SZTUS v Minister for Immigration
[2015] FCCA 477
•3 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTUS v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 477 |
| 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.424A, 425, 425A, 426, 426A, 441A, 441C |
| Randhawa v Minister for Immigration (1994) 124 ALR 265 SZTPN v Minister for Immigration (No. 1) [2014] FCA 1255 SZTUS v Minister for Immigration & Anor [2014] FCCA 2255 |
| Applicant: | SZTUS |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 158 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 3 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 3 March 2015 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | 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 $7,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 158 of 2014
| SZTUS |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application to review a decision of the Refugee Review Tribunal (Tribunal). The decision was made on 20 December 2013. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
Background facts relating to this matter are set out in an earlier interlocutory judgment by me in this matter[1]. In that judgment I dismissed the show cause application on account of the applicant’s non-appearance at the show cause hearing. However, the applicant applied for reinstatement. On 2 December 2014 I granted that application and vacated my earlier dismissal and costs orders. In making that decision, I took into account the interlocutory judgment of the Federal Court in SZTPN v Minister for Immigration (No. 1)[2]. As is pointed out in supplementary submissions made on behalf of the Minister, those proceedings were ultimately resolved in the Minister’s favour[3].
[1] See SZTUS v Minister for Immigration & Anor [2014] FCCA 2255
[2] [2014] FCA 1255
[3] See SZTPN v Minister for Immigration (No. 2) [2015] FCA 96
The applicant continues to rely upon her show cause application filed on 22 January 2014. The grounds in that application are:
1. I do not agree with the Tribunal Member's decision in my case because that I cannot relocate and live safely in Nepal where women' rights are not respected. The Tribunal Member gave material weight to its finding that I was able to stay in Kathmandu and my brother-in-law who raped me did not contact and harm me in Kathmandu. Its reasons did not suggest that this finding was a discrete and severable reason for its inference and ignored to address the question of whether I was able to obtain adequate protection from the authorities of Nepal given the fact I became a rape victim and there is significant and accepted history of failed state protection in Nepal. I argue that as a single woman without male protection, relocation to Kathmandu or other part of Nepal is not reasonable option at all for me in terms of my protection and I argue that there is jurisdictional error on the part of the Tribunal in respect of the failure to consider the issue of adequate state protection.
2. I argue that the Tribunal Member failed to address and deal with the claims I articulated that I fear significant harm or persecution based on my membership of a particular social group namely being a single woman without male protection.
3. The Tribunal Member failed to give me natural justice in my case and I am a victim of the Tribunal Member's purported decision so I am in need of justice.
For the purposes of today’s hearing I have before me as evidence the Court Book filed on 20 February 2014.
I received as a submission the applicant’s affidavit filed with her show cause application.
The applicant also tendered in court a further written submission, which I received. In that submission the applicant makes a number of propositions. The first is an asserted jurisdictional error by the Tribunal in making the finding that she could relocate to Kathmandu in the absence of any evidence. The Tribunal’s finding is not strictly a relocation finding. The Tribunal found at [33] of its reasons[4] that the applicant had been living in Kathmandu before travelling to Australia, and could return there. The applicant is concerned that the Tribunal did not properly consider the risk posed to her by her brother-in-law. However, the Tribunal specifically considered that risk at [34] of its reasons.
[4] CB 109
The applicant now asserts bias, but there is no evidence to support that contention.
The applicant also asserts a breach of s.424A of the Migration Act. However, it is apparent from the Tribunal’s decision that the material relied upon, apart from the applicant’s own evidence, was country information which did not require disclosure pursuant to that section.
The applicant also complains about the Tribunal’s adverse credibility findings. I see now arguable case of jurisdictional error in the Tribunal’s approach to credibility.
Finally, the applicant contends error by the Tribunal in dealing with the issue of state protection. She claims to be at risk as a single woman in Nepal. That was, in general terms, an issue of concern to Perram J in SZTPN. In particular, his Honour in that case was initially concerned at the Tribunal’s use of limited country information. Ultimately however, counsel for the Minister was able to allay his Honour’s concerns. In the present matter the country information relied upon by the Tribunal and set out in an attachment to its decision is more robust. The Tribunal’s consideration of it is, in my opinion, more comprehensive.
The Minister’s submissions otherwise deal adequately with the grounds in the application. I agree with those submissions.
Ground One
The first ground appears to take issue with the Tribunal’s finding that the applicant will be able to return to Kathmandu and also asserts that there was jurisdictional error on the part of the Tribunal in respect of a failure to consider the issue of adequate state protection.
The Tribunal expressly addressed state protection in relation to its finding that the applicant could live in Kathmandu and found that although state protection in Nepal has its weaknesses, it exists and there are police services available in Kathmandu. The Tribunal refers to country information, contained in annexure B of its decision which outlines steps the state has taken to improve protection of women, particularly in a domestic violence context.
The Tribunal has also considered the practical realities facing the applicant, in reaching its finding that the applicant could live in Kathmandu.[5]
[5] Randhawa v Minister for Immigration (1994) 124 ALR 265 and SZATV v Minister for Immigration (2007) 233 CLR 18
The findings of the Tribunal were open to it.
Ground Two
The second ground asserts a failure of the Tribunal to consider the applicant's claim to consider harm or persecution based on her membership of a particular social group, namely a single woman without male protection. This claim has been expressly dealt with by the Tribunal. There is a heading in the Tribunal decision that reads “Real chance of serious harm - community/male predators”, which introduces reasoning that addresses this claim.
Ground Three
The third ground asserts a failure to provide natural justice, but contains no particulars.
The Tribunal complied with its obligations under Division 4 of Part 7 of the Migration Act 1958 (Cth) (Migration Act).
Pursuant to s.425 of the Migration Act, the applicant was invited to attend a hearing before the Tribunal. That hearing invitation complied with all of the statutory and regulatory requirements.[6]
[6] Sections 425, 425A, 426, 426A, 441A, 441C of the Migration Act and regulation 4.35D of the Migration Regulations 1994 (Cth).
At the hearing the Tribunal traversed with the applicant issues dispositive of the review. Particularly, country information was discussed with the applicant at the hearing. No s.424A obligations arose.
I am not persuaded that the applicant has advanced an arguable case of jurisdictional error in the use of country information or for any other reason.
I will order that the application is 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 $7,000. The applicant’s submissions on costs were limited to one word, “whatever.” Bearing in mind that a costs order was made at the time that these proceedings were dismissed on account of the applicant’s earlier non-appearance, and that that was subsequently vacated, bearing in mind the number of hearings that have been required in this matter, and the fact that counsel was reasonably required for today’s hearing, I accept that costs of $7,000 have been reasonably and properly incurred on behalf of the Minister when assessed on a party and party basis.
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 $7,000.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 6 March 2015
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