SZTQM v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 INTRODUCTION [1] 2 PROCEDURAL MATTERS [5] 3 BACKGROUND [8] 3.1 The application for a protection visa [8] 3.2 The applicant's claims [9] 3.3 The Tribunal's decision [12] 3.4 The decision of the Federal Circuit Court [17] 4 THE APPLICATION FOR AN EXTENSION OF TIME [19] 4.1 The grounds for the application and proposed grounds of appeal [19] 4.2 Is an extension of time required? [21] 4.3 Should the time within which to appeal be extended? [24] 4.3.1 Relevant factors to be taken into account [24] 4.3.2 Does the appeal have any prospects of success? [26] 4.3.2.1 Ground 1, draft notice of appeal [27] 4.3.2.2 Grounds 2 and 3, draft notice of appeal [30] 4.3.2.3 Is there any error otherwise in the decision below? [35] 5 CONCLUSION [40]

1. INTRODUCTION 1 The applicant seeks an extension of time within which to seek leave to appeal from the decision of the Federal Circuit Court (the Court below) delivered on 20 April 2015. By that decision, the Court below dismissed the applicant's application under s 39B of the Judiciary Act 1903 (Cth) and Part 8, Division 2 of the Migration Act 1958 (Cth) (the Act) for judicial review of a decision of the (then) Refugee Review Tribunal (the Tribunal) dated 5 November 2013. The Tribunal had affirmed the decision of the first respondent's delegate (the Delegate) to refuse the grant of a Protection (Class XA) visa. 2 The first respondent (the Minister) opposes the application for an extension of time solely on the ground that the proposed grounds of appeal lack any merit. No issue is taken with respect to the adequacy of the applicant's explanation for the delay. 3 The proposed grounds of appeal are first, that the primary judge failed to give reasons for her decision and secondly, fairly read, that the primary judge erred in failing to find that the Tribunal had not considered the applicant's claims to fear persecution. As to the first ground, the applicant confirmed at the hearing that her concern was that, at the time that the application was filed, she did not have a copy of the ex tempore (contemporaneous oral) decision below by the primary judge. Settled reasons in writing were published on 22 May 2015 after the time within which to appeal had expired and after the application for an extension of time within which to appeal was filed. 4 For the reasons set out below, I accept the Minister's submissions that the application for an extension of time must be dismissed on the ground that the proposed appeal lacks any reasonable prospects of success.

2. PROCEDURAL MATTERS 5 Detailed written submissions were filed by the Minister in response to the application on 28 July 2015. No submissions were filed by the applicant in advance of the hearing despite the Registrar's directions dated 18 May 2015 to do so. Nor was any proposed amended draft notice of appeal filed after the delivery of written reasons by the Court below despite orders made on 30 July 2015 directing that any proposed amended draft notice of appeal is to be filed and served no later than two days before the hearing. 6 The applicant appeared at the hearing without legal representation and made oral submissions through a Court appointed interpreter. In all of the circumstances, including that the Minister's submissions had been translated for her only just before the hearing by the interpreter, I granted leave at the applicant's request for her to file a written submission within seven days limited to the question of whether there is sufficient merit in the proposed grounds of appeal to warrant the grant of an extension of time. I also granted leave to the parties to file supplementary submissions on ground 1 of the notice of appeal relating to the failure by the Court below to publish reasons before the period within which the appellant had a right of appeal expired. 7 The applicant subsequently filed handwritten submissions entitled "Ground [sic] of Application" (the applicant's supplementary submissions) to which the Minister filed a reply. The Minister submitted that to the extent that that document sought leave to amend the applicant's proposed grounds of appeal, the application was opposed. While the submissions raise issues beyond those raised in the draft notice of appeal, more significantly they do not raise any matters relevant to a consideration of the lawfulness of the Tribunal's decision as opposed to attempting to reargue her case in support of her application for a visa. As I explain below, this Court has no capacity to review the merits of the Tribunal decision, nor the applicant's visa application more generally.

3.1 The application for a protection visa 8 The applicant, a citizen of Nepal, arrived in Australia on a Student (TU) (Subclass 572) visa on 25 July 2009. On 27 April 2012, the applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship. The applicant claimed to fear persecution if returned to Nepal by reason of her Christianity and her membership of a particular caste, the Dalit group. She also claimed to fear domestic violence, persecution and harm due to a previous marriage. That application was refused by the Delegate. The application for review of the Delegate's decision was unsuccessful, with the Tribunal affirming the Delegate's decision on 5 November 2013.

3.2 The applicant's claims 9 The applicant's claims in support of her application for a protection visa and set out in her second statutory declaration dated 11 November 2012 can be summarised as follows. (1) The applicant became interested in the Christian religion when she was working in child care in Nepal and would sometimes take the children to a church. She did this without letting her family or husband know because of her fear of persecution. (2) The applicant married her first husband in 2009 and came to Australia with him that year. She lived in a suburb of Sydney with an Australian resident who was a Christian and took the applicant to church several times. She started to go to church continually but, as a husband did not like the Christian religion, he started to torture her and to be violent towards her. They commenced living separately in 2011. After that time, the applicant attended a Macedonian Community Church but had problems with the language. (3) The applicant travelled to Nepal in 2012 and, according to her culture, went to her husband's house. However she was physically assaulted by her husband's mother and was not permitted to enter the house because she was a Christian. Nor did her parents accept her, saying that their reputation had been ruined and that she was cast out of their family "and society". (4) The applicant fears that her family will persecute her due to her religious faith and proselytising activities. She also fears her ex-husband's family who have threatened to kill her if she returns to Nepal because she ruined their family and reputation by becoming a Christian and they can afford to pay a gang to do so. Nor would she be protected against such harm by the authorities in Nepal because of her religion and because there is domestic violence, no rights for women and no respect for human life in Nepal. (5) The applicant attends a Nepalese church of which she is now a member and proselytises the Christian faith to Nepali people. She said that she is continually involved in Christian evangelism organised by the Australian Nepali Christian Community Church. (6) She fears harm from the Maoist government in Nepal and its agencies, which prosecutes and harms converts and proselytisers. They know she fled Nepal and is a Christian proselytiser. While the Nepal Constitution allows people to practice their own religion, it does not permit them to convert. Proselytising is also forbidden and punishable by imprisonment for up to five years. (7) She also claims to fear the Youth Communist League, and Hindu extremists who persecute Christians and wrote to the Nepalese authorities in 2002 regarding the illegality of changing religion, putting the lives of Christian evangelists at serious risk. (8) In Nepal, people are treated differently in their second marriage, as is the applicant. The applicant also belongs to the Dalit group which is a very low caste. (9) She claimed generally to be extremely fearful of persecution from the Nepalese authorities, Maoist society, villages, Dalit society and relative(s). She said that she left Nepal and came to Australia to save and protect her life, and that Christian evangelisers do not get protection from the government authorities, Maoist guerrilla, society, Dalit society and relatives. 10 The applicant submitted evidence to the Tribunal including a Certificate of Baptism in her own name dated March 2013. She also relied upon correspondence from a Senior Pastor advising that the applicant and her (second) husband have attended the Australian Nepali Christian Community Church since September 2012 and are actively involved in proselytising among the Nepali and Australian communities. She also submitted a copy of an Interim Constitution of Nepal. Section 23 of the Interim Constitution provided that every person shall have the right to practice his or her own religion provided that no person shall be entitled to convert another person from one religion to another. 11 The applicant appeared at the Tribunal hearing on 28 October 2013 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages. During the course of her evidence, the Tribunal put to her various difficulties with her evidence, including inconsistencies and failures to raise certain claims earlier, and gave her the opportunity to respond. The Senior Pastor also gave oral evidence that sometimes the applicant attends church, and that to his knowledge the applicant proselytised with a visiting Pastor on one occasion but he was unaware of any other occasions.

3.3 The Tribunal's decision 12 Overall, the Tribunal found that the applicant was not a credible witness based on "the changing, internally inconsistent, and implausible evidence provided by the applicant" (at [44]). 13 First, the Tribunal found that the applicant did not have a well-founded fear of serious harm or persecution based on her actual or perceived religious beliefs. Its reasons can be summarised as follows. (1) With respect to the applicant's contact with Christianity in Australia, she initially referred to attending church with a woman named Mrs [R] on three or four occasions, as well as attending a Macedonian Church on five or six occasions. The applicant then added that she had attended a gathering in Marrickville. It was only after further questioning at the hearing that she gave evidence that she had attended a church near her employment four times a week for approximately three years. Nonetheless she was unable to name the church or suggest anything capable of substantiating her claim. The Tribunal found that that evidence demonstrated that the applicant's evidence changed throughout the hearing and was implausible (at [45]). (2) As to the applicant's knowledge of the Bible and Christianity more generally, the Tribunal found it "totally implausible that anyone with even a basic understanding of Christianity, or even fairly minimal contact with Christianity, would form an opinion that Jesus Christ was born approximately 50 years ago", as the applicant had stated. This was despite her evidence of contact with Christianity through a childhood friend, of her fairly consistent contact with Christian groups in Australia, and that she currently read the Bible three to four times a week for 30 minutes (at [48]). (3) The Tribunal accepted that the applicant's claims were broadly supported by the Pastor and that he gave truthful evidence to the best of his ability. However, the Tribunal did not accept that the applicant was involved with Christianity for the period she claimed in light of her evidence and instead found that she was involved only from late 2012 as recorded by the Pastor (at [49]). (4) The timeline of events, in addition to the applicant's evidence, led the Tribunal to conclude that the applicant had been involved with the Christian Church in Australia, including proselytising, for the sole purpose of furthering her protection claim. As such, the Tribunal disregarded her involvement with the Christian Church in Australia for the purposes of assessing her application under the Refugee Convention (at [50]). (5) Overall the Tribunal found that the applicant was not a genuine Christian and did not accept that she would be involved with Christianity or proselytise if she were returned to Nepal (at [51]). Nor did the Tribunal accept that the authorities or any other group in Nepal were aware that the applicant had been involved with Christianity in Australia, including proselytising, or that there was any reason to find that the authorities will become aware or are concerned about this (at [53]-[54]). 14 With respect to the applicant's claims that she was fearful of her ex-husband's family, her own family, villagers and people generally in Nepal due to a previous marriage, separation and related domestic violence, and/or her caste as a Dalit, the Tribunal did not accept the applicant's claims because she gave contradictory and internally inconsistent evidence in this regard (at [55]-[59]). 15 The Tribunal was therefore not satisfied that the applicant was a person in respect of whom Australia has protection obligations under the Refugees Convention, and therefore did not satisfy the criterion set out in s 36(2)(a) of the Act. 16 Nor did the Tribunal accept the applicant's claim under the alternative complementary protection provision in s 36(2)(aa) of the Act which was based on the same claims rejected by the Tribunal on the grounds of credibility in the context of the Refugee Convention (at [60]-[63]).

3.4 The decision of the Federal Circuit Court 17 The applicant relied on five grounds for review in the Court below, as follows: 1. The second respondent made jurisdictional error by failing to consider an integer of the applicant's claim namely she is a member of Amnesty International in Nepal 2. The second respondent made jurisdictional error in that it did not consider issue relating to caste concerning the applicant 3. The second respondent made jurisdictional error assuming that the giving of inconsistent evidence necessitated a finding of lack of credibility 4. The second respondent made jurisdictional error by not giving importance of statutory declaration which was submitted after the decision was made 5. The second respondent made jurisdictional error by not concerning on Christian activities where they have been threatened, hurt, killed for involving in Christianity by other authorities like Hindu, Maoist guerrillas, society, etc. 18 The primary judge held that none of the above grounds were made out, nor was the decision of the Tribunal otherwise affected by jurisdictional error.

4.1 The grounds for the application and proposed grounds of appeal 19 By application dated 15 May 2015, the applicant seeks an extension of time within which to seek leave to appeal on the following grounds: (1) Her honour occurred by fails to give reason for decision. (2) It did not consider issue related to religious problem and domestic violence as there is a real harm from ex-husband family. (3) It did not concern about high risk of Christian people threatened for life death from other religion and authority of Nepal. 20 A draft notice of appeal accompanying the application contains substantially the same grounds. The applicant's supporting affidavit states, verbatim: 2. On April 2015, [the primary judge] made orders in the Federal Circuit Court continues Attached here to and marked A1 is a true copy of these orders. Order 3 states the orders are not to be entered until with the reason are given. 3. Until the matters reason are given, I cannot formulate proper ground of appeal. I also submit that time does not run because of the effect of order 3. 4. In Any event it was my belief until I tried to lodge documents in the federal court on 13 May 2015 that I had until 15 May 2015 to lodge the documents to appeal on the federal court.

4.2 Is an extension of time required? 21 The applicant applied on 15 May 2015 to this Court for an extension of time within which to appeal from the decision below. Under r 36.03 of the Federal Court Rules 2011 (Cth) (FCR), an appeal must be instituted within 21 days of the date on which the judgment was pronounced or made, within 21 days of the date on which leave to appeal was granted, or on or before a date fixed for that purpose by the court appealed from. 22 In this case, the primary judge gave ex tempore reasons and pronounced her Honour's orders dismissing the application for review with costs on 20 April 2015. Her Honour also ordered that "[n]o orders be entered in this matter until written reasons for judgment are settled." The significance of the latter order is that, before final orders are entered, the Court may review, correct or alter its judgment when satisfied in the exercise of discretion that the case should be re-opened having regard to the public interest in the finality of litigation: Smith v New South Wales Bar Association (1992) 176 CLR 256 at 265 (Brennan, Dawson, Toohey and Gaudron JJ). 23 Rule 16.02 of the Federal Circuit Court Rules 2001 (Cth) provides that a judgment or order of that Court takes effect on the day on which it is given or made, unless the Court otherwise orders. The fact that the orders were not entered until "settled" written reasons were given on 22 May 2015 does not affect the fact that the final orders disposing of the judicial review application were made on 20 April 2015: SZSYM v Minister for Immigration and Border Protection [2014] FCA 174 at [14]-[16] (Perry J). There being no order made by the Court below to the contrary, time, therefore, commenced to run for the purposes of r 36.03 of the FCR on 20 April 2015: Kumar v Bathini [2015] FCA 632 at [3]-[4] (Mortimer J); AZAEK v Minister for Immigration and Border Protection [2014] FCA 1415 at [2] (White J); SZTGL v Minister for Immigration and Border Protection [2015] FCA 214 at [5]-[8] (Logan J). It follows that the period within which an appeal could have been instituted as of right expired four days before the present application was made. As a consequence, an extension of time within which to appeal is required.

4.3 Should the time within which to appeal be extended?

4.3.1 Relevant factors to be taken into account 24 The question of whether the Court should grant an extension of time requires an exercise of discretion in which the following factors must be considered: (1) the length of, and any explanation for, the delay; (2) the merits of the appeal; and (3) any prejudice to the respondent, albeit that the mere absence of prejudice is not itself sufficient to justify the grant of an extension of time. See e.g. SZQHK v Minister for Immigration and Citizenship [2012] FCA 178; (2012) 125 ALD 458 at 463 [22]-[24] (Murphy J); SZQBT v Minister for Immigration and Citizenship [2011] FCA 1281 at [15] (Collier J). 25 In this case, the Minister accepted that the application was not significantly out of time and no prejudice to the Minister arises. As to the reasons for delay, the applicant gave evidence by affidavit sworn on 15 May 2015 that she could not formulate proper grounds of appeal until the written reasons were given and submitted that time could not run because of the effect of the order that the orders would not be entered until the written reasons are given. The Minister properly accepted the reasonableness of the applicant's explanation. However, as the Minister submits, that does not mean that an extension of time should be granted if the proposed appeal has no prospect of success.

4.3.2 Does the appeal have any prospects of success? 26 I do not consider that the appeal has any prospects of success and for this reason, refuse the application for an extension of time.

4.3.2.1 Ground 1, draft notice of appeal 27 The first proposed ground of appeal contends that the primary judge failed to give reasons for her decision. The applicant confirmed at the hearing that this was a reference to the fact that at the time of filing the application for an extension of time and proposed draft notice of appeal, the primary judge had not delivered settled written reasons for her decision, but only ex tempore reasons. 28 It is undesirable for settled written reasons to be published only once the period within which an applicant has a right of appeal has expired. This is particularly so where one of the parties is unrepresented and not fluent in English. Such an approach may not only lead to misunderstanding, as apparently occurred in this case with the applicant having understandably assumed that time would not run until the orders were entered after written reasons were given. It can also, among other things, deprive the litigant in a practical sense of the opportunity to seek legal advice on, or otherwise make a proper assessment of, the merits of any appeal before the period within which to appeal expires. These concerns raise a question as to whether the failure to deliver written reasons within the period within which an appeal may be made as of right can amount to a breach of procedural fairness in some circumstances. 29 Nonetheless, I do not consider that there is any merit in this as a ground of appeal here, as the Minister submits. Oral, ex tempore reasons were given by the primary judge at the time that her Honour pronounced her orders. Settled written reasons were given shortly after this application was filed. The applicant could have sought at any time thereafter to amend the proposed draft notice of appeal but did not do so. In this regard, I also made orders in the week before the hearing expressly permitting the applicant to adopt this course notwithstanding that written submissions had already been filed by the Minister in accordance with the timetabling orders made by the Registrar. I did so in order to ensure that the applicant, being unrepresented, was aware of this possibility and that any amended proposed grounds would be served on the Minister in advance of the hearing particularly given that the applicant had not filed any written submissions before the hearing. In the circumstances, I accept the Minister's submission that the delay in the provision of settled written reasons occasioned no unfairness in this case which could not be remedied by the grant of an extension of time if there was otherwise merit in the other grounds of appeal.

4.3.2.2 Grounds 2 and 3, draft notice of appeal 30 It is not clear, as the Minister submits, whether in grounds 2 and 3 of the proposed notice of appeal, the applicant's complaint is that the Tribunal or the Court below failed to consider her claims to fear persecution by reason of her religion if returned to Nepal from the Nepalese authorities and her ex-husband's family. However I have read the ground favourably to the applicant as a complaint that the Court below erred in failing to find that the Tribunal failed to consider these claims. 31 The applicant's oral submissions essentially reiterated her claims before the Tribunal, as did her supplementary written submissions. However, as I explained at the hearing, neither this Court nor the Federal Circuit Court has jurisdiction to decide whether the criteria for the grant of a protection visa are met. The jurisdiction of the Federal Circuit Court is limited to a consideration only of the lawfulness of the Tribunal's decision, that is, to a consideration of whether the decision of the Tribunal is invalid by reason of jurisdictional error: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at 1127 [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Such an error may be established, for example, by a failure to consider one of the applicant's claims or by a breach of procedural fairness (including a statutory rule of procedural fairness). However, the jurisdiction of the Court below did not extend beyond jurisdictional error, the Tribunal's decision being a "migration decision" as defined in s 5 of the Act. As such, in contrast to the powers vested in the Tribunal, the Court below does not have power to grant the applicant a visa or to require that a visa be granted. Nor does that Court otherwise have jurisdiction to undertake a review of the merits of the Tribunal's decision to refuse to grant the applicant a protection visa. 32 The jurisdiction of the Federal Court, in turn, on appeal from the Federal Circuit Court under s 24 of the Federal Court of Australia Act 1976 (Cth) is in the nature of a rehearing. This Court is required to consider whether there is error in the decision of the Court from which the appeal is brought. As such, I am equally constrained from embarking upon a consideration of the merits of the applicant's claims. 33 Notwithstanding the oral submissions, the proposed grounds of appeal allege jurisdictional error in alleging a failure by the Tribunal to consider the applicant's claims. However, as I explained in summarising the Tribunal's decision at [12] to [16] above, it is apparent that the Tribunal's reasons demonstrate that it did, in fact, assess all of the applicant's claims to fear persecution and/or harm, as it was required in law to do, and made findings rejecting those claims on the evidence before it. As the primary judge held at [46]-[47] of her Honour's reasons with respect to the fifth ground of the application for judicial review, the Tribunal found that the applicant was not a genuine Christian and rejected the applicant's claims to fear harm in Nepal for any reason. Matters of credit are quintessentially matters of fact for the Tribunal to determine: Parks Holdings Pty Ltd v Chief Executive Officer of Customs [2004] FCA 820; (2004) 81 ALD 365 at 393 [124] (Goldberg J). 34 Finally, the Tribunal's finding that the applicant was not a genuine Christian did not permit of any real doubt. As such, I can see no error in the primary judge's finding that the Tribunal was not required to consider the position of Christians in Nepal generally on the assumption that it may be wrong to reject her claim to be a Christian. In other words, given the strength of the Tribunal's findings, this is not a case where it was required to consider in the alternative whether the applicant might fear persecution or harm by reason of her religion if it was wrong in rejecting her claim to be a Christian: see Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 (Guo) at 576 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ).

4.3.2.3 Is there any error otherwise in the decision below? 35 Nor can I see any error otherwise in the decision of the Court below in addressing the application for judicial review. 36 As to ground one of the application for review, the applicant expressly disavowed at the start of the Tribunal hearing the claim initially made in her first statutory declaration to fear harm by reason of her membership of Amnesty International, stating that those claims were made by a migration agent without her knowledge (Tribunal reasons at [13]). The applicant also confirmed to the Court below that her membership of Amnesty International in Nepal was not a reason why she feared harm if returned to Nepal. In those circumstances, as the primary judge held, there can be no complaint of a failure by the Tribunal to consider such a claim. 37 As to ground two, it is apparent as the primary judge held from the Tribunal's decision that it did consider whether the applicant was at risk because of her caste but did not accept that she feared serious harm or persecution from any persons in Nepal for that reason. As the primary judge also held at [34]-[35], it is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant, and its findings as to why it did not accept those claims were open to it on the evidence and material before it. 38 As to ground three, the applicant contended that the Tribunal fell into jurisdictional error in finding that inconsistent evidence given by the applicant necessitated a finding that the applicant lacked credibility. Again, I can see no error in the primary judge's conclusion at [38] that the findings were open to the Tribunal on the materials and evidence before it and for the reasons it gave. 39 As to ground four of the application for review, the primary judge held that the evidence established that the two additional statements sent to the Tribunal by the applicant were received after the Tribunal became functus officio. No error has been suggested in the judge so finding. As such the Tribunal had no obligation or power to consider them (reasons below at [44]-[45]).

5. CONCLUSION 40 For the reasons set out above, the application for an extension of time must be refused. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.