SZRMN v Minister for Immigration and Citizenship

THE CLAIMS MADE 12 The claims addressed by the Tribunal essentially fell into two categories, namely: those that the Appellant relied upon before the delegate in her first application, in a statement dated 16 August 2011; and those that emerged during the hearing on 4 April 2012, being those claims that on one view were raised by the Tribunal, rather than the Appellant herself. 13 The claims raised in the August 2011 statement were, in summary form, that the Appellant had been forced into marriage at the age of fifteen and that she was "vehemently opposed to this wedding". Her husband was 14 years her senior. She maintained that she "encountered extreme hardships and [that] violence was inflicted upon me". Her "physical relationship", she also maintained, "may be described as a form of rape". She said that it was "unbearable to continue such a relationship…". 14 Although the Appellant did not attend any interview before the Minister's delegate, she did attend a hearing before the Tribunal. The Tribunal recounted part of the manner in which the claims were advanced as follows: [29] The Tribunal asked the applicant if her husband was violent towards her. She stated that there was "nothing like that". The Tribunal commented that in her written statement she indicated that she was subjected to violence and sexual assault. The applicant stated that each time she and her husband had sexual relations she felt as if she was being raped because she did not wish to be in the marriage with him. She stated however that he was not physically violent towards her or force her to have sexual relations with him. The applicant later stated that her husband beat her when she tried to leave him. The Tribunal indicated to the applicant that she was contradicting her earlier evidence that her husband was not physically violent towards her. The applicant stated that it did not happen frequently so she did not mention it when she was initially asked. The Tribunal commented that the applicant appeared to be exaggerating her claims to enhance the application. She did not directly respond. The Tribunal went on to state that it was "not satisfied that the applicant provided a truthful account of her marriage" and found that her "claims were contrived … to support her application". 15 The Tribunal did find, however, that the now-Appellant was "not happy in her marriage and [is] seeking to leave that marriage…". The Tribunal also found that it "may be so" that her husband wants her to return to him in Nepal but went on to express its lack of satisfaction "that the applicant's husband sought to confine or restrict her freedom". It also expressed a further finding in this respect that the "claims were contrived by the applicant to enhance the application". 16 In this manner, the Tribunal addressed and resolved the claims set forth in the August 2011 statement. 17 Had the reasons for decision of the Tribunal stopped at that point, Counsel for the Appellant accepted that he may well have confronted difficulty in impugning the reasoning process of the Tribunal. The Tribunal was not satisfied that the Appellant had "provided a truthful account of her marriage" and considered that her "claims were contrived…". The concession as to the difficulties confronting a successful outcome in the appeal in this respect was properly made. 18 The strength of his reformulated Ground of Appeal, he nevertheless maintained, emerged from the following two paragraphs of the Tribunal's reasons: [50] The Tribunal has considered information from external sources which indicates that divorced women in Nepal face ostracism. The Tribunal has formed the view that social conditions in Nepal have contributed to the applicant's decision to come to Australia and remain here rather than return to Nepal and seek a divorce from her husband. The Tribunal accepts that if the applicant decides to pursue a divorce in Nepal she may suffer disapproval and ostracism from conservative elements in society. However, the Tribunal finds that the disapproval and social ostracism which the applicant will face in this regard will not amount to harm of such nature or extent as to constitute persecution for Convention purposes. In Levy v MIMA, [unreported, Federal Court of Australia, 21 December 1998] the applicant claimed that she was subjected to taunts, alienation and threatening telephone calls, because her marriage was not accepted by society. Justice Tamberlin provided the following comments regarding such situations: It is by no means a unique experience that where persons from different cultures, religions, races or traditions intermarry, there is a degree of social hostility manifested towards one or even both of the parties to the marriage for stepping outside traditional social, racial or religious norms. Generally speaking, such hostility would not properly be described as persecution in the context of a Convention concerning refugees, which is focussed, to a large extent, on the protection of core human rights. [51] In Mataka v MIEA & Anor [unreported, Federal Court of Australia, 24 May 1996] the applicant claimed that he "would be treated contemptuously" for his progressive views and that others would sneer and laugh at him. Lindgren J held that such behaviour did not in itself constitute persecution for a Convention reason. The Tribunal finds that in the present matter the difficulties which the applicant will face in Nepal, if she seeks a divorce from her husband, will not constitute persecution for Convention purposes. It was the Tribunal's consideration of "information from external sources" which it was said exposed error.

BLEAK PROSPECTS? 19 Although reliance upon the Tribunal not properly extracting a reference to "the independent evidence" was abandoned, it should be briefly mentioned. 20 Before the Federal Magistrate it was argued that the Tribunal had not properly extracted the relevant reference. Before this Court it was accepted that the Tribunal had committed no such error. 21 The reference in the Ground of Appeal in this Court to "bleak prospects" is a reference to the following observation of the Tribunal in its reasons for decision: [34] The Tribunal noted that women in Nepal "still face bleak prospects for life after marital dissolution". The report indicated that legal changes have removed some disincentives to divorce but nonetheless the time and money required to undertake a divorce was beyond the means of many women in Nepal. In respect to the quotation as to "bleak prospects", the Tribunal "footnotes" a reference to an article published by Elyse Jennings titled "Marital Dissolution in Nepal: The Influence of Spouses' Perceptions of Marital Dynamics". 22 Before the Federal Magistrate it was contended that the relevant passage from the article was the following : In this setting, women may be at a greater disadvantage after a divorce than men, potentially motivating them to avoid experiencing marital dissolution. For women, and particularly women in this setting, marital dissolution has the potential to be life altering, and may be detrimental. While laws have been changing in favor of women's rights, women continue to face legal and economic difficulties after marital dissolution... Divorce and, to a lesser extent, separation are stigmatized, and this stigma is most strongly felt by women. Women are expected to be "pure" upon marriage, making it difficult to remarry. Thus, divorced women may be left to support themselves through economic hardship after a dissolved marriage - a difficult task, given the lack of economic opportunities for women in rural Nepal. They may also be ostracised from their natal families, from which they typically move away to move into their husband's home upon marriage. In other words, they have bleak prospects of being able to support themselves or of having people to depend on for support. Men, on the other hand, may face less stigma and have brighter prospects for post-divorce economic well-being. Because of the differing barriers that women and men face, their perceptions of marital dynamics are likely to influence marital dissolution in different ways. Couples in which wives who feel little love for their husbands and/or perceive a lot of conflict may be less likely to dissolve than couples in which husbands feel and perceive the same. What was previously overlooked when the proceeding was before the Federal Magistrate, however, was that Ms Jennings' article also goes on to state: Divorce laws help to shape the context in which people make the decision to dissolve their marriages. While women had no legal rights prior to 1963…, their rights have been expanding since then. Women still face bleak prospects for life after marital dissolution, but laws have increasingly been offering more legal support for women. This may gradually cancel out the disincentives to divorce. … 23 The reference by the Tribunal to "bleak prospects" in para [34] of its reasons and the reference extracted are presumably drawn from the latter statement by Ms Jennings. It was thus accepted that there was no "misconstruction" of what Ms Jennings was stating. It was further accepted that the manner in which the application before the Federal Magistrate was conducted on the part of the now-Appellant, at least in this respect, was misplaced.

THE FORMULATION OF THE CLAIM - MATTERS OF PRINCIPLE 24 If any consideration of the Appellant's claim seeking refugee status or the means whereby she has sought to advance that claim is confined to the decision-making processes up to this stage, it emerges that: the claim as initially formulated by the Appellant has been resolved by the Tribunal; an alternative manner in which that claim may be advanced emerged during the course of the Tribunal hearing and was also resolved by the Tribunal; an argument before the Federal Magistrate that legal error was exposed by the Tribunal's resolution of that alternative manner of advancing the claim - namely the "bleak prospects" faced by the now-Appellant and the factual basis upon which the Tribunal proceeded - depended upon a reading of the article by Ms Jennings which it is now accepted was mistaken; and the argument now sought to be advanced is neither an argument advanced before the Federal Magistrate nor an argument set forth in the Notice of Appeal as filed. Such an analysis is, perhaps, more reminiscent of the opening to Bleak House than to an orderly process of judicial review set upon determining whether the Tribunal's reasons expose jurisdictional error. Mr Dickens was fortunately free of any necessity to unravel the mysteries of jurisdictional error. He may nevertheless have been referring to either the conduct of this case to-date or indeed jurisdictional error when he wrote at the outset of his novel: Fog everywhere. Fog up the river, where it flows among green aits and meadows; fog down the river, where it rolls defiled among the tiers of shipping and the waterside pollutions of a great (and dirty) city. Fog on the Essex marshes, fog on the Kentish heights. Fog creeping into the cabooses of collier-brigs; fog lying out on the yards, and hovering in the rigging of great ships; fog drooping on the gunwales of barges and small boats. Fog in the eyes and throats of ancient Greenwich pensioners, wheezing by the firesides of their wards; fog in the stem and bowl of the afternoon pipe of the wrathful skipper, down in his close cabin; fog cruelly pinching the toes and fingers of his shivering little 'prentice boy on deck. Chance people on the bridges peeping over the parapets into a nether sky of fog, with fog all round them, as if they were up in a balloon, and hanging in the misty clouds. For present purposes, the "fog" may have ultimately lifted. On behalf of the Respondent Minister, no submission was advanced that the claim as ultimately presented for resolution was anything other than the claim as initially advanced. However the claim may have been expressed, and however it may have been previously resolved, the solicitor on behalf of the Minister maintained that there was no jurisdictional error exposed in the reasons for decision of the Tribunal. 25 The manner in which the claim on behalf of the Appellant had been advanced and resolved nevertheless, it is respectfully considered, gives rise to a number of more fundamentally expressed concerns. 26 At the outset, and when considering whether an administrative decision-maker has resolved a claim or an application being made, a number of competing considerations pull in different directions and give rise to potential tension. 27 On the one hand, claims being made (particularly by those who are unrepresented and who are seeking refugee status) are not to be narrowly construed. A parsing and analysing of a claim which may be appropriate to the resolution of a commercial cause has little (if any) application in administrative proceedings. In an administrative context, an application is not to be treated as an exercise in 19th century pleading: SGBB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 709 at [17] per Selway J. In the context of migration decisions, it has thus been said that the Tribunal must "deal with the case raised by the material and evidence before it" and that a claimant "does not have to pick the correct Convention 'label' to describe his or her plight…": Dranichnikov v Minister for Immigration & Multicultural Affairs [2000] FCA 1801 at [49] per Whitlam, Tamberlin and Sundberg JJ. 28 On the other hand, it is generally left to an applicant to formulate the application or the case he seeks to have resolved: cf. Abebe v Commonwealth [1999] HCA 14 at [187], 197 CLR 510 at 576 per Gummow and Hayne JJ. 29 It is, accordingly, generally difficult to impugn a decision of an administrative decision-maker upon the basis that left unresolved are claims not advanced for consideration. Neither the delegate nor the Tribunal are required to review "criteria for an application, never made, which might have been put on another basis": Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1 at [31], 211 CLR 441 at 457 per Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ. Each particular area of administrative decision-making may nevertheless give rise to its own peculiar idiosyncrasies. 30 Where a right of review is conferred by statute, consideration may have to be given to the content of what was intended to be conferred by a statutory right of "review" or "appeal". Where there is a right to seek "review" of an administrative decision by the Refugee Review Tribunal, the Tribunal is not confined to the evidence or other materials that were before the initial decision-maker and the Tribunal "may get any information that it considers relevant": s 424 Migration Act 1958 (Cth) ("Migration Act"). But that section "is not the source of any obligation on the tribunal to go further and seek more information that might enhance, detract from or otherwise be relevant to information which it has already received": Minister for Immigration & Citizenship v SZGUR [2011] HCA 1 at [86], 273 ALR 223 at 246 per Gummow J. 31 Common to many administrative decision-making contexts, it must nevertheless be recognised, is a temptation for a claimant who has been once unsuccessful to reformulate the claim in order to bolster prospects of success at a later stage of administrative review. When considering whether such a course should be permitted, much may depend in a particular case upon whether the ambit of an application or claim has been initially drafted with the assistance of a legal or other professional advisor. Much will also depend upon any statutory context within which a decision is required to be made. 32 In many administrative decision-making contexts it may thus be generally inappropriate to hamstring administrative re-consideration by comparable doctrines which generally preclude (for example) an appellant from a judicial determination from raising new or fresh arguments on appeal (cf. Dart Industries Inc v DÉcor Corporation Pty Ltd (1989) 15 IPR 403 at 416) or from seeking to adduce "fresh evidence" on appeal (cf. Orr v Holmes (1948) 76 CLR 632 at 640 per Dixon J; CDJ v VAJ (1998) 197 CLR 172 at 202 per McHugh, Gummow and Callinan JJ). In the case, for example, of the Administrative Appeals Tribunal, the task of the Tribunal is to reach the "correct or preferable decision" and is not confined to the evidence of other materials that were before the initial decision-maker or to the arguments that were previously advanced. 33 The manner in which these competing tensions in an administrative decision-making context should be resolved - as opposed to a judicial resolution of "matters" - has been little explored. 34 The approach taken by the Respondent Minister in the present proceeding (fortunately) leaves it unnecessary to resolve how these tensions are to be resolved as a matter of general principle. In the approach of the Minister, the case can be resolved by reference to the facts of the present proceeding.

THE GROUND OF APPEAL - AS FORMULATED OR REFORMULATED 35 It is respectfully concluded that it matters not whether the present appeal is to be resolved by reference to whether: the Tribunal correctly resolved the claim as originally advanced in the August 2011 statement of the Appellant; or by reference to: the claim as originally advanced by the Appellant but as expanded or supplemented by the Tribunal's reference to "the independent evidence"; or whether the Federal Magistrate: committed appellable error, including an error foist upon it by a mistaken reference to the passage in the article by Ms Jennings. On behalf of the Minister, it was submitted that the Tribunal committed no jurisdictional error and that the Federal Magistrate was correct in concluding that the application before that Court should be dismissed. The legally correct result, it was submitted on behalf of the Minister, was reached irrespective of the manner in which claims or arguments may previously have been advanced. That submission on behalf of the Minister, it is concluded, should be accepted. For present purposes, any error said to have been committed by the Tribunal or the Federal Magistrate in erroneously extracting the citation to the article by Ms Jennings may be left to one side. 36 If attention is thereby confined to the Ground of Appeal as set forth in the Notice of Appeal, without reference to any error said to arise by reason of any "misreading of the independent evidence", the appeal should nevertheless be dismissed for a number of reasons. 37 First, it is not considered that the Tribunal in paras [50] and [51] of its reasons was either equating or even attempting to equate its conclusions there set forth with its earlier observations as to "bleak prospects" in para [34]. All that the Tribunal was doing was supporting its conclusions as to the Appellant "suffer[ing] disapproval and ostracism from conservative elements in society" by reference to the two decisions in Levy v Minister for Immigration & Multicultural Affairs and Mataka v Minister for Immigration & Ethnic Affairs. 38 Second, the conclusion of the Tribunal that the now-Appellant did not meet the criteria in s 36(2)(a) of the Migration Act was a conclusion based upon all of its findings and reasons. Its findings, including in particular in para [50], are findings based upon an assessment of the entirety of the information available to it as to the difficulties confronting married women in Nepal who seek to divorce their husbands. The finding expressly recognised that the now-Appellant "may suffer disapproval and ostracism from conservative elements in society" but also found that that did "not amount to harm of such nature or extent as to constitute persecution for Convention purposes…". That was a finding which was open to it. 39 If consideration is given to the Ground of Appeal as reformulated during the course of the present hearing of the appeal, the same result follows. 40 To the extent that it was submitted that the Tribunal raised for itself and on its own initiative a question as to the potential for "social ostracism" as a separate issue from those raised in the August 2011 statement, any such argument misstates the facts. Whatever may have been the ambit of the claims raised in that statement, it was the now-Appellant who raised for consideration the difficulties she may have to confront in Nepal if she divorces her husband. So much emerges from the following passage in the reasons for decision of the Tribunal: The [now-Appellant's] adviser commented that divorce in Nepal requires consent of the parties and that women in Nepal are reluctant to divorce because of the social stigma associated with it. He argued that if the applicant returns to Nepal, she will have to see her husband, because they have children together, and he will be violent towards her if she refuses to return to him. … No criticism can thus be directed to the Tribunal raising for resolution a claim not sought to be advanced by the Appellant. The claim as to difficulties she may confront should she divorce her husband may not have been claims expressly raised in the August 2011 statement - but it was a claim raised on her behalf during the hearing before the Tribunal and resolved by it. 41 To the extent that the reformulated Ground of Appeal seeks to raise an argument that the Tribunal had raised for consideration as a result of its own reading of "the independent evidence" - and thereafter failed to resolve - questions as to the means whereby divorced women in Nepal could "physically survive", the argument is equally without substance. Counsel for the Appellant sought to include within the ambit of physical survival the needs to consider "economic survival". 42 One simple answer to any such argument is that the Appellant did not advance any submission or any evidence requiring consideration of such matters. The absence of any such argument may be the product of the Appellant confining herself to the claims as made in the August 2011 statement. Moreover, the Tribunal in its reasons for decision stated: [35] The Tribunal commented that the applicant appeared to have the knowledge, determination, and financial resources, to seek a divorce. The applicant stated that she made inquiries once, in 2004, but her husband will never let her divorce him. And, when subsequently resolving the application for judicial review of the Tribunal's decision, the Federal Magistrate observed: [46] Counsel for the applicant submitted that in considering the consequences for the applicant of divorce in Nepal, it had considered only the social consequences associated with divorce and had failed to consider the possibility of economic hardship. Counsel conceded that there was no independent claim made by the applicant that she would suffer economic hardship following divorce. 43 Even if any difficulty arising by reason of the Appellant now seeking to raise a claim that was not articulated in the August 2011 statement is left to one side, the arguments as sought to be advanced pursuant to the re-formulated Ground of Appeal are either arguments not supported by any evidence or contrary to concessions previously made. Any reservation as to attributing responsibility to the Appellant for the manner in which she conducted her case before the Tribunal is considerably reduced when it is recalled that the Appellant was represented before the Tribunal by a professional adviser.

A FIXED COSTS ORDERS 44 The Respondent Minister seeks an order for costs to be paid in a fixed sum pursuant to r 40.02 of the Federal Court Rules 2011. Rule 40.01 provides that if an order is made for the payment of costs "without any further description of the costs, the costs are to be costs as between party and party". Rule 40.02 thereafter provides as follows: Other order for costs A party or a person who is entitled to costs may apply to the Court for an order that costs: (a) awarded in their favour be paid other than as between party and party; or (b) be awarded in a lump sum, instead of, or in addition to, any taxed costs; or (c) be determined otherwise than by taxation. Reliance is presently placed upon r 40.02(b). 45 An affidavit filed on behalf of the Respondent Minister on 29 April 2013 seeks an order that costs be fixed in the lump sum of $4,290.00. Counsel for the Appellant accepted that costs should follow the event and that, in the event that the appeal was dismissed, nothing could be said in opposition to the order as to costs sought by the Minister. 46 After the close of submissions, and without any leave having been sought or granted, a further affidavit was filed seeking costs in the sum of $4,900.00. At the time of filing that affidavit, no further evidence was filed indicating whether the Applicant opposed or consented to any order for costs being an order for the greater amount. Without affording the Applicant an opportunity to make submissions in respect to the amount more recently claimed, no order for that greater amount should be made. Without leave having been sought to file a further affidavit seeking an order for the payment of costs in a greater amount than that claimed during the course of the hearing, the further affidavit should not have been filed. There is a need for finality in litigation, including finality as to the amount of costs being claimed. Concurrence with the proposition that costs should follow the event is not an invitation to an opposing party to unilaterally seek thereafter an order for costs in a greater amount than that previously disclosed.

CONCLUSIONS 47 The appeal is to be dismissed. 48 There is no reason why the Appellant should not pay the costs of the First Respondent in the lump sum as sought in the affidavit filed 29 April 2013.

THE ORDERS OF THE COURT ARE:

1. The appeal is dismissed.
2. The Appellant is to pay the costs of the First Respondent fixed in the lump sum of $4,290.00. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.