namely on 29 February 2008, the appellant husband filed a Notice of Discontinuance of his appeal. Order 52, r 19 of the Federal Court Rules 1979 (Cth) provides as follows: Discontinuance of appeal (1) An appellant may file and serve a notice of discontinuance: (a) at any time before the hearing of the appeal, without the leave of the Court; or (b) at the hearing, or after the hearing and before judgment is pronounced or made, with the leave of the Court. (1A) If a notice of discontinuance is filed and served under subrule (1), the appeal is abandoned. (2) The notice of discontinuance filed by an appellant under subrule (1) does not affect any other appellant in the appeal. (3) A party filing a notice of discontinuance under subrule (1) shall be liable to pay the costs of the other party or parties occasioned by the appeal. (4) A party whose costs are payable under subrule (3) may tax the costs and if the taxed costs are not paid within 14 days after service of the certificate of taxation may enter judgment for the taxed costs. Rule 19(1)(a) thus provides that the appellant husband does not require the leave of this Court to discontinue; Rule 19(3), however, provides that by filing his notice of discontinuance he thereby becomes liable to pay costs. 23 Given the discontinuance of the appeal by the appellant husband, and the fact that the appeal is to be dismissed with an order that the Appellants are to pay the costs of the First Respondent, the correctness of the approach of the Tribunal and the Federal Magistrates Court need not be further considered.