SZSEU v Minister for Immigration and Border Protection
[2015] FCA 513
•20 May 2015
FEDERAL COURT OF AUSTRALIA
SZSEU v Minister for Immigration and Border Protection [2015] FCA 513
Citation: SZSEU v Minister for Immigration and Border Protection [2015] FCA 513 Appeal from: SZSEU v Minister for Immigration [2015] FCCA 394 Parties: SZSEU v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number(s): NSD 197 of 2015 Judge(s): JAGOT J Date of judgment: 20 May 2015 Legislation: Migration Act 1958 (Cth) s 91R(2)
Federal Circuit Court Rules 2001 (Cth) r 44.12(1)(a)Date of hearing: 20 May 2015 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 16 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: Ms M Stone of DLA Piper Australia
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 197 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZSEU
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
JAGOT J
DATE OF ORDER:
20 MAY 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The notice of appeal dated 10 March 2015 be dismissed.
2.The appellant/applicant pay the first respondent’s costs of the notice of appeal, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 197 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZSEU
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
JAGOT J
DATE:
20 MAY 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicant is a citizen of Nepal who applied for a protection visa on 18 November 2011. The delegate of the Minister refused to grant the visa in March 2012, and the applicant then applied for review to the Refugee Review Tribunal (the Tribunal). The Tribunal conducted a hearing in relation to the application on 30 January 2014, which it describes as the second tribunal hearing following an earlier hearing in 2012, the evidence before which is also set out in the Tribunal’s reasons.
Before the Tribunal, the applicant made claims for protection on a number of different bases, including her fear of Maoists (her father’s political enemies), her fear of harm as a woman who was married but was also separated, as well as her fear of harm from neighbours and certain creditors of her father.
The Tribunal considered all of these claims. It was not satisfied that the applicant would face a risk of harm from Maoists if she should return to Nepal, whether or not for reasons connected with her father’s political activities.
It also was not satisfied that she would be at any risk of harm from creditors of her father should she return to Nepal.
It considered that, in terms of risk from her neighbours, it might well be the case that the applicant did not wish to return to her village because of embarrassment over the impact of her father’s conduct, but was, again, not satisfied that she would be at any risk of harm from her neighbours.
The Tribunal then dealt with the applicant’s claims based on her status as a woman who was separated from her husband. It noted that women in Nepal suffered some degree of disadvantage compared to men, but that this did not rise to a level of serious harm so as to constitute persecution. It noted that the previously constituted Tribunal also accepted that the applicant might suffer hardship as a member of a particular social group, being women in Nepal separated from their husbands, but, again, did not consider that this would constitute persecution as contemplated by s 91R(2) of the Migration Act 1958 (Cth). Pursuant to that section, what is required is a well-founded fear of serious harm for a reason relating to the Refugees Convention, as amended by the Refugees Protocol.
On the material before it, the presently constituted Tribunal concluded that women in Nepal may well face a degree of disadvantage compared to men and that, additionally, separated women may face problems of social stigma and be blamed for the breakdown of the marriage. However, the Tribunal concluded that it was unable to be satisfied that harm at this level would amount to serious harm constituting persecution of the applicant, particularly given that the applicant had 14 years of formal education and had previously been employed in the private sector.
The Tribunal, having reached these conclusions, also noted that it was not, in fact, satisfied that the applicant would be seen as a separated woman if she were to return to Nepal, having regard to what it described as the lack of information concerning her husband, the brief duration of what the applicant claimed to have been a “love marriage”, and conflicting information the applicant provided to the Tribunal about where she and her husband lived in Nepal. The Tribunal strongly doubted that the applicant was ever genuinely married and was of the view that the evidence instead pointed to the marriage either having been contrived for the purpose of the applicant being able to enter and reside in Australia pursuant to some commercial arrangement, or that the documents she had submitted were simply false, so that no marriage had taken place. As the Tribunal put it, it was not satisfied that the applicant and the relevant person ever lived together as man and wife in Nepal or Australia, so it was not satisfied that anyone in Nepal would actually see the applicant as someone separated from her husband.
The Tribunal thus affirmed the decision of the Minister’s delegate not to grant a protection visa.
The matter came before the Federal Circuit Court of Australia (the FCCA) by way of an application for judicial review. On February 2015, the FCCA dismissed the application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), with the consequence that the FCCA’s orders are taken to be interlocutory. The application before the FCCA contained two grounds, neither of which are put before this Court on the present matter. The FCCA considered that neither ground demonstrated any arguable case for jurisdictional error by the Tribunal, which led to the making of the orders dismissing the application.
The applicant then filed a notice of appeal from the FCCA. However, as the Minister has pointed out in the written submissions, the applicant does not have a right of appeal because the orders of the FCCA were interlocutory orders. In these circumstances, I propose to treat the notice of appeal as an application for leave to appeal. That document contains two proposed grounds of appeal, which are as follows:
(1)His Honour the Federal Circuit Court Judge erred in not holding that the Tribunal made jurisdictional error while applying the criteria specified in s 36(2) (aa) of the Migration Act.
Particulars
The court in paragraph 6 of its order observed that “The Tribunal found that the applicant might encounter some degree of hardship, disadvantage and discrimination”. Having accepted that the appellant would be subject to discrimination the Tribunal failed to apprise the evidence of the appellant as to whether such discrimination amounted to a systematic and discriminatory conduct. It is submitted that the settled legal position is that discrimination may nevertheless give rise to a reasonable fear of persecution if they produce, in the mind of the person concerned, a feeling of apprehension and insecurity as regards her future existence. The Tribunal failed to give findings on these aspects.
(2)His Honour the Federal Circuit Court Judge erred in not holding that the Tribunal made jurisdictional error as it failed apply the test of well founded fear of persecution to the correct social group to which the applicant belongs viz Separated/Divorced Nepali women and the Tribunal also exhibited apprehended bias.
Particulars
The court in paragraph 4 of its order observed that “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”. The Tribunal having so observed failed to recognise the evidence of the appellant that she was a married women in spite of filing a valid legal document viz marriage certificate issued by competent legal authority proving marriage and other evidence. Further the Tribunal ignored all the evidence relating to the fact that the appellant lives alone implying she has separated. This clearly demonstrates that the appellant was not categorised in the correct social group and consequently the test of serious harm/persecution was erroneously applied.
In respect of ground 1, the difficulty for the applicant is that her case before the Tribunal failed at the hurdle of any factual finding that she would be at risk of suffering from “serious harm” if she were to return to Nepal. Accordingly, as the Minister submitted, there was no requirement for the Tribunal to consider whether the applicant was at risk of “systematic and discriminatory conduct” against her because it had concluded that she was not at risk of “serious harm” in Nepal at all.
In respect of ground 2, the particulars to that ground disclose, what is in substance, a challenge to a factual finding of the Tribunal by reason of which the Tribunal was not satisfied that the applicant would be seen as someone separated from her husband. It was reasonably open to the Tribunal, however, to reach the factual findings that it did. To the extent this second ground suggests that the Tribunal disregarded evidence and had not considered the applicant in the context of the social group of separated women in Nepal, it is clear that the Tribunal did, in fact, consider this matter. It dealt with that matter concluding that it was not satisfied of any risk of serious harm to the applicant. It then separately reached a factual conclusion that in any event it was not satisfied that the applicant would be seen as a separated woman in Nepal.
The applicant made oral submissions at the hearing in support of her application. In substance she referred to four matters. First, she did not feel she got justice from the Tribunal. Second, she did not understand how the Tribunal could have concluded that her marriage was not legal. Third, she said she could not go back to Nepal to be a burden on her family. Fourth, she referred to the fact that everybody knows what is happening in Nepal, this no doubt being a reference to the terrible earthquakes which Nepal has recently suffered and the current circumstances as a result.
In relation to the first of these matters the assertion of not getting justice is not particularised in any way and cannot be seen as establishing any form of legal error. In respect of the second of these matters it was essentially a matter for the Tribunal to reach its factual conclusions about the applicant’s status as a married and separated person or not. No legal error is disclosed in the Tribunal’s reasoning in this regard. In respect of the third matter the Tribunal considered the relationship between the applicant and her family, and concluded that it was not satisfied that the applicant would be excluded from some form of employment. In respect of the fourth matter the current circumstances in Nepal post-date the decision of the Tribunal and cannot be seen as relevant to this application for leave.
I am unable to discern any legal error in the Tribunal’s review of the application. The consequence is that the application for leave to appeal, and if it is treated as an appeal, the appeal, must be dismissed.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate:
Dated: 26 May 2015
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