BZAGF v Minister for Immigration

[2014] FCCA 2991

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAGF v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2991

Catchwords:
MIGRATION – Protection (Class XA) visa – member of particular social group “women in Nepal” and “divorced or separated women in Nepal” – where tribunal accepted women subjected to violence in society and in domestic relationships generally – where tribunal assessed no real risk of harm to applicant for a Convention reason – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36(2)(a)

Minister for Immigration and Border Protection v MZYTS (2103) 136 ALD 547
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559

Applicant: BZAGF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 79 of 2014

Judgment of: Judge Jarrett

Hearing date: 15 December 2014

Date of Last Submission: 15 December 2014

Delivered at: Brisbane

Delivered on: 23 December 2014

REPRESENTATION

Solicitor for the Applicant: Mr Sharma

Solicitors for the Applicant: Sharma Lawyers

Solicitor for the First Respondent: Ms Kelly

Solicitors for the First Respondent: Clayton Utz

The Second Respondent entered a submitting appearance.

ORDERS

1. The application filed on 24 January, 2014 is dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 79 of 2014

BZAGF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant applies for judicial review of a decision of a refugee review tribunal which affirmed a decision of a delegate of the first respondent to refuse to grant the applicant a Protection (Class XA) visa. The applicant seeks orders in the nature of constitutional writs quashing the decision of the tribunal and compelling the tribunal to make a new decision according to law.

2. The first respondent opposes the application.  The second respondent entered a submitting appearance.

3. Both parties filed written submissions in support of their respective positions.  Neither party sought to add to or supplement those submissions at the hearing before me.

Background

1. The applicant, a Nepalese national, arrived in Australia on 13 November, 2008 as a holder of a dependent spouse visa (she was the wife of a student). 

2. In January, 2012 the applicant became aware that her visa had been cancelled.

3. On 23 March, 2012 the applicant applied for a Protection visa with the assistance of a migration agent. 

4. On 8 November, 2012 a delegate of the first respondent refused to grant the applicant the visa.

5. On 13 December, 2012 the applicant applied, with the assistance of her migration agent, to a tribunal for review of the delegate’s decision.

6. The tribunal wrote to the applicant, through her representative, on 30 August, 2013 inviting her to appear before it for a hearing on 20 November, 2013.  The applicant’s representative responded on her behalf confirming that the applicant would appear before the tribunal.

7. On 13 November, 2013 the applicant’s representative provided substantive written submissions.

8. The hearing was held as scheduled on 20 November, 2013. The applicant appeared supported by her agent.

9. Following the hearing, the applicant provided further submissions to the tribunal. 

10. The tribunal made its determination on 20 December, 2013 and affirmed the decision under review.

The tribunal’s decision

1. The applicant claimed to be a person in respect of whom Australia has protection obligations because she had a well-founded fear of persecution based upon her membership of a particular social group, namely, women in Nepal, or alternatively, divorced women in Nepal.  In support of her application, she claimed:

   a)her dependent spouse visa had been cancelled as a result of a deliberate and vindictive act on the part of her husband;

   b)two of her four sisters had separated from their husbands because of ongoing domestic violence they suffered from their husbands;

   c)one of her sister’s had become a Nun at the age of 15 after she suffered sexual abuse from their first brother-in-law;

   d)she had been sexually harassed by her first brother-in-law;

   e)she was threatened by her brother-in-law that he would make her a disabled person when the applicant hit him with stick because he was beating her sister;

   f)her father changed the applicant’s name, she believes, so that he could sell her for prostitution;

   g)her family had taken a large loan from her third brother-in-law and other members of the community, who were demanding repayment and making threats;

   h)she suffered violence at the hands of her husband here in Australia;

   i)she had been threatened by each of her three brothers-in-law; and

   j)she feared harm from the community generally and in one incident in 2006, men chased her in Kathmandu and tried to rape her.

2. As the applicant’s written submissions puts it:

   Essentially, the applicant claimed that taking into account how women, in particular, divorced women (a social group) are treated in Nepal and given her own experience and experience of her sisters, she is fearful that if she returns to Nepal, there is a real chance of her being harmed.

3. The tribunal accepted the applicant’s claims that she had suffered threats from her brothers-in-law, that her father had changed her name and that she was chased by men in 2006 but made a finding that these facts did not give rise to a well-founded fear of serious harm or persecution.

4. The tribunal concluded that the applicant was not a person in respect of whom Australia had protection obligations under the Refugees Convention and therefore that the applicant did not satisfy the criterion for the grant of a protection visa set out in s.36(2)(a) of the Migration Act 1958 (Cth).

The grounds of review

1. The applicant relies on three grounds of review expressed as follows:

   1.  That the first and second respondents did not take into account all of the relevant information.

   Particulars:

   The First and Second Respondents failed to take or properly take into account the information provided by the primary Applicant about the situation in her home country.

   2.  The Second Respondent made erroneous findings inconsistent with the evidence provided.

   3.  The applicant was denied natural justice.

Ground 1

1. As to the first ground, the applicant argues that the tribunal did not properly take into account evidence contained in a US State Department report made in 2012.  In particular, the applicant argues that the tribunal did not give proper weight to that report which suggested that:

   a)whilst a number of discriminatory legislative provisions in the laws of Nepal relating to women have been repealed, laws providing for criminal penalties for corruption by officials was not effectively implemented or enforced;

   b)there continues to be reports that officials engaged in corrupt practices with impunity;

   c)violence against women remains a problem. Most incidences of rape go unreported, and in cases which were reported, courts and the police were unresponsive;

   d)women of 30 or older are forced into prostitution.   

2. However, the tribunal’s reasons for decision reveal that it considered country information, including reports from the US State Department when assessing the applicant’s claims.  The information accessed by the tribunal was summarised in Attachment B to the tribunal’s reasons.  The information included reports from the US State Department made in 2011, 2012 and 2013.

3. As to her claims regarding the prevalence of domestic violence in Nepal the tribunal accepted those claims. The tribunal accepted that the applicant’s two sisters experienced violence in their domestic relationships and the applicant also experienced violence in hers.   The tribunal records:

   39.    The Tribunal accepts on the country sources and the applicant’s evidence, that domestic violence is prevalent in Nepal and that at least two of her sisters have been subject to domestic violence. 

4. The applicant argues that the tribunal accepted that:

   a)one of the applicant’s brothers-in-law made improper advances towards one of the applicant’s sisters and herself;

   b)the applicant’s sister became the victim of family violence at the hands of that brother-in-law; and

   c)that brother-in-law pushed the applicant’s brother which made him a disabled person for life.

5. Clearly, the tribunal accepted the first two of those propositions.  The tribunal did not clearly accept the third, stating that the applicant suspected that the brother-in-law had pushed her own brother causing his injuries.  In any event, having accepted those facts, the applicant argues that the tribunal did not properly take them into account when determining the real likelihood of the harm to the applicant, presumably from this one of the applicant’s brothers-in-law.  However, as to these matters, the tribunal said:

   41.    The Tribunal does not accept that there is anything more than a remote chance of serious harm from Brother-in-Law one, were the applicant to return to Nepal in the reasonably foreseeable future. The Tribunal accepts that Brother-in-Law one made improper advances towards Babita and herself when they were children. The Tribunal also accepts that he used to beat her sister Jalypa and on one occasion the applicant hit him when he was beating Jalpya, and he then threatened to make her disabled. The Tribunal also accepts that the applicant suspects that this brother-in-law pushed her brother and that this may have caused his accident. The Tribunal has taken into consideration new claims made in the adviser’s submission after the hearing that the applicant was not attacked because she remained cautious at all times. Notwithstanding this however, Brother-in-Law one is now divorced from her sister Jalypa and has remarried and is living in another town. Brother-in-Law one has not harmed or attempted to harm the applicant since she was about eleven years old and is no longer a presence in their family. There was no evidence that he has continued to threaten her in any way or has any ongoing interest in her at all. The Tribunal does not accept therefore that any chance of harm is anything more than remote.

6. The matters raised by the applicant in this regard were all dealt with by the tribunal.  There is no substance in the applicant’s argument that it did not consider them “properly”.

7. As to the steps being taken to eliminate the trafficking of women for prostitution, the tribunal reasoned:

   45.    The Tribunal accepts country information provided by the advisor that the government of Nepal does not fully comply with the minimum standard for the elimination of trafficking despite the presence of the legislation. However the Tribunal does not accept that there is a real chance of serious harm from her father.  He has not harmed her in the past. He is now 80 years old. There is no evidence that he has harmed any of her sisters, or any of the grandchildren. Her disabled brother lives in the house with the father, as do her sister’s children, and there is no evidence that they have been harmed. The Tribunal accepts her oral and written evidence that her name was changed when she was in Grade 10. The Tribunal notes that this is unusual but makes no findings on the reason for this change without evidence from the father. The Tribunal does not accept that if she returns her father will try and force her into prostitution or traffic her, with or without the help of a brother-in-law. If he had intended to do this, then he would have done so after the name change or prior to her coming to Australia. The applicant has claimed that he will traffic her due to their destitute financial state if she returns or because Brother-in-Law three wants his money returned. It has also been submitted that her age is not relevant as the issue is related to the male-dominated concept, structure and practice of the society. The Tribunal accepts that the society is male-dominated, but does not accept that her father would do this, given the fact that he has not harmed her or other members of her family in the past, and because on her evidence they had financial problems in the past, and he has not done so in the past. The Tribunal accepts that he threatened previously to remarry which upset her mother, but does not accept that this comprises any threat of future harm of any kind to the applicant. Furthermore her evidence was that her other two sisters are living independently of the family and could either provide some financial contribution or protection to her.

8. The tribunal accepted that the applicant had been attacked by a group of men in Kathmandu. As to that matter, and the occurrence of serious crimes against women more generally the tribunal said:

   46.    The Tribunal does not accept there is anything more than a remote chance of serious harm, such as physical harm, from the community. The Tribunal accepts that in 2006 in Kathmandu some boys chased her and attempted to rape her and this was very traumatic for her. The Tribunal also accepts that a security guard did not help her. She has said that the fact that she was nearly raped once would make it easier for them to do it again. The Tribunal does not accept that this is the case as the previous incident was a random crime. Furthermore she suffered no more instances of serious harm from the community from 2006 until she came to the country. While crime is a risk for all members of society, the Tribunal does not accept that there is a real chance of serious harm amounting to crime if she returns in the reasonably foreseeable future. The Tribunal accepts that serious crimes against women take place, such as those in a number of reports provided by the adviser, however this does not lead to a conclusion that all women in Nepal are at risk of serious harm, nor that the applicant would face serious harm if she returned. The Tribunal does not accept that there would be systematic and discriminatory conduct as crimes would not be directed against her in a non-random way. The Tribunal also accepts that adequate state protection is available, although there are problems with resources. For example, according to the Small Arms Survey set out in Attachment B, the police force has 225 personnel per 100,000 inhabitants, “slightly surpassing the UN-recommended minimum presence of 222 per 100,000”, and more than twice the figure in neighbouring India. The same survey indicated a high degree of satisfaction with the police although there are problems with resources. Furthermore while there are many problems with implementation of laws to protect women from violence, the government has indicated an intention to improve its legislation and operations in this area and has made some attempts to do so, for example by introducing women’s services into police stations. The Tribunal is satisfied there is no discriminatory withholding of state protection.

9. As to the social stigma against separated single women in Nepal, the tribunal said:

   47.    The Tribunal accepts, on the basis of country information, there will be some social ostracism for being a separated single woman, and also a woman who was suspected of being raped. The Tribunal also accepts on the basis of country source set out in Attachment B, that as a separated single woman, and also a woman who was suspected of being raped, she may suffer some discrimination in access to housing, jobs and other social services.

   48.    In relation to the ostracism and discrimination she believes she will face as a separated, single woman whom the society believes was raped, the Tribunal does not accept this type of harm amounts to serious harm (section 91R(1) (b)) and systematic and discriminatory conduct (s.91R (1)(c)). Examples of serious harm are set out in s.91R(1)(b) of the Act and include a threat to a person’s life or liberty, significant physical harassment and ill-treatment. Social ostracism and stigma, and some discrimination in accessing jobs, while extremely unpleasant, does not in the Tribunal’s view amount to serious harm of the type envisaged in the Act. The Tribunal notes that in Kathmandu she did not know people and that her reputation would not be blemished in any way. She did mention after this was put to her that she knew one of her brother’s friends, however the Tribunal does not accept that one of her brother’s friends would spread rumours to cause people to ostracise her there. There is country evidence that over the last decade divorce rates have tripled in Kathmandu, where the culture is most “westernised”, 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. This means that if the applicant did decide to live in Kathmandu, the situation may be easier for her, particularly as she has had experience living there previously. However even if she did live in her hometown, the Tribunal is not satisfied that the social ostracism she would experience would reach the level of serious harm under the Act. The Tribunal is also not satisfied that it would amount to systematic and discriminatory conduct in that it would be random, rather than systematically directed at the applicant.

10. It is clearly the case that the tribunal accepted the gravamen of much of the information that it had and that the applicant had put before it.  It accepted that domestic violence is prevalent in Nepal, Nepalese society is male-dominated and social ostracism and discrimination are evident for women in the social group to which the applicant claimed to belong.

11. However, for the reasons expressed by the tribunal (some of which are set out in the above extracts), the tribunal did not accept that the applicant had a well-founded fear of persecution based upon those matters.  The tribunal was not obliged to uncritically accept any or all of what the applicant claimed.  Moreover, the weight to be given to any of the information before the tribunal was a matter entirely for it.  Thus, even if there was country information available which was contrary to that relied on by the tribunal, the question of the accuracy and relevance of country information was one for the tribunal as part of its fact-finding function.

12. The applicant argues that the tribunal failed to “properly” consider that the applicant was threatened by her brother-in-law that he would make her disabled.  She argues that her circumstances as a separated woman, who has been subjected to violence by her husband and by other family members, the fact of her inability to locate to another place in Kathmandu, her economic hardships, her fear of her father, husband and other family members should have been considered and the cumulative effect of those matters should have been taken into account.

13. I agree.  Those matters ought to have been taken into account by the tribunal.  And they were.  The tribunal’s reasons reveal a careful analysis of the applicant’s claims and a consideration of each of them assessed against the information available to the tribunal from independent sources.  The conclusions reached by the tribunal, whilst by no means the only conclusions it may have reached on the material before it, were conclusions which were clearly open to it.

14. The tribunal’s findings of fact are not open to review in this Court as long as they are reasonably open to it on the evidence before it. The mere fact that other minds may have arrived at a conclusion other than that reached by the tribunal is not enough to establish jurisdictional error.

1. I accept the first respondent’s submissions that whilst the applicant’s first ground of review is expressed as an allegation of a failure to take into account a relevant consideration, it is in fact disagreement with the tribunal’s conclusion that it was not satisfied on the evidence before it that the applicant would face physical harm or discrimination amounting to serious harm in Nepal on the basis of her individual or cumulative claims.

Ground 2

1. As to her second ground of review, the applicant argues that as a result of the second respondent not properly taking into account “various international reports, and not giving proper weight to the information provided by the applicant”, it made a number of incorrect findings, including:

   a)that, as the brother-in-law from whom the applicant feared both physical and sexual harm is now divorced, and that he has not harmed anyone recently, it was unlikely that the applicant will be harmed by him;

   b)that women of 30 or over are not trafficked or forced into prostitution and that it occurs amongst young women only;

   c)that the applicant had made a new claim that she was not attacked because she remained cautious at all times; and

   d)that the applicant will not be harmed.

2. The first respondent points out, and it is the case, that the applicant repeats her complaints about the weight to be attached to certain country information and the failure of the tribunal to “properly” assess her claims.

3. None of the impugned findings were suggested to be facts which went to the tribunal’s jurisdiction.  None of the findings were said to have led to the tribunal depriving itself of jurisdiction or to it applying a wrong test as to what it was that the applicant needed to establish to succeed on her application.

4. I agree with the first respondent’s submissions that the tribunal’s decision reveals that the facts were carefully considered, along with the possibility that there may be an “ongoing threat” to the applicant.  As to the latter issue, the tribunal found:

   55.    As discussed above, Brother-in-Law one is now living away from the family and there does not appear to be any ongoing interest or communications with the applicant. He has not harmed her in the past, although he made improper advances and verbally threatened her when she was much younger. There is nothing to indicate he is an ongoing threat. The Tribunal is not satisfied therefore that there are substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to Nepal there is a real risk of significant harm from Brother-in-Law one.

5. In my view, the reasons given by the tribunal demonstrate that the conclusions reached by the tribunal were based on the findings that it made.  Those findings were open to it on the material before it.

6. Despite the applicant’s arguments to the contrary, the tribunal assessed the applicant’s risk of persecution in the future.  It did so, at least in part, by reference to the findings that it made as to what had occurred in the past.  The tribunal was entitled to adopt that approach: Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 574-576

7. Further, as the first respondent points out in Minister for Immigration and Border Protection v MZYTS (2103) 136 ALD 547 Kenny, Griffiths and Mortimer JJ held:

   [35] The determination of whether there is an objective basis for the person’s fear is the central part of the predictive or speculative task referred to in Chan and Guo. It can only be undertaken by reference to an assessment of, and findings of fact about, the circumstances in the person ‘s country of nationality at the time the person is likely to be returned there ...”

8. The tribunal did not accept the applicant satisfied the necessary thresholds that she faced a real risk of serious harm in the present circumstances.  The tribunal could not, as a matter of law, therefore find that the applicant held a “well-founded fear” of persecution.

9. The applicant contends that the tribunal’s decision was unreasonable because its finding in relation to State protection was made without evidence.  I accept that this contention is difficult to understand where the tribunal clearly set out the country information on which its finding was based and annexed a summary of that information to its reasons.

Ground 3

1. The applicant argues that she was denied natural justice because she was not given an opportunity by the tribunal to clarify any issues of concerns, particularly when her agent had requested that opportuity.  This ground of review is otherwise not particularised.

2. The applicant does not suggest that the tribunal did not comply with the statutory procedures mandated by Part 7, Division 4 of the Act. The applicant was invited to a hearing, attended and gave evidence at this hearing. The tribunal considered the evidence provided, including the applicant’s post-hearing submissions.

3. To the extent that the applicant suggests that the tribunal ought to have put to the applicant the findings that it intended to make so that she could “clarify” those matters, the submission is misconceived.  The tribunal was not obliged to do that, nor was it obliged to reveal to the applicant its reasoning processes ahead of its decision and its reasons for decision.

Conclusion

1. The grounds of review do not establish any jurisdictional error on the part of the tribunal.

2. The application for review must be dismissed with costs.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Deputy Associate: 

Date:       23 December 2014