SZRUT v Minister for Immigration

[2012] FMCA 1236

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRUT v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 1236

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution on various bases in Nepal – show cause order made.

Migration Act 1958 (Cth), s.36

Applicant: SZRUT

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2077 of 2012

Judgment of: Driver FM

Hearing date: 20 December 2012

Delivered at: Sydney

Delivered on: 20 December 2012

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr M Alderton
Sparke Helmore

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(b) of the Federal Magistrates Court Rules 2001 (Cth), the Minister is ordered to show cause why relief should not be granted in relation to the ground in the amended application filed on 12 December 2012 and, in addition, in relation to the issue of whether the Tribunal gave meaningful consideration to the question of complementary protection, having regard to the applicant’s circumstances.

2. The applicant is granted leave to file further affidavit evidence in support of the application as amended, including a transcript of the hearing conducted by the Tribunal no later than 29 March 2013.

3. Any affidavit evidence upon which the first respondent wishes to rely is to be filed and served no later than 19 April 2013.

4. The applicant is to file and serve on the respondents any evidence in reply no later than 3 May 2013.

5. The applicant is to file and serve on the respondents an outline of written submissions and list of authorities not less than 14 days before the final hearing. 

6. The first respondent is to file and serve on the applicant an outline of written submissions and list of authorities not less than 7 days before the final hearing.  A copy is to be emailed to my associate.

7. The matter is listed for a final hearing at 10.15am on 27 May 2013.  Estimated length of hearing 2 hours.

8. Costs of today’s show cause hearing are reserved.

9. Pursuant to Part 12 of the Federal Magistrates Court Rules 2001, the Court will issue a certificate for the applicant to receive pro bono legal assistance for preparation for final hearing and representation at the hearing.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2077 of 2012

SZRUT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me a show cause application seeking review of a decision of the Refugee Review Tribunal (the Tribunal).  The Tribunal decision is dated on its face 28 August 2012 and was certified on behalf of the Tribunal’s district registrar the following day.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 

2. The applicant is from Nepal and made multi-faceted claims of persecution in that country.  She apparently arrived in Australia on 6 February 2006 and applied for a protection visa on 23 August 2011.  The Minister’s delegate refused that application on 22 March 2012 and the applicant applied to the Tribunal for review of that decision.  The Tribunal was unable to make a favourable decision on the papers and invited the applicant to attend a hearing.

3. That hearing was conducted on 9 August 2012.  The hearing was conducted in English, which is a language in which the applicant is fluent.  The applicant’s claims drew upon her experience of coming from a broken family, her status as a victim of child sexual abuse, her status as a woman, her Christian religion, her caste and her fear of the Maoists and what she described as her imputed political opinion.

4. The Tribunal purported to deal with all of those claims.  The Tribunal was not satisfied, based on the material before it, that the applicant had a well-founded fear of persecution sufficient to support the grant of a protection visa or that she faced a risk of significant harm within the meaning of the complementary protection criterion.

5. The show cause application filed on 24 September 2012 was not particularly informative.  The applicant stated in that application that she believed that the Tribunal did not understand why she would be harmed if she was deported from Australia.  The applicant now relies upon an amended application filed on 12 December 2012.  That application contains one ground:

   The Tribunal constructively failed to exercise its jurisdiction by failing to consider whether, on return to Nepal, the applicant might be subject to extortion threats by Maoists not by reason of connection to her family, but because she would belong to a particular social group, namely, people who had lived abroad and are considered to be wealthy.

6. The application was prepared by Mr Justin Smith of counsel, the applicant’s panel adviser.  Mr Smith confirms that he provided advice to the applicant on 12 December 2012 and prepared the amended application.

7. The Minister contends that, notwithstanding the amended application, there is no arguable case of jurisdictional error by the Tribunal.  The court book filed on 1 November 2012, which I have before me as evidence, does not point to any express claim by the applicant that she feared harm from the Maoists by reason of her membership of a particular social group of persons who had been living outside Nepal and would be perceived as being wealthy.

8. The court book discloses that the applicant had informed the Tribunal of a single incident she had experienced in 2005 when her father had been threatened.  The Tribunal dealt with that claim at [77] of its reasons[1] and reached the conclusion set out at [79] of its reasons:

   [1] court book (CB) 153

   77. The applicant has claimed that her father has been subjected to extortion threats by Maoists in Nepal.  Extortion threats by Maoists, especially against people who have lived abroad and are considered to be wealthy, are well documented by organisations such as the US State Department (see, for example, their most recent Country Report on Human Rights Practices 2011, published in April 2012).  The Tribunal therefore accepts that the applicant’s father has been subjected to threats by Maoists.  However, the applicant does not claim that extortion attempts have been made against her father since they have moved house nor that her father or any family member has been otherwise harmed by Maoists.  She does not claim that she herself has come to any harm because of any actions taken by Maoists against her father.

   79. The Tribunal has considered whether there is a real chance that the applicant will be persecuted in a Convention sense if she returns to Nepal in the foreseeable future.  She has claimed to fear persecution in future for the following reasons: because she is a Christian; because she is an unmarried female; because she is of the Rai caste; because she has an imputed political opinion which is anti-Maoist.  She claims to be in fear of persecution by a range of individuals and a political organisation, as well as society and the state.

9. In her oral submissions today, the applicant asserted that she had provided information to the Tribunal at the hearing conducted by it that might, hypothetically, have been sufficient to require the Tribunal to consider the claim now postulated in the amended application.

10. An immediate difficulty is that I have no transcript of the hearing conducted by the Tribunal.  The applicant told me from the bar table that she was born in 1982 in Nepal and in 1985 moved with her family to Singapore.  She lived there till 2005 when she returned to Nepal for eight to nine months.  She left Nepal in February 2006 and came to Australia.  Those facts, if true, would obviously support the proposition that the applicant has spent most of her life outside Nepal. 

11. As to perceived wealth, the applicant’s employment history appears to be limited to what she has done in Australia.  She is obviously well educated and has about her an air of some sophistication.  It is possible that the information provided by the applicant to the Tribunal might have been sufficient to require the Tribunal’s attention to the claim now asserted.  On the basis of the material in the court book, the ground in the amended application appears tenuous, but without the opportunity to consider a transcript of the Tribunal’s hearing, I do not have confidence to find at this interlocutory stage that the claim is not arguable.

12. I also have some concern about the Tribunal’s treatment of the complementary protection criterion.  This is limited to what is set out at [95] and [97] of the Tribunal decision[2]:

    [2] CB 157

    95. The Tribunal has found that while the applicant may experience discrimination if she returns to Nepal, she will not be seriously harmed there for any reason.  [T]he Tribunal does not accept that discrimination amounts to “significant harm” within the meaning of the Complementary Protection legislation.  It therefore follows that the Tribunal is not satisfied on the evidence before it that there is a real risk that the applicant will suffer significant harm if she is removed from Australia to Nepal.

    97. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).  The Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under s.36(2)(aa).

13. The applicant’s experience of sexual abuse as a child, her vulnerable status in Nepal as a young woman who has spent virtually her entire life outside the country, and country information concerning violence towards and harassment of women in Nepal would have suggested to me some more detailed discussion by the Tribunal of the complementary protection criterion.

14. Having regard to those considerations, I have come to the conclusion that the applicant should be given the opportunity to address the amended application and the issue of complementary protection consideration at a final hearing.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM

Date:  21 December 2012