SZTPN v Minister for Immigration and Border Protection

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

JUDGE: PERRAM J DATE: 21 NOVEMBER 2014 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This application for leave to appeal should be granted. The applicant unsuccessfully sought from the Minister for Immigration and Border Protection the grant of a protection visa on the basis that she had a well-founded fear of persecution if returned to her home state of Nepal. The Minister's delegate did not accept this and neither did the Refugee Review Tribunal which affirmed the delegate's earlier refusal on 30 October 2013. The applicant then filed a show cause notice in the Federal Circuit Court whose ultimate end was the issue of constitutional writs quashing that determination. On 22 July 2014 the Federal Circuit Court summarily dismissed the application holding that it did not raise an arguable case for relief within the meaning of Rule 44.12 of the Federal Circuit Court Rules 2001 (Cth). That order was interlocutory: Rule 44.12(2). There is no right to appeal to this Court from an interlocutory order of the Federal Circuit Court and leave must be sought (Federal Court of Australia Act 1976 (Cth) s 24(1A)) and, by Rule 35.13 of the Federal Court Rules 2011 (Cth), this must be done within 14 days of the orders which it is proposed to challenge. 2 In this case that required the filing of the application for leave to appeal by 5 August 2014. The applicant believed she could appeal as of right (which was incorrect) and that she had 21 days in which to do so. She therefore sought to file the appeal papers on 8 August 2014. The time limit for an appeal is, indeed, 21 days (Rule 36.03), however, she had no right to appeal and the correct time limit was the fourteen days specified in Rule 35.13. The applicant was advised of this by Registry staff and later filed an application for an extension of time and leave to appeal on 13 August 2014. As events have transpired, the applicant therefore now seeks leave to file out of time an application to seek leave to appeal. 3 To grant leave I must be satisfied that the appeal has some point to it and that the delay has been adequately explained. I am satisfied that the delay has been explained. What then of the merits of the leave application? 4 The applicant arrived from Nepal on 29 March 2009 and lodged an application for a protection visa on 9 November 2012. One part of her claim for protection was that she feared harm by her husband and other predatory males in rural Nepal. She is estranged from that husband. The Tribunal found that he had been physically and mentally abusive towards her whilst she lived with him. However, it did not accept that this abuse had continued after she had moved out. In particular, it did not accept that her husband had come to the house where she was staying after she had moved out (in Nepal) and threatened to harm her. Even had he done so - which the Tribunal did not accept - it did not think that there was any real risk that this would be repeated in the future because whilst the husband knew where she was he had made no effort to harm her since 2009. I suppose one might say against this conclusion that as the applicant had been in Australia since 2009 this would have made the husband's efforts in this regard more difficult, indeed, probably miraculous. 5 The Tribunal also considered the applicant's claims that she would be stigmatised by reason of her single status and harassed by predatory males. The Tribunal accepted that this risk of stigma and adverse treatment did exist in rural Nepal (where she lived) but concluded that it did not exist in Kathmandu to where it thought she could readily relocate. The Federal Circuit Court could detect no frailty in this reasoning from a legal perspective. 6 The Tribunal's conclusion that the applicant could relocate to Kathmandu where she would not be harassed (assuming this to be factually correct) was a sufficient legal reason to find that she could not have a well-founded fear of persecution under the Convention. This followed from the application of the 'internal relocation principle': see Minister for Immigration and Border Protection v SZSCA [2014] HCA 45 at [21] ('The "internal location principle" is well established…'). 7 Before this Court the applicant attacked this conclusion on the basis that the Tribunal's conclusion that she could relocate to Kathmandu was itself factually incorrect and that this was impossible. In part this was because, as I understood it, Nepal was a small place. Nepal is approximately 800 km long and 200 km wide with a population of around 27 million, which certainly lends some support to applicant's proposition. However, I do not think this really helps in the present context. 8 More important is the material the Tribunal relied upon to reach this conclusion. It had before it four sets of material on the topic of divorced women in Nepal. Two of these materials were: (a) A blog site operated by a young volunteer in the volunteer Peace Corps called Amanda Bensel. The blog is entitled 'Two Years on Top of the World - observations and adventures in Nepal'. On one part of the blog (the entry for 19 June 2013) it says: 'It came as a surprise to learn that divorce has been legal in Nepal for over 50 years, but it has taken many decades for Nepali culture to embrace the practice. Over the last decade divorce rates have tripled in Kathmandu, where the culture has most "westernized" - where people casually date before marriage, people are financially stable and well-educated, women have distinct careers and the taboos of divorce are gradually unwinding. But elsewhere in Nepal - pretty much everywhere else - traditional conservative culture still dominates, and being a divorced woman remains highly stigmatized. Thus many wives remain in abusive or tired marriages in order to avoid the stigma and remain financially supported. Why a husband would chose to illegally take a second wife rather than first request a divorce, I am not sure, because it's perfectly culturally acceptable for divorced men to remarry - no stigmas attached.' (b) The second was a report of the UN Committee on the Elimination of Discrimination against Women entitled 'Concluding observations of the Committee on the Elimination of Discrimination against Women - Nepal' dated 11 August 2011. I have been unable to find anything in this report relevantly dealing with divorced women, single women or Kathmandu. In fact it seems to me that the report rather supported the notion that women were downtrodden in Nepal. Paragraphs 17, 19 and 43 were to this effect: '17. The Committee is concerned that patriarchal attitudes and deep-rooted stereotypes that discriminate against women remain entrenched in the social, cultural, religious, economic and political institutions and structures of Nepalese society and in the media. It is also concerned about the persistence of harmful traditional practices in the State party, such as child marriage, the dowry system, son preference, polygamy, widows accused of witchcraft, and such practices as chaupadi, jhuma, deuki and dhan-khaane.' At [19] the report said this: '19. The Committee welcomes the enactment of the Domestic Violence Act 2009 and the launch of a national plan of action on gender-based violence. However, it is concerned about the continued prevalence of violence against women and girls, including domestic violence, in particular against disadvantaged groups of women such as Dalit women. The Committee is concerned that most of the incidents are undocumented and have not been addressed. It is further concerned about the lack of statistical data on violence against women, including sexual violence and domestic violence; the existence of a statute of limitation's [sic] on the registration of sexual violence cases; and the weak penalty for marital rape.' And at [43] the report said this: '43. The Committee is concerned about the persistence of early marriage despite legal provisions banning the practice; the existence of discriminatory legal provisions relating to unequal inheritance rights for married daughters; the existence of contradictory legal provisions that both recognize and criminalize bigamy; and the lack of clear legislation providing for the equal share of all marital property upon the dissolution of marriage.' 9 What did the Tribunal do with this material? At paragraph 36 of its reasons it said this: '36. I discussed with [the applicant] evidence that some women who divorce in Nepal experience social stigma, but that this was no longer the norm in Kathmandu. She there [sic] were no guarantees in Kathmandu, and that for women their only "weapon" was men. For her Kathmandu was a new place and people would comment that she had no husband.' [footnotes omitted] 10 It then later reasoned this way: '51. However there is evidence that over the last decade divorce rates have tripled in Kathmandu, where the culture has most "westernized" - where people casually date before marriage, people are financially stable and well-educated, women have distinct careers and the taboos of divorce are gradually unwinding. The same source also notes that almost everywhere else in Nepal traditional conservative culture still dominates, and being a divorced woman remains highly stigmatised. 52. The applicant is from a rural area and I accept that, if she returns to Chitwan, she may be exposed to a high level of social stigma and even some sexual harassment for this reason. As her status as a separated or divorced woman is one which may last for many years, I am satisfied that the treatment facing her may, taken cumulatively, amount to persecution for the Convention reason of her membership of a particular social group such as "Nepalese women who are separated or divorced". 53. However I consider it would be reasonable for the applicant to relocate within Nepal to an urban area such as Kathmandu, and that if she were to do so the chance would be remote that she would be persecuted for the above Convention reason. As I discussed with her she has lived independently abroad for several years, has work experience and has a supportive friend with friends and relatives in Kathmandu, among whom are people who were willing to allow her to stay with them previously. Importantly, there is the evidence, also discussed with her, that divorced women (and by inference women who are separated from their husbands) are no longer unusual in Kathmandu and that it is a city in which many live and work nowadays.' 11 The passage at [36] was footnoted to the two articles referred to above as well as a third source that was said to support the proposition that some divorced women in Nepal experience social stigma. The young lady's blog site does not support the proposition that the stigma no longer exists in Kathmandu. What it actually says is that 'the taboos of divorce are gradually unwinding'. Further, it comes from a blog of a student who, recourse to the home page of the blog reveals, is not based in Kathmandu. In the same vein, the Committee report appears not only to provide no support for the Tribunal's reasoning but is actively against it. 12 The passage at [51] was footnoted to both the blog of Ms Bensel and another article from 2012 by Kalpana Bhusal of the Global Press Institute entitled 'Rising awareness of legal rights doubles divorce rates in Nepal's capital'. That article suggested that from 2005 to 2012 the number of divorce applications filed in the Kathmandu District Court had doubled. However, it also noted that '[a]lthough divorce laws used to discriminate against women, the legal filing process is now easier for women than men. But socially, the divorce process is wrought with challenges for women, as society tends to blame them for failed marriages.' 13 What grounds of review does this give rise to? There appear to be a few different candidates: (a) a jurisdictional error constituted by the error of law involved in making a finding of fact for which there is no evidence; (b) illogicality or irrationality of the kind referred to in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1 and Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; and (c) irrationality of the kind referred to in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. 14 As to (a), the Tribunal will lack jurisdiction to make findings of fact for which there is no evidence if it is the intention of Parliament, discerned from the text of the Migration Act 1958 (Cth), that such a decision should not have legal consequences. The relevant text is contained in Part 7 of that Act. It says little about fact finding in express terms. Section 422B(3) does say that in conducting a review the Tribunal must act in a way which is fair and just. However, that provision applies to Division 4 which is about the way in which the Tribunal conducts its reviews rather than its processes of decision-making. More pertinent is s 430(1) which provides: '430 Refugee Review Tribunal's decision and written statement Written statement of decision (1) Where the Tribunal makes its decision on a review, the Tribunal must make a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based; and (e) unless the decision is given orally - records the day and time the statement is made; and (f) if the decision is given orally - records the day and time the decision is given orally. ….' 15 Subsection (1)(d) assumes that the findings of fact in subsection (b) will be based either on 'evidence' or 'other material'. Granted that the Act assumes that the Tribunal will act on evidence or 'material' in making its findings is it the intention of Parliament that contravention of this assumption will result in a decision having no effect? Some support for the idea that such an error might be jurisdictional is obtained from s 430(4) which provides: '… (4) The validity of a decision on a review, and the operation of subsection (2A), are not affected by: (a) a failure to record, under paragraph (1)(e) or (f), the day and time when the written statement was made or the decision was given orally (as the case requires); or (b) a failure to comply with subsection (3).' 16 This provision insulates the decision against jurisdictional challenges based on a failure to comply with the subsections (1)(e) and (f) and (3). It therefore assumes that a failure to comply with subsections (1)(e) and (f) is jurisdictional otherwise it would be unnecessary. I should not conclude that subsection (4) is mere surplusage for this would infringe the principle of statutory interpretation that every word of a statute is to be given work to do if possible: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382 [71]. Ergo, subsections (1)(e) and (f) would be jurisdictional but for subsection (4). Each of the other matters in subsection (1) seems to be equally, if not more, important to that decision making process than subsections (1)(e) and (f). The obligation of the Tribunal to give reasons, set out its findings and the evidence upon which they are based seems more critical to the process than recording the time and date upon which the decision was handed down. Consequently, I conclude it is arguable that if the Tribunal makes a finding of fact for which there is no evidence, it commits jurisdictional error. This proposition finds support in Australian Postal Corporation v D'Rozario (2014) 222 FCR 303, where Jessup and Bromberg JJ considered the complicated jurisprudence on the 'no evidence' ground at some length and concluded that the status of the authorities in this Court was that to make a critical finding in the absence of evidence may amount to jurisdictional error (at 318-325 [50]-[67] per Jessup J and 332-334 [106]-[117] per Bromberg J) See also Tanielu v Minister for Immigration and Border Protection [2014] FCA 1221 at [31] per Jessup J. There may be statements to similar effect in other cases although based on a different style of reasoning: cf. Minister for Immigration and Citizenship v SZMDS at 627-628 [52]-[53], 632 [78], 635 [87] and 647-650 [130]-[135]; SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 at 23 [85]; Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 599 [84]; and SZMWQ v Minister for Immigration and Citizenship (2010) 187 FCR 109 at 124 [55]. 17 So far as potential grounds (b) and (c) are concerned, I am also satisfied that there may be an arguable case based upon the same material that various irrationality grounds are available to the applicant. 18 The only issue presently before me is whether I should extend time and grant leave to appeal. There has been an explanation for the delay and the proposed appeal has substance. I therefore propose to grant leave to extend the time to make a leave application and to grant that application. I will make the following orders:

1. Grant leave to the applicant to file a notice of appeal raising the following grounds of appeal: '1. The Federal Circuit Court erred by failing to find that the Tribunal made a jurisdictional error in making the finding that the applicant could relocate to Kathmandu when there was no evidence before it to that effect. 2. The Federal Circuit Court erred by failing to find that the Tribunal made a jurisdictional error in concluding that the applicant could relocate to Kathmandu having regard to the material upon which it relied, that reliance being irrational and/or unreasonable. 3. The Federal Circuit Court erred by failing to find that the Tribunal made a jurisdictional error in concluding that the applicant did not have a well-founded fear of persecution that conclusion being irrational and/or unreasonable.'
2. Direct that the notice of appeal be filed within 21 days of the date of these orders.
3. Stand the appeal over for further directions at 9.30 am on Tuesday 9 December 2014 to consider: i. the applicant's representation for the appeal and whether the Court should refer the applicant for legal assistance under Division 4.2; ii. putting in place a proper appeal book with the relevant materials in it; and iii. whether the appeal should be referred to the Full Court.
4. The costs of the leave application are to abide the outcome of the appeal. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.