SZUMF v Minister for Immigration and Border Protection [2017] FCA 143

FEDERAL COURT OF AUSTRALIA

SZUMF v Minister for Immigration and Border Protection [2017] FCA 143 Appeal from: SZUMF v Minister for Immigration & Anor [2016] FCCA 2528

File number(s): NSD 1576 of 2016

Judge(s): GREENWOOD J

Date of judgment: 24 February 2017

Catchwords: MIGRATION - consideration of an application for an extension of time for the filing of an appeal from the Federal Circuit Court of Australia pronounced on 18 August 2016

Legislation: Migration Act 1958 (Cth), ss 36(2)(a) and 36(2)(aa)

Date of hearing: 16 February 2017

Date of last submissions: 16 February 2017

Registry: Queensland

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 29

Counsel for the Applicant: Applicant appeared in person

Solicitor for the Respondents: Sparke Helmore Lawyers

ORDERS NSD 1576 of 2016

BETWEEN: SZUMF Applicant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: GREENWOOD J DATE OF ORDER: 24 FEBRUARY 2017

THE COURT ORDERS THAT:

1. The application of the applicant filed on 19 September 2016 is dismissed. 2. The applicant pay the costs of the first respondent of and incidental to the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GREENWOOD J: 1 These proceedings are concerned with an application for an extension of time to appeal from a decision of the Federal Circuit Court of Australia pronounced on 18 August 2016 dismissing the applicant's application for the grant of the constitutional writs by way of judicial review concerning a decision of the Administrative Appeals Tribunal (although at the time of the decision the Tribunal was described as the Refugee Review Tribunal for the purposes of the subject matter before that Tribunal) (the "Tribunal"). The Tribunal decided that it could not be satisfied that the applicant is a person to whom Australia has protection obligations for the purposes of s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth) and regulations made under that Act. 2 By r 36.03(a) of the Federal Court Rules 2011, the applicant was required to file a notice of appeal within 21 days of the date on which the judgment was pronounced by the Federal Circuit Court. Thus, the applicant was required to file an appeal by 8 September 2016. The present application for an extension of time was filed on 19 September 2016. It is 11 days out of time. 3 I accept that the principles which govern whether time ought to be extended include: the length of the delay involved; the explanation for the delay given by the applicant; the prejudice to the Minister; and an assessment of the merits of the proposed appeal. 4 The length of the delay is correctly described as modest. It is only 11 days. The prejudice to the Minister is accepted by the Minister as minimal and the Minister also accepts that any prejudice is limited to "being required to defend an unmeritorious appeal". The explanation for the delay is set out in the applicant's affidavit of 15 September 2016 in which she says that she failed to file a notice of appeal within the time required because she was "trying to arrange the legal fees to hire a lawyer and filing fees and I was unable to arrange the money before the deadline": paras 2 and 3, affidavit affirmed 15 September 2016 and filed on 19 September 2016. 5 The Minister says that the explanation is unsatisfactory and insufficient. However, although reasons for the delay must, of course, be properly explained, the real question is whether the proposed grounds of appeal have any arguable merit so as to warrant an extension of time being granted so as to enable the applicant to prosecute her proposed appeal. 6 As to that, the applicant seeks to agitate two grounds of appeal which are said to demonstrate error on the part of the primary judge: Judge Cameron, SZUMF v Minister for Immigration & Anor [2016] FCCA 2528. 7 By the first proposed ground, the applicant says that the primary judge erred in failing to find that the Tribunal fell into jurisdictional error by failing to consider a claim made by the applicant before the Tribunal that she held a well-founded fear of persecution and would suffer harm by reason of the patriarchal Nepalese society in which she would live should she return to her country of nationality. Her circumstances as a "divorced single woman who had particular vulnerabilities" were said to engage consequences for her as a result of which she would suffer harm arising out of patriarchal attitudes of ostracism and rejection of a woman in such circumstances. She says that the Tribunal failed to "engage with the claims/integer of 'patriarch[al] society'". She says that the Tribunal failed to address her contention that she would be ostracised "at the hands of 'patriarch[al] society'" and thus the Tribunal failed to address a "relevant consideration". 8 By her second proposed ground of appeal, the applicant says that the primary judge erred in failing to find that the Tribunal fell into jurisdictional error by finding that "claims of threats from Maoists was [a matter of] recent invention or embellishments when the Applicant has made the claims from the outset". The applicant says that the Tribunal's notion that these claims were matters of "recent invention" cannot be correct because the claim that she would "suffer at the hands of the Maoist[s] was before the delegate" and such claims were made "from the outset" and were contained "clearly in the Applicant's written claims". 9 On 19 August 2016, the applicant filed an amended application before the Federal Circuit Court of Australia. In that application, Ground 2 is in precisely the same terms as Ground 2 of the appeal. At [7] of the reasons, the primary judge notes that Ground 2 was "not pressed" before the Court below. The appellant was represented before the Federal Circuit Court by Mr T. Soeryoatmodjo of Weighbridge Lawyers. There can be no error on the part of the primary judge in failing to find jurisdictional error on the part of the Tribunal in respect of a ground expressly abandoned before the Federal Circuit Court of Australia. 10 As to the first ground of appeal concerning the contended error on the part of the primary judge in failing to find contended jurisdictional error on the part of the Tribunal (in failing to address the applicant's contentions of persecution giving rise to significant harm at the hands of patriarchal ostracism of a single divorced woman who is said to be suffering particular vulnerabilities), the applicant contended for the following matters before the Tribunal. 11 On 29 June 2007, the applicant, a Nepalese citizen then 20 years of age, married her husband. He was a Brahmin and a person of a higher caste than her. She arrived in Australia on 13 July 2008 with him as his dependent in reliance upon a "Student 572 (Dependent) Visa". She contended that she had been abandoned by him after four years in Australia. She contended that should she return to Nepal as a single woman, abandoned by her husband with no support from her estranged family, she would face social stigma, economic hardship and physical and mental torture. 12 The applicant also claimed to fear harm from Maoist sympathisers. 13 She contended, before the Tribunal, that she feared harm from her own "abusive father" and feared harm from ["her husband's parents and relatives"]. The Tribunal notes her contention that she feared harm from the Maoists because of her sympathetic views towards the Monarchy. She said that in respect of these sources of fear, she would suffer rape, sexual and physical harm "because she is a woman expelled from her family": Tribunal decision ("Td"), para 9. That fear is thus confined to the matter described at [11] of these reasons. 14 She contended that she married her husband not long after they met in Kathmandu. The marriage occurred without obtaining the traditional blessings of their respective families. One claim made by the applicant was that the marriage occurred quite quickly after she was "beaten by her father at a family gathering": Td, para 11. As to the burden of inter-caste marriage, the Tribunal notes these matters at para 13: On inter-caste marriage the applicant said variously that it was not allowed at all in Nepalese culture and because her family were from a small village [Kuinemangale, Myagdi, Nepal] and very conservative, they believed that she should only marry within her caste; but also that she thought her father would accept her marriage to her husband, a Brahmin, because he was educated, from a good family and going to Australia for further study; and that it was not a problem for her husband at the time they married that she was of a lower caste, though "maybe later". 15 In the paragraphs of the Tribunal's decision mentioned already, it can be seen that the Tribunal recognised the dominant role of the applicant's father and the significance of his views to the family's acceptance of the contended marriage and his acceptance of his daughter in that marriage, within the broader family. 16 As to the post-marriage events, the applicant told the Tribunal that she lived with her husband for the first 11 months in a district of Kathmandu. This observation seemed anomalous to the Tribunal as she had said in her protection visa application that she lived in Myagdi (the local village) from March 1987 to July 2008. After arriving in Australia (Melbourne) in July 2008, she and her husband stayed together for only nine or 10 days. She said that she moved to Sydney for work (20 hours per week) to provide financial support for her husband. The applicant told the Tribunal that her husband's parents were not aware that they had gone to Australia together. She said that her husband lived alone because he did not want his parents to discover (through his friends) the true position. She said that he had not told his parents of the marriage: Td, para 15. The applicant told the Tribunal that her husband would see her in Sydney about once a month in 2008; only once in 2009 and once in 2010; and not at all in 2011. By this time, the applicant suspected (and was told) that her husband was engaged in other relationships. 17 The applicant contended that in March 2012 she and her husband returned to Nepal for several weeks. The purpose was to enable her husband to tell his family of the marriage and to: "sort it out with [the] family" and enable her and her husband to commence living together. The applicant contended that she stayed with her husband's family for two days from 27 March 2012 and was "abused" and that they "treated her badly". She described the conduct as "torture". She left and stayed with a friend (and the friend's family) in Kathmandu. She told the Tribunal that she could not return to her own family as she had been "disowned" by them "over her marriage". She and her husband returned to Australia (either together or separately). By August 2012 (several months after returning), her husband sent a message to her treating their state of separation as a separation, and that divorce papers would follow. Against that background, the Tribunal put to the applicant and explored its concern with her that the marriage may not have been genuine but simply a contrived arrangement for visa purposes: Td, para 18. 18 The central contention was then identified at para 19 in the Tribunal's decision in this way: The applicant said she could not return to Nepal as a single woman after being married to a man from a different caste and being overseas with him for five years. She said that there was "no space" for her at her home or anywhere else because she would be regarded in a negative way in the male-dominated society and no one would help her or support her so she would have to work "day and night" to survive and it would be difficult for her. Moreover, in spite of reports that the political situation in Nepal had improved, the applicant said the Maoists were still a problem in her village and she would be at risk if they found out she had spoken against them in Australia. [emphasis added] 19 The Tribunal notes at para 19 the contended relationship between negative views which would be held of her in the particular circumstances confronting her, on the one hand, and the cultural societal influence of male-domination in conditioning such views, on the other hand. 20 As to whether, first, the social stigma and second, the economic harm resulting from the economic hardship she said she would suffer, amounted to "serious and significant harm", the applicant contended that she would be tortured physically and mentally "as she had nowhere to live because she had lost the support of her family". 21 Moreover, she would not be safe anywhere in Nepal as Maoist influence was "still present in the village". 22 The reference to a Nepalese patriarchal society is expressly mentioned at para 23 of the Tribunal's decision in these terms: The applicant's adviser submitted that, whether or not the Tribunal believes that the applicant's marriage was one of convenience, the applicant had come to Australia with a man and [had] been here for eight (sic) years and turned to Nepal with [the] same man in 2012. If she returns to Nepal now, she will be doing so as a single divorced woman; who does not have the protection of her father or male relatives in a patriarchal society and, with only a Grade 9 education, will find it difficult to find suitable employment, will face discrimination and may be subjected to sexual harassment in the workforce. [emphasis added] 23 As to these matters, the Tribunal determined that it was not satisfied that the applicant was 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. Those claims of a well-founded fear of persecution for a Convention reason and a fear of a real chance of significant harm on return to Nepal were founded upon contentions of social and cultural stigma and ostracism and economic dislocation due to being abandoned to her husband in a culturally unacceptable inter-caste marriage; and by reason of the perceived conduct of the Maoists. 24 The Tribunal thought it "incongruous" that the applicant's husband would take a position that he was so committed to his potential wife and the marriage that he would marry the applicant, leave Nepal with her for Australia and put at risk his relationship with his own family yet then live together with her for only nine or 10 days in Melbourne and then choose to live separately and apart in different cities: Td, para 27. The Tribunal also thought it implausible that the applicant and her husband would return to Nepal in March 2012 (and that the applicant's husband would engage in the contended conduct in Nepal in March 2012) if he had been in a relationship with another woman since 2010 and was intending to leave his wife for that reason in any event: Td, para 28. The Tribunal found that the marriage was not a genuine marriage but one "contrived for migration purposes": Td, para 29. The Tribunal found that it was not satisfied that the applicant's contentions of adverse social, cultural and economic consequences for her in her relations with her own family and that of her "husband" were true or would arise. That followed because the marriage was one of convenience only for migration and entry purposes to and in Australia. The Tribunal said this at paras 30 and 31: 30. … The Tribunal is not satisfied that the applicant became estranged from her family or lost their support because she married a husband from a higher caste and notes her own equivocal evidence on this point at paragraph 13. Nor is the Tribunal satisfied that the applicant will be perceived as having been her husband's wife or dependent, other than for visa purposes; nor that she is now a "single divorced woman", who has been abandoned by him, especially as the Tribunal does not accept that they lived together either in Nepal or in Australia. The Tribunal does not accept that, as a result of this contrived marriage, the applicant will face social stigma, economic hardship and physical and mental torture if she returns to Nepal due to not having any support from her estranged family. Nor does the Tribunal accept that she will be a victim of rape, sexual abuse and physical harm because she is a woman expelled from her family, as claimed. 31. The Tribunal has had regard to the submissions by the applicant's adviser at paragraph 23, that whether or not her marriage was contrived, the applicant will be perceived as a single divorced woman, without the protection of her father or male relatives and suffer the hardships described but does not accept this for the reasons set out above. In any case, the Tribunal is not satisfied that these hardships amount to serious or significant harm, as envisaged in the Refugees or complementary protection criteria. The Tribunal also notes that while the applicant may only have a Grade 9 education, she has shown herself to be resourceful in living, finding paid employment and working for six years in Australia, a foreign country and culture, without the support of her husband. 25 It followed that there was no foundation in fact for the contended claims in the Tribunal's view and thus the Tribunal could not reach the required state of statutory satisfaction that the applicant held "a well-founded fear" of persecution for "one or more of the five Convention reasons", or, viewed specifically, due to reasons of a "lack of protection" in Nepal from her father or male relatives within a society structured on patriarchal lines. Nor could the Tribunal be satisfied that there is a real risk that the applicant will suffer significant harm should she be removed from Australia to Nepal. Thus, the Tribunal was not satisfied that the applicant is a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) of the Act. Nor could the Tribunal be satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa). 26 Once the foundation for the claim based on a patriarchal society fell away because the Tribunal could not be satisfied about those factual contentions, the Tribunal was not required to further examine the content of the claim separately and independently. The Tribunal recognised the content of the claim based on a patriarchal society arising out of the foundation facts and dispositively dealt with the contentions as to the underlying facts and, necessarily, all claims arising out of those facts. 27 The primary judge so found. 28 There is no error on the part of the primary judge in so finding. 29 The application for an extension of time and leave to appeal must be dismissed with costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.