FEDERAL COURT OF AUSTRALIA SZWAC v Minister for Immigration and Border Protection [2017] FCA 343 Appeal from: SZWAC & Anor v Minister for Immigration & Anor [2016] FCCA 2416 File number: NSD 1862 of 2016 Judge: NICHOLAS J Date of judgment: 1 March 2017 Legislation: Migration Act 1958 (Cth) ss 36(2), 425 Cases cited: Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473 Date of hearing: 1 March 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 22 Counsel for the Appellants: The appellants appeared in person with the assistance of an interpreter Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: Mills Oakley Counsel for the Second Respondent: The second respondent submitted save as to costs ORDERS NSD 1862 of 2016 BETWEEN: SZWAC First Appellant SZWAD Second Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: NICHOLAS J DATE OF ORDER: 1 March 2017 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The first appellant be ordered to pay the first respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (Revised from Transcript) NICHOLAS J: 1 The appellants' appeal is from the judgment of a Judge of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the second respondent ("the Tribunal") affirming a decision of a delegate of the first respondent ("the Minister") refusing to grant the appellants Protection (Class XA) visas pursuant to s 36(2) of the Migration Act 1958 (Cth) ("the Act"). 2 The first appellant is from Nepal. The second appellant is her daughter who was born in Australia in March 2010 to a Nepalese man. The first appellant arrived in Australia on 13 January 2009 as a dependent on a student visa ("the student visa") granted to a man I shall refer to as Mr S. The first appellant claimed to have married Mr S in Nepal shortly before they travelled to Australia, and to have lived with him here for about one week. In evidence before the Tribunal the first appellant claimed the marriage was fake and arranged only so that she would obtain a visa. 3 Mr S's student visa ceased in March 2011. In October 2013 the appellants applied for the grant of protection visas. Their applications were refused in April 2014. 4 In her evidence to the Tribunal the first appellant claimed that the second appellant's father was a man she met in Australia, who the primary judge referred to as Mr C, who she claims to have met some six months after she and Mr S arrived here. However, the second appellant's birth certificate showed Mr S as her father. According to the first appellant, she caused Mr S's name to be shown as the father on the birth certificate because Mr C did not want to accept or acknowledge the child to be his own. At the same time, however, she told the Tribunal that she continues to reside with Mr C, and that he supports her and the second appellant. 5 The Tribunal summarised the appellants' claim at [7] of its reasons. Broadly stated: The first appellant claims to fear harm in Nepal as a woman who had a child as a result of an extra-marital relationship. She fears being rejected by Nepali society generally and by her family because she has ruined their honour and reputation. She also fears her former husband, who I shall refer to as Mr P. She fears that he may harm her for being involved in sexual relationships with other men. She claims she will face "real harm" because she is a "single mother who produced a child out of wedlock". She also fears that as a "single woman from a male dominated society" she will "face sexual harassment and sexual assault" and that she will be forced into the sex trade. She also fears persecution in Nepal for reason of her membership of particular social groups characterised as: Nepali single mothers; Nepali single mothers without protection of a male relative; Nepali single women facing economic hardship and family violence; Nepali single mothers with an illegitimate child. 6 It was on the basis of these claims that the first appellant claimed to be a person whom Australia owed a protection obligation under the Refugees Convention, or under the complementary protection criteria of the Act. 7 The Tribunal said at [15] of its reasons that "[m]uch of the evidence … raised significant concerns going to the overall credibility of the first applicant as a truthful and reliable witness." Her evidence on matters relating to what harm she fears in Nepal and why was described by the Tribunal as "vague, changing and unconvincing". The Tribunal said at [12]: … having had the opportunity to review all the evidence before it, including having discussed the claims made with the first applicant for around two hours when she appeared before the Tribunal, the claims and evidence advanced impress the Tribunal as unreliable and lacking in credibility in multiple and significant respects. On the totality of the evidence advanced the Tribunal is unable to be satisfied of the truth or credibility of even the most fundamental of the first applicant's claimed circumstances and is not satisfied that either applicant is a person in respect of whom Australia has protection obligations. 8 The Tribunal was not satisfied that either of the appellants was a person in respect of whom Australia owed protection obligations because neither of them satisfied the criterion as set out in either s 36(2)(a) or s 36(2)(aa) of the Act. 9 The Tribunal gave detailed consideration to the evidence concerning the first appellant's relationship to each of Mr S and Mr C. It was not satisfied that the first appellant's marriage to Mr S has been dissolved or deregistered in Nepal or Australia. The Tribunal found that the first appellant and Mr S remained married at the time of the second appellant's birth. The Tribunal stated at [33]: On the totality of the evidence before it, and while mindful of the comments and responses provided for and by the applicants, there is no evidence before the Tribunal that the registered marriage between the applicant and [Mr S] has been officially dissolved or de-registered in Nepal or Australia in any way. The Tribunal is satisfied on the evidence before it that the first applicant remains registered in Nepal as the wife of [Mr S] with whom she travelled to Australia as a dependent spouse. The Tribunal finds that she was and remains registered as [Mr S's] wife when the second applicant was born, and that he is registered on the second applicant's birth certificate as her father. While the Tribunal notes the first applicant's comments that the child's features will not look like a "Shrestha" causing people to gossip about her paternity, the Tribunal considers that such gossip and speculation could be overcome by the applicant with the formal documentation she has which identifies the second applicant as the father of the second applicant, born at a time when the first applicant and [Mr S] were in a registered marriage. 10 As to Mr C, the Tribunal drew attention to inconsistencies in the first appellant's evidence concerning her relationship with him. Her evidence included statements to the effect that she was expecting to have a second child, that Mr C was the father, that the first appellant and Mr C live together, and that he supports the first appellant and her daughter. 11 Importantly, the Tribunal stated at [35] that it was not satisfied that the first appellant and Mr C did not intend to marry or that Mr C would not accompany the appellants back to Nepal should they have to return there. 12 Before the primary judge the appellants relied upon the following two grounds for review: 1. The Tribunal erred by considering that the First Applicant ("the Applicant") could protect herself from harm if she returned to her home country by engaging in illegal or deceitful conduct. Particulars The Applicant claimed that her husband was not the real father of her child despite his being named as the father on the birth certificate. The Tribunal considered that the Applicant would not be harmed if relied on the official documentation despite the fact that it contained a false statement. 2. The Tribunal's refusal to postpone its decision to await the result of DNA testing of the Second Applicant was an unreasonable exercise of a statutory discretion and/or denied the Applicants an opportunity to present further evidence a real chance to be heard as required by s.425 of the Act. 13 The grounds of appeal relied upon in the appellants' notice of appeal merely repeat the grounds of review relied upon before the primary judge. 14 The primary judge rejected the first of these grounds on the basis that it involved a mischaracterisation of the Tribunal's analysis. 15 His Honour drew attention to the Tribunal's findings that the marriage between Mr S and the first appellant was registered in Nepal and that she had stated to the Nepalese authorities at the time of applying to have the second appellant's name entered in her passport that Mr S was the second appellant's father. As the primary judge observed at [26], the Tribunal found that the first appellant was not recorded, nor would she be perceived, as the mother of a child born out of wedlock. 16 The primary judge, correctly in my view, held that the Tribunal was not suggesting that the first appellant could protect herself from persecution by "acting discreetly" as was submitted to his Honour on her behalf: cf. Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473 ("S395"). Instead, what the Tribunal did in the present case was to find that the first appellant would not be perceived as a woman who had a child born out of wedlock because she was married to Mr S at the time her daughter was born and that the birth certificate identifies him as the father. As his Honour noted, the Tribunal did not make any assumptions at all about the first appellant's past or future conduct. The decision in S395 was distinguishable on that basis. 17 The appeal based upon the first ground is rejected. 18 As to the second ground of review, the Tribunal raised with the first appellant during the hearing the possibility that Mr S, the first appellant's husband, may in fact have been the father of the second appellant. Shortly after the completion of her oral evidence on 14 December 2014, the first appellant submitted to the Tribunal a statutory declaration made on 18 December 2014 in which she sought additional time to arrange a paternity test of the second appellant to prove that Mr C was her father. The Tribunal did not grant the additional time sought, and proceeded to make its decision on 23 December 2014. 19 The Tribunal referred to the first appellant's request for additional time to obtain a paternity test in some detail. It stated at [36]: The Tribunal is mindful that the first applicant has asked for additional time to obtain DNA evidence to establish the paternity of the second applicant. However, as explained to the applicants and their RMA (who has been representing the applicants since at least the time of the lodgement of their Protection visa application in October 2013), paternity of the second applicant has been a central part of the applicants' claims since lodgement and the applicants. Accordingly, they appear to have had adequate time to present DNA evidence of paternity. The Tribunal also considers that paternity testing, regardless of the results, cannot address or overcome the balance of the Tribunal's concerns regarding the nature of the applicants' claimed circumstances in the past, present or reasonably foreseeable future in Nepal. For example, DNA testing will not address whether the applicants' claims in respect of familial support in Nepal are as they have claimed. It will not address what the applicants and/or [Mr S] and/or [Mr C] may choose to do regarding their claimed relationships in the reasonably foreseeable future. For instance, it will not overcome the Tribunal's inability to be satisfied that the first applicant and [Mr C] have not discussed the prospect of marriage or the Tribunal's inability to be satisfied that the applicants' have been ostracised from their extended family in Nepal as has been claimed, or that the first applicant's circumstances more generally in Nepal, were or will be, in the reasonably foreseeable future, as claimed. Accordingly, as explained to the applicants, while the Tribunal would have considered any DNA test results provided, it declined to postpone finalisation of the review pending such evidence as it does not consider such evidence to be determinative of the multiple and interrelated issues arising. 20 The primary judge was not persuaded that the Tribunal's refusal to delay the making of the decision so that the first appellant could obtain a paternity test of the second appellant, lacked any evident or intelligible justification or that it constituted a denial of procedural fairness. His Honour also accepted that, for the reasons explained by the Tribunal, the results of the paternity test would not have had any impact on the outcome of the review. 21 I am satisfied that the primary judge's conclusion in relation to the second ground of review was correct. The question whether the Tribunal should delay the making of its decision so that the first appellant could arrange for a paternity test to be performed was a matter for the Tribunal to decide. Its reasons for refusing to do so were neither lacking in intelligibility or unreasonable in the relevant sense. 22 The appeal will be dismissed. The first appellant will be ordered to pay the first respondent's costs of the appeal. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate: Dated: 3 April 2017