SZTUS v Minister for Immigration
[2014] FCCA 2255
•30 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTUS v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2255 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – dismissal of show cause application on account of the non appearance of the applicant. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| 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: | 30 September 2014 |
| Delivered at: | Sydney |
| Delivered on: | 30 September 2014 |
REPRESENTATION
No appearance by or on behalf of the Applicant
| Solicitors for the Respondents: | Ms C Hillary DLA Piper |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 13.03C(1)(c) 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 in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
The Court directs that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at her nominated address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).
| 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 filed on 22 January 2014 seeking judicial review of a decision of the Refugee Review Tribunal (Tribunal) made on 20 December 2013. The Tribunal affirmed a decision of the delegate of the Minister not to give the applicant a protection visa. The background facts relating to this matter are detailed in written submissions filed on behalf of the Minister on 22 September 2014
The applicant is a female citizen of Nepal born on 4 May 1985.[1] She arrived in Australia in October 2008.
[1] Court Book (CB) 1
The applicant applied for a Protection (Class XA) visa on 20 March 2014.[2] Her claims were set out in a statement accompanying the application.[3] The application was refused on 11 October 2012.[4]
[2] CB 1
[3] CB 26
[4] CB 39
The applicant applied to the Tribunal for review of the delegate's decision on 30 October 2012.[5]
[5] CB 52
The applicant gave oral evidence before the Tribunal on 14 November 2013. The RRT made its decisions on 20 December 2013.
The applicant's claims
The applicant claimed to be a “hardcore supporter” of the Nepali Students Congress. The applicant claimed that her husband was killed on 11 October 2006 by the Maoists and that after his death, she received threats from the Maoists.
The applicant also claimed that her brother-in-law raped her on 14 March 2008, when she refused to marry him. After this the applicant went to live with her sister in Kathmandu for six months before leaving for Australia. While she told the delegate that her brother-in-law did not contact her while she was in Kathmandu, she told the Tribunal that she received threatening phone calls from him.
The decision of the Tribunal
The Tribunal accepted a number of the applicant's claims,[6] including that she had been the victim of sexual assault. The Tribunal took into account the applicant's stress and anxiety as a result of the sexual assault,[7] but nevertheless affirmed the decision under review.
[6] [30]
[7] [28]
The Tribunal was not satisfied that the applicant had a genuine fear about returning to Nepal because of her delay in applying for protection.[8]
[8] [29]
The Tribunal did not accept a number of the applicant's claims due to inconsistencies in her evidence.[9] In particular the Tribunal did not accept that the applicant's brother-in-law contacted her after she moved to live with her sister in Kathmandu. The Tribunal found that this part of her evidence had been added to bolster her claims.[10]
[9] [31]
[10] [32]
The Tribunal found that Kathmandu could be considered her home area as she was residing there for the six months before she came to Australia.[11] Accordingly it found that the chance of harm from the applicant's brother-in-law was remote and speculative and does not amount to a “real chance”. Not only had the applicant lived in Kathmandu without being contacted by him for six months but the Tribunal also found that state protection was available in Nepal and police services are readily available in Kathmandu.[12]
[11] [33]
[12] [34]
In relation to the applicant's claim regarding Maosits, the Tribunal found that the political situation had changed in Nepal such that the applicant would not face serious harm from the Maoists if she returned to Nepal.[13]
[13] [37]
The Tribunal also assessed the applicant's claims against a particular social group, that particular social group being single women in Nepal. While the Tribunal accepted that, based on the country information, single women may experience some embarrassment and shame because of membership of this particular social group, it found that it would be to a lesser degree in Kathmandu than in regional areas. The Tribunal was not satisfied that any embarrassment or shame the applicant may experience would amount to serious harm.[14]
[14] [39]
The Tribunal also considered complementary protection[15] and was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal that there is a real risk that she will suffer significant harm.[16]
[15] [44]-[47]
[16] [48]
The present proceedings
The matter came before me for first court date directions on 6 March 2014. At that time the applicant attended in person with the assistance of a Nepalese interpreter. I gave the applicant the opportunity to file and serve an amended application and supporting evidence. She has not taken up that opportunity. I also directed that the matter be listed today for a show cause hearing. I am satisfied that the applicant, who consented to the orders, understood them.
The applicant has not appeared at today’s show cause hearing. The matter has been called twice and on each occasion there was no answer to the call. There is no explanation for the applicant’s non-attendance. I accept from the affidavit of Dalyna Khong made on 29 September 2014 that the applicant was warned by correspondence dated 22 September 2014, sent by courier, of the importance of her attendance at court today and the likely consequences of non attendance. Specific details were provided to her in that letter of the hearing fixture.
Before I came on the bench this afternoon the Minister’s solicitor attempted to contact the applicant on her nominated mobile telephone number. That attempt was unsuccessful as the line rang out.
In the circumstances I have decided that the appropriate course is to dismiss the application on account of the applicant’s non-appearance pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules) and I will so order.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.
I will direct that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at her nominated address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 2 October 2014
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