SZRSK v Minister for Immigration

[2013] FCCA 8

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRSK v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 8

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

The Applicant in these proceedings is not to be identified pursuant to s. 91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZRSK.

Migration Act 1958 (Cth), ss. 36(2)(aa), 91X, 474

Attorney-General (NSW) v Quin (1990) 170 CLR 1
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407

Applicant: SZRSK

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1776 of 2012

Judgment of: Judge Lloyd-Jones

Hearing date: 14 February 2013

Delivered at: Sydney

Delivered on: 12 April 2013

REPRESENTATION

The Applicant: The Applicant appeared in person with the assistance of a Nepalese interpreter

Counsel for the Respondents: Mr J. Smith

Solicitors for the Respondents: Mr N. Buck of Minter Ellison Lawyers

ORDERS

1. The application filed on 16 August 2012 and subsequently amended on 15 November 2012 is dismissed.

2. The Applicant is to pay the First Respondent’s costs and disbursements of, and incidental to, the application. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1776 of 2012

SZRSK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. In accordance with the Court’s orders made on 7 August 2012, the solicitors for the first respondent, the Minister for Immigration & Citizenship (the “Minister”), were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing.  This order was complied with and the volume of material provided is identified as the Court Book (“CB”), marked Exhibit “A” and is the only evidence before the Court.  

2. At the First Court Date directions hearing the applicant indicated she sought to participate in the NSW RRT Legal Advice Scheme.  This referral was made and written advice was provided after attending a conference with her allocated Panel Advisor.  The applicant was granted leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any supporting affidavit material, on or before 16 November 2012.  The applicant elected to amend her application and did so on 15 November 2012.

3. This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review in respect of a decision of the Refugee Review Tribunal (the “Tribunal”) being RRT Case Number 1203471, a decision of Tribunal Member P. Leehy dated 16 July 2012, affirming the decision of a delegate of the first respondent, the Minister, to refuse the applicant a Protection (Class XA) visa.

Background

1. In setting out the following background material I have quoted directly from the Court Book and submissions prepared by Mr J. Smith of counsel.  I have not made further attribution as this would make the summary unwieldy.  Where this information is extracted from the Court Book, each item contains a reference for that material.

2. The applicant is a female citizen of Nepal who arrived in Australia on 30 June 2009 (CB 1-34).  The applicant arrived as a dependent to the holder of a Vocational Education Sector TU-572 visa (CB 106).  The applicant applied for a Protection (Class XA) visa on 16 August 2011 (CB 1-34).  The applicant’s claims were set out in a supporting document lodged on 30 August 2011 (CB 35-39).  The applicant also submitted a number of articles from various sources in support of her claims (CB 40-75).  The applicant claimed that she and her husband came to Australia to avoid being harmed by her family members, who were angry that she had converted to Christianity and married a person of a lower caste (CB 36).  The applicant further claimed that her family had reported false allegations about her and her husband that had resulted in charges being laid against both of them; against her husband for kidnapping her, and against the applicant for forcibly converting people to Christianity (CB 37).  The applicant stated that she was verbally and physically assaulted by members of her family and the threat still remains if she were to return to Nepal (CB 37).

The Delegate’s Decision

1. The applicant was invited to attend an interview with a delegate of the Minister on 10 January 2011 (CB 76-77).  The applicant attended the scheduled interview to discuss her claims, however, the interview was suspended as the telephone interpreter had difficulties in hearing the applicant’s responses.  The applicant was invited to and attended a second interview held on 10 February 2011 (CB 108).

2. The application for a Protection visa was refused by the Minister’s delegate on 15 February 2012.  The delegate referred to and made conclusions on the claims of the applicant in respect to her inter-caste marriage and whether it was a marriage of convenience, her claim of conversion from Hindu to Christianity, her delay in lodging the protection visa and the issue of state protection in Nepal (CB 113-118).  The delegate concluded that she was not satisfied the applicant faced persecution for a Convention reason prior to departing Nepal.  The delegate found that the applicant’s fear of persecution, as defined under the Refugees Convention, was not well-founded and there would be no real chance of persecution occurring (CB 118-119).     

The Tribunal’s Decision  

1. The applicant applied to the Tribunal for review of the delegate’s decision on 16 March 2012 (CB 120-125).  The applicant was invited to and attended a hearing before the Tribunal held on 28 June 2012 (CB 136 and 145).  The Tribunal made its decision on 16 July 2012 affirming the decision under review not to grant the applicant a Protection (Class XA) visa (CB 169-192).

2. The applicant made a submission dated 30 August 2011 to the Department providing further information about her claims, together with country information.  The applicant’s statement of claims was summarised by the Tribunal at [25] of its Decision Record (CB 173-174):

   ·    The applicant’s family was considered wealthy in her community and was well-respected;

   ·    After high school the applicant moved to Kathmandu for further studies; her father ran a timber factory there;

   ·    The applicant made friends with people attending a Christian church close to her father’s factory, started going to church services every Saturday and converted to Christianity; this angered her parents who are Hindu fundamentalists;

   ·    The applicant’s father worked sometimes as a priest, and was a representative of the Nepali Congress Party; some of her uncles were Maoists; the applicant’s sisters all married into respectable families, but the applicant refused to agree to any marriage arranged by her parents, which angered them;

   ·    The family subjected the applicant to verbal and psychological abuse because of her conversion to Christianity;

   ·    The applicant was trying to establish a business, and met and fell in love with a lower caste man, [ex-husband’s name]; her family would not accept [ex-husband’s name] because of his caste, so the applicant and [ex-husband’s name] married secretly on 14 April 2008; her family were furious about the marriage;

   ·    The applicant’s family treated her and her husband very badly; her brothers assaulted her verbally and physically, and removed them from the house; they destroyed her beauty parlour and took away equipment and documents; they told her neighbours that they would kill her and her husband; her family said that if she did not renounce Christianity and leave [ex-husband’s name] they would kill her; the applicant and her husband were forced into hiding and then left for Australia;

   ·    The applicant’s family reported false allegations against the applicant and her husband; [ex-husband’s name] was charged with kidnapping  the applicant and she was forcibly converting people to Christianity;

   ·    In Australia, the applicant’s relationship with her husband broke down because of financial and employment difficulties; they then divorced;

   ·    The applicant fears constant threats of physical violence and threats to her life from her family, and potential fines and imprisonment by the authorities if she returns to Nepal; she will face discrimination and threats from other Hindu extremists, friends of her family and people from her village;

   ·    The applicant says that the authorities are corrupt and will not protect her.

3. The Tribunal dealt first with the claims concerning her marriage.  In spite of serious concerns held about the applicant’s credibility, the Tribunal accepted that the applicant had married a man of lower caste and that this would have angered her family, however it did not believe her claim that her family had come looking for her in a village outside Kathmandu (CB 182 at [69]).  It found that the applicant’s divorce had removed the cause of her family’s or anyone else’s anger at her inter-caste marriage in Nepal as that marriage was now dissolved (CB 182 at [70]).

4. In relation to the applicant’s claims in respect of Christianity, the Tribunal found that the applicant’s family had not mistreated her because of her interest in that religion (CB 183 at [71], [72]) but accepted that she currently attends a Christian church and was baptised (CB 183 at [73]). However, it found that conversion was allowed in Nepal and, although proselytising was not, the applicant had not proselytised in the past and was not likely to do so in the future (CB 183-184 at [74]).  It found that there was no real chance that she would be persecuted for reasons of her religion by the authorities, her family or anyone else in Nepal (CB184 at [75]).

5. The Tribunal did not accept that any charges had ever been laid against the applicant or her former husband and found that, while the situation may be difficult for a while, the applicant would not face serious harm in Nepal for reason of her membership of any particular social group, such as “women in Nepal” or “single women in Nepal” (CB 184 [77]).  Similarly, having considered the claims cumulatively, the Tribunal found that there was no real chance that the applicant would face persecution for reason of her situation as a single woman who is now divorced from a lower caste man and has converted to Christianity (CB 185 [79]).

6. Finally, the Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there was a real risk that she would suffer significant harm (CB 185 [82]).

Legislative Framework

1. The decision of the Tribunal is a privative clause decision as defined by s.474(2) of the Migration Act. Section 474 operates to prevent the judicial review of all decisions under the Migration Act except those vitiated by jurisdictional error.

Application before the Court

1. The applicant filed an application for judicial review in the Federal Magistrates Court on 16 August 2012.  Pursuant to the application, the applicant sought the following order:

   An order that the decision of the tribunal or Minister be quashed.

2. Orders were made in these proceedings on 2 October 2012 granting leave to the applicant to file an amended application and any additional affidavits on or before 16 November 2012.  The applicant elected to file an amended application.  The orders sought by the applicant in the Amended Application are:

   1. An order that the decision of the Refugee Review Tribunal be quashed.

   2. A writ of mandamus directed to the Tribunal, requiring it to determine the applicant’s application according to law.

   3. An order directed to the Second Respondent directing to appoint another member of the tribunal to re-hear the case.

   4. An order directed to First Respondent to pay all court costs.

3. The Amended Application pleads four grounds:

   1. The Tribunal failed to address the claim that single women, once married with lower cast, divorced are always mistreated, harassed and intimidated by the community in Nepal.  It fails to understand the real situation of Nepal.

   2.  The decision was not made in good faith.  The Tribunal failed to address that as a single divorced woman it will be difficult finding housing and employment in Nepal.

   3. The Tribunal failed to address that as a Christian bible commended that you need to proselytise and share the good news which is illegal in Nepal. (Matthew 28:19 Says “Go, and make disciples of all nations, baptizing them in the name of the Father and of the Son and of the Holy Spirit.”

   4. The Tribunal failed to consider all integers of the applicant’s claim

   Particulars

   a. The Tribunal failed to give any genuine and realistic consideration to whether Australia owed the Applicant complimentary protection.

   b. The Tribunal failed to consider the actual situation faced by the Applicant rather than simply relying on the legal and constitutional position in Nepal.

4. At the hearing, when asked if she had any oral submissions to make in support of her claims, the applicant stated “It’s a real fact.  Whatever it is, I’ve already submitted that before.  That is the only thing I have to let you know” and “I’ve got nothing to say.  Just that I’m pregnant right now… And I can’t go back to Nepal… And it’s very difficult situation for me” (Transcript 14 February 2013, p. 3.11-26).

The Minister’s Submissions

1. The Minister argues that the first three pleaded grounds in the Amended Application all concern factual matters that were entirely within the Tribunal’s jurisdiction and are not able to be reviewed in this court: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 per Brennan J. The Minister submits that, for that reason, those grounds should be rejected.

2. The Minister submits that the fourth pleaded ground is that the Tribunal erred in connection with the complementary protection criterion in s.36(2)(aa) of the Migration Act by considering the legal and constitutional position in Nepal, rather than the situation actually faced by the applicant. The Minster argues that there is no basis for this ground. The Tribunal clearly considered the applicant’s personal circumstances including her religion, gender, marriage and her family, as well as the Christian community in Kathmandu (CB 184-185). The Minister submits that in light of that, the assertion that the Tribunal failed to give genuine and realistic consideration to the criterion amounts to no more than another attack on the merits of the Tribunal’s decision.

Consideration

1. The applicant appeared in person assisted by an interpreter competent in translation between Nepalese and English.  The applicant confirmed she had received her legal advice via a conference with her allocated panel advisor, which was subsequently confirmed in writing.  The panel advisor indicated that he had provided the applicant with an amended application.  Upon viewing the amended application filed on 15 November 2012, it is noted that the first three grounds that were originally pleaded are repeated.  There is a newly pleaded ground identified at Ground 4.  On the material before the Court, it appears that the applicant has merely added an additional ground, presumably provided by the panel advisor, to the original application.  At the First Court Date directions hearing, held on 2 October 2012, Order 9 required the applicant to file and serve in the registry a short written outline of submissions and a list of authorities 14 (fourteen) days before the date of the final hearing.  The applicant confirmed that she had not prepared or filed any written submissions.  When invited to make any oral submissions in support of her amended application, the applicant indicated that she did not wish to say anything.

2. After submissions were made by Mr Smith on behalf of the Minister, the applicant confirmed that the interpreter had read to her the contents of Mr Smith’s written submissions.  When asked whether the applicant had understood the contents of that document, she confirmed that she did and when asked whether she had any comments in respect of the respondents written submissions, the applicant stated “[i]t’s a real fact.  Whatever it is, I’ve already submitted that before.  That is the only thing I have to let you know.”  I then informed the applicant what I intended to do in respect of preparing a written judgment on the material before the Court and whether she had any questions in respect to the adoption of that course.  The applicant’s response “I’ve got nothing to say.  Just that I’m pregnant right now and I can’t go back to Nepal.  And it’s a very difficult situation for me.”

3. Turning to the pleaded grounds in the Amended Application, I accept the submissions made by Mr Smith that Grounds 1, 2 and 3 all concern factual matters that were entirely within the Tribunal’s jurisdiction and are not reviewable by this Court.

4. On a fair reading of the Tribunal’s decision, the Tribunal lists the various categories of country information available to the Tribunal in respect of the issues of “caste and inter caste marriage”, “Christians in Nepal” and “women in Nepal”.  In addition to this material, at [26] of the Decision Record (CB 174) it states:

   The applicant submitted country information in support of her claims, including a 2009 publication by Christian Solidarity Worldwide entitled “Nepal: Emerging threat of Hindu extremism”; RRT Country Advices on Christians in Nepal (NPL38240, NPL37529, NPL36175) and intercaste marriage (NPL37044); Human Rights Watch 2011 Report on Nepal; Amnesty International 2011 Report on Nepal; Freedom House, Freedom in the World 2011 Report; Himalayan Times article dated July 2010 headed “Locals evict inter-caste couple” about a couple in a remote village; Human Rights Watch report dated 15 March 2011 headed “Nepal: No Justice for Gang-Rape Victim”.

5. In its “Findings and Reasons” the Tribunal addresses each of these issues under their respective sub-headings.  The overriding concern of the Tribunal Member, in respect of all of the categories of issues, was the applicant’s credibility.  Each of these concerns are clearly articulated by the Tribunal, as evidenced in the following passages.  First, at [68] (CB 182) it states:

   The Tribunal had serious concerns about the applicant’s credibility… The Tribunal had significant concerns about credibility of the applicant’s claim regarding charges laid with the police against her and her ex-husband.  …

   Then at [69] (CB 182):

   The Tribunal is doubtful that the applicant ever contracted a marriage, or that it was an intercaste marriage… However, the Tribunal has given the applicant the benefit of the doubt, and accepts that she married a man of lower caste. …

   Then at [71] (CB 183):

   …The Tribunal does not accept that the applicant’s family would have allowed her, as a young single woman, to go New Delhi for 7 months without finding out about where and with whom she would live.  Yet, according to the applicant, her family did not find out that she was involved with Christianity at all until the end of 2007.  The Tribunal does not accept that the applicant’s family would have supported her financially when she established her business in about October 2007 if they had been angry with her about her interest in Christianity… Given the confusion of the applicant’s account of events, the Tribunal does not accept that the applicant’s family mistreated her because of her interest in Christianity. …

   Then at [72] (CB 183):

   …The Tribunal does not accept that the applicant’s business was attacked because of her interest in Christianity.

   Then at [74] (CB 183-184):

   …The country information indicates that conversion is allowed in Nepal, though proselytising is not.  On the evidence before it, the Tribunal does not find that the applicant has proselytised in the past, nor is likely to do so in the future.  It is not satisfied that there is a real chance that she will be persecuted in a Convention sense by the Nepalese authorities if she returns to Nepal.

   Then at [75] (CB 184):

   …The Tribunal has found the applicant to be lacking in credibility in her claims about her family’s mistreatment of her in the past, and it is not satisfied on the evidence before it that there is a real chance that the applicant will be persecuted in a Convention sense by family members or by the community for reason of her religion if she returns to Nepal in the foreseeable future.

1. The Tribunal’s adverse credibility findings and consequent rejection of the applicant’s claims is a matter for the Tribunal par excellence: see Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 per McHugh J at [67]:

   …[A] finding on credibility which is the function of the primary decision maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. …

2. Further, I am satisfied that the Tribunal’s findings in this respect were open to it on rational grounds on the material before it and they disclose no error in its treatment of the applicant’s credibility: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547. The Tribunal’s Decision Record, which is the only evidence before the Court in relation to the conduct of the hearing, indicates the concerns it had about aspects of the applicant’s evidence which were raised with her during the hearing. The applicant was unsuccessful because of the view the Tribunal took of the facts and, in particular, its finding that she was not credible.

3. In the additional ground (Ground 4) pleaded in the Amended Application, the particulars raised the issue of whether Australia owed the applicant complementary protection. A convenient summary of the objects of this new provision of the Migration Act is contained in the then bill’s Second Reading speech on 24 February 2011, where the Minister did explain the effect of s.36(2)(aa) of the Migration Act as asserted by Schedule 1, Item 12, as follows; [Hansard, 24 February 2011]:

   The Migration Amendment (Complementary Protection) Bill 2011 amends the Migration Act to eliminate a significant administrative hole in our protection visa application process.

   Under the Migration Act, as it currently stands, only those people fleeing persecution for one of the five reasons outlined in the Convention Relating to the Status of Refugees - race, religion, nationality, social group or political opinion - are eligible to receive a protection visa through the usual process.

   Applicants who fall outside these categories are not considered refugees and, consequently, their applications must be rejected by the Department of Immigration and Citizenship and also by the Refugee Review Tribunal. 

   But some of these people are fleeing significant harm – be they women fleeing so called ‘honour killings’ or, in some certain circumstances depending on the nation, people fleeing persecution on the basis of their sexual preference.

   These people can fall outside the categories recognised by our current protection visa process. 

   So their applications will be rejected at first instance – and again at review – even where Australia’s non-refoulement obligations and other international treaties ensure that we cannot and will not send them back to their countries of origin.

   These treaties are the International Covenant of Civil and Political Rights (ICCPR),  the Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (CAT) and the Convention of the Rights of the Child (CROC). 

   Protection from return in situations that engage our non-refoulement obligations under these treaties is known as ‘complementary protection’, in the sense that this complementary to the protection given under the refugees convention.

   Under the current system, these people, who have often fled their countries in fear of their lives, must go through our administrative processes knowing they are going to be rejected.

   …

   The bill establishes new criteria for the grant of a protection visa in circumstances that engage Australia’s non-refoulement obligations under the human rights treaties other than refugees convention.

   Australia will not return a person to a place where there is a real risk that a person will suffer particular types of significant harm contained in the relevant human rights treaties, namely:

   ·   the arbitrarily deprivation of life;

   ·having the death penalty carried out;

   ·being subjected to torture;

   ·being subjected to cruel or inhuman treatment or punishment; or

   ·being subjected to degrading treatment or punishment.

4. In the “Findings and Reasons”  the Tribunal Member considered the following claims:

   ·    The applicant’s inter-caste marriage and its subsequent dissolution;

   ·    The applicant’s Christian faith and related issues;

   ·    Charges laid against the applicant; and

   ·    The applicant’s situation as a divorced woman in Nepal.

5. The issues that had been raised by the applicant clearly fall within the provisions of the Refugees Convention and do not invoke the specific categories which relate to the Complementary Protection criterion in s.36(2)(aa) of the Migration Act. The argument advanced by the applicant was that the Tribunal Member focussed on the legal and constitutional position in Nepal, rather than the situation actually facing the applicant. The particulars do not specify whether this complaint is directed to the Member’s approach in considering the provisions of the Refugee Convention or, alternatively, the Complementary Protection criteria. However, in the context of particular 4(a), this complaint is presumably directed specifically to the Complementary Protection criteria. As the issues raised by the applicant all fall clearly within the scope of the Refugees Convention, the Tribunal’s observations, in the conclusion, at [84] indicate that both approaches have been considered, but as none of the criteria effectively summarised in the second reading speech noted above at [28] were being raised by the applicant in her claim, a more detailed examination of this provision of the Act is not required.

Conclusion

1. I am satisfied that none of the grounds pleaded in the Amended Application can be sustained.  On a fair reading of the Tribunal’s Decision Record no jurisdictional error is apparent.  Consequently, the applicant’s claim should be dismissed with costs. 

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones

Date:  12 April 2013