SZSEU v Minister for Immigration

[2015] FCCA 394

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSEU v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 394

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.30, 36

Applicant: SZSEU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1133 of 2014

Judgment of: Judge Driver

Hearing date: 24 February 2015

Delivered at: Sydney

Delivered on: 24 February 2015

REPRESENTATION

The Applicant appeared in person by telephone

Solicitors for the Respondents: Ms M Stone of DLA Piper

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1133 of 2014

SZSEU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application filed on 28 April 2014, seeking review of a decision of the Refugee Review Tribunal (Tribunal).  The Tribunal decision was made on 3 April 2014.  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.  She had made claims for protection on several bases.  These included her fear of Maoists, her father’s political enemies, her fear of harm as a separated woman, her fear of harm from her neighbours, and her fear of her father’s creditors, including a person called Kaki. 

3. An earlier decision of the Tribunal, differently constituted, was set aside by this Court, by consent, due to a failure to consider the complementary protection criterion.  The Tribunal, as presently constituted, was unable to make a favourable decision on the papers and invited the applicant to attend the hearing.  The applicant attended that hearing on 30 January 2014.  The Tribunal records in detail the evidence given by the applicant at that hearing. 

4. The Tribunal had credibility concerns about the applicant’s claims to fear harm in Nepal.  It did not accept her claims concerning the Maoists, other political issues or her father.  The Tribunal was willing to accept that, as a woman in Nepal, the applicant may well face a degree of disadvantage, hardship and discrimination. The Tribunal accepted that women in Nepal are disadvantaged in terms of education and job opportunities.  The Tribunal accepted that separated women in Nepal face additional problems of social stigma. 

5. However, the Tribunal was not satisfied that the applicant would, in fact, be seen as a separated woman if she were to return to Nepal.  At [41] of its reasons[1], the Tribunal expressed a lack of satisfaction that the applicant and her husband had ever lived together, either in Nepal or in Australia.  The Tribunal concluded that the applicant would not suffer serious harm amounting to persecution at the hands of Maoists, a person named Kaki, neighbours either in her home village or in Kathmandu, or by members of the society generally.  The Tribunal took into account that the applicant had returned to Nepal on three occasions since she first arrived in Australia in June 2009. 

   [1] Court Book, pages 181-182

6. For the purposes of considering the complementary protection criterion, the Tribunal relied on its earlier factual findings.  However, at [47] of its reasons[2], the Tribunal gave specific consideration to the applicant’s circumstances as a woman in Nepal. The Tribunal found that the applicant might encounter some degree of hardship, disadvantage and discrimination. However, the Tribunal was not satisfied that that would reach the level of significant harm contemplated by s.36(2A) of the Migration Act 1958 (Cth). The Tribunal, therefore, affirmed the decision of the Minister’s delegate.

   [2] Court Book, page 183

7. The applicant relies upon her original show cause application, which contains two grounds:

1.      Natural Justice and Procedural Fairness not afforded.

I applied for a Refugee Visa on 15 November 2011 and the delegate of the Minister refused my application on 14 March 2012.  I applied for a review of the decision on 19 April 2012 to the RRT.  On 9 October 2012 the RRT affirmed the decision of the delegate’s decision and I applied to the Federal Circuit Court to seek judicial review of the decision made by the RRT on 12 September 2013.  The Federal Circuit Court ordered the Tribunal’s decision be set aside and the matter be remitted to the Refugee Review Tribunal for determination according to the law.  I was interviewed by the RRT again on 30 January 2014 with the assistance of an interpreter in the Nepali and English languages.  I feel the interviewer did not listen to me properly and only repeated what had been discussed during my earlier interview with them.  I feel the interviewer had already made up his mind not to grant me a visa so my evidences and were not considered properly.  I was not given Natural justice.

2. Section 36(2)(A) and (AA) [Complementary] Protection criterion not considered carefully.

The Tribunal has not conducted their investigations properly and considered Section 30(2)(a) or (aa) according to the law.  I claim I satisfy Section 30(2)(a) or (aa) to be considered a refugee in Australia.  They only relied on the earlier interview and did nothing considerably different on my second interview.  Instead of investing properly the RRT only repeatedly said that it accepted that I would face some degree of disadvantages being a separated woman, it did not accept that the fear was well founded.  I feel the [T]ribunal lacked proper investigations to conclude that I did not satisfy the criteria for the grant of a Complementary visa under the Australian Migration law.

1. I have before me as evidence a short affidavit by the applicant filed with the application, as well as the court book filed on 23 May 2014. 

2. Neither the applicant nor the Minister filed any written submissions.

3. I gave the applicant the opportunity, in procedural orders made by consent on 9 July 2014, to file and serve an amended application and additional evidence, including any transcript of the Tribunal hearing.  She has not taken up that opportunity.  Order 5 of those consent orders listed the matter for a show cause hearing today at 2.15pm.  When the matter was called this afternoon there was no attendance by or on behalf of the applicant.  The matter was called twice.  In addition, before I came on the bench, the Minister’s solicitor attempted to contact the applicant on her nominated mobile telephone number.  In those circumstances, I dismissed the application on account of the applicant’s non-attendance. 

4. However, shortly afterwards, the applicant returned the telephone call. She claimed that she thought the hearing was tomorrow at 9.00am.  Although I regarded that explanation with some scepticism, I agreed to vacate the dismissal order and associated costs order.  I heard the applicant by telephone. 

5. The applicant was not able to substantiate her claim of apprehended bias.  She claims that at the Tribunal hearing she was told that she could live safely in India.  That may be so but it does not indicate bias.  Whether or not that issue was raised at the hearing, it does not figure at all in the Tribunal’s decision.  On the basis of the material before me, there is no arguable case of apprehended bias. 

6. The applicant also submitted orally that she could not return to Nepal because of her status as a divorced woman.  As I explained to her in the course of oral argument, the Tribunal was not satisfied that she would be seen in Nepal as a separated or divorced woman.  However, the Tribunal considered her circumstances as a woman in Nepal in the course of considering her claims against the complementary protection criterion.  There is no arguable case that the Tribunal erred in that regard.

7. The applicant has failed to demonstrate an arguable case of jurisdictional error by the Tribunal. 

8. Accordingly, I will dismiss the application, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), and I so order.

9. In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $3,000.  The applicant indicated that she might require the opportunity to pay by instalments.  I will not require payment of costs by any particular time. 

10. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000. 

11. The applicant also specifically sought the repetition of earlier information I had provided to her concerning her rights of appeal.  I provided that information to her orally on two occasions during the course of today’s hearing. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  26 February 2015