SZTPN v Minister for Immigration
[2014] FCCA 1590
•22 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTPN v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1590 |
| 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) |
| Applicant: | SZTPN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3006 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 22 July 2014 |
| Delivered at: | Sydney |
| Delivered on: | 22 July 2014 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms A Wong DLA Piper |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT LAUNCESTON |
SYG 3006 of 2013
| SZTPN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (Tribunal). The decision was made on 30 October 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is from Nepal and claimed a fear of harm from her husband. She had arrived in Australia initially on 29 March 2009. She subsequently sought a protection visa. The applicant has two daughters and is separated from her husband. She claims that he was abusive and that she fears him. The Minister’s delegate refused the protection visa, and the applicant sought review before the Tribunal.
The Tribunal was unable to make a favourable decision on the papers and invited the applicant to a hearing. The applicant attended and gave evidence and answered questions about her claims. The Tribunal’s reasons recount some doubt about the quality of the applicant’s evidence, in particular due to vagueness. She admitted coming to Australia using a false passport. She also used a false marriage certificate.
The Tribunal did not accept that the applicant has a well-founded fear of future harm at the hands of her husband with whom she has had no contact since 2009. The Tribunal discussed with the applicant at the hearing country information about risks facing single women in Nepal and about the possibility of relocation to Kathmandu. The Tribunal recognised that the applicant is from a rural area in Nepal and that if she returned there she might face a high level of social stigma and even some sexual harassment by reason of her single status. The Tribunal was satisfied that the applicant faced a real risk of persecution in rural Nepal by reason of her membership of the particular social group of Nepalese women who are separated or divorced.
The Tribunal nevertheless found that the applicant did not qualify for a protection visa because she could relocate to an urban area such as Kathmandu. Relevantly, the Tribunal’s reasoning is contained at [53][1]:
However I consider it would be reasonable for the applicant to relocate within Nepal to an urban area such as Kathmandu, and that if she were to do so the chance would be remote that she would be persecuted for the above Convention reason. As I discussed with her she has lived independently abroad for several years, has work experience and has a supportive friend with friends and relatives in Kathmandu, among whom are people who were willing to allow her to stay with them previously. Importantly, there is the evidence, also discussed with her, that divorced women (any by inference women who are separated from their husbands) are no long unusual in Kathmandu and that it is a city in which many live and work nowadays.
[1] Court Book (CB) 113
For the same reasons at [61][2] the Tribunal found that the applicant would not qualify for complementary protection.
[2] CB 114
These proceedings began with a show cause application filed on 3 December 2013. The applicant continues to rely upon that application. It contains three grounds:
1. I am not safe anywhere in Nepal so I can not be expected to relocate to Kathmandu and protect my life given the fact that I am a victim of the domestic violence and I am from a man-dominated society.
2. The Tribunal member failed to consider the availability of my country protection to me.
3. I require justice.
I have before me as evidence the applicant’s short affidavit filed in support of her application on 3 December 2013 and the court book filed on 6 January 2014.
The applicant made short oral submissions in support of her application. I did not require any submissions from the Minister.
As is noted in the Minister’s response filed on 13 December 2013 and as I explained to the applicant during oral argument, her application to this Court takes issue with the factual correctness of the Tribunal’s relocation finding. It otherwise asserts that the Tribunal failed to consider country protection in Nepal.
The Tribunal, however, found that the applicant could relocate having regard to both the safety that would be achieved by such relocation and the applicant’s personal characteristics. In the circumstances, it was unnecessary for the Tribunal to consider the availability of effective State protection. In other respects, as I explained to the applicant, her application amounts to an attack on the merits of the Tribunal’s decision which are beyond the scope of these proceedings.
The applicant has failed to demonstrate an arguable case of jurisdictional error affecting the Tribunal decision. I will therefore order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $2,400. The applicant did not wish to be heard on costs.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,400.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 24 July 2014
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