SZTWL v Minister for Immigration

[2014] FCCA 2280

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTWL v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2280

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Nepal – applicant not believed – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.36

Attorney-General (NSW) v Quin (1990) 170 CLR 1

Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant: SZTWL

First Respondent: Minister for Immigration & Border Protection

Second Respondent: Refugee Review Tribunal

File Number: SYG 328 of 2014

Judgment of: Judge Driver

Hearing date: 3 October 2014

Delivered at: Sydney

Delivered on: 3 October 2014

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr M Wiese

Clayton Utz

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 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).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Sydney

SYG 328 of 2014

SZTWL

Applicant

And

Minister for Immigration & Border Protection

First Respondent

Refugee Review Tribunal

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (Tribunal).  The decision was made on 9 January 2014.  The Tribunal affirmed a decision of a delegate of the Minster not to grant the applicant a protection visa.

2. The applicant is from Nepal and had made claims of persecution involving physical harm.  The background facts relating to the applicant’s claims for protection and the decision of the Tribunal on them are set out in the Minister’s written submissions filed on 25 September 2014. 

3. The applicant is a citizen of Nepal[1] who arrived in Australia on 15 January 2009 as the holder of a student visa.[2]  On 25 March 2011, she was granted a further student visa valid until 30 October 2012.[3]

   [1] Court Book (CB) 2.

   [2] CB 43.

   [3] CB 43.

4. On 29 October 2012, the applicant lodged her application for a protection visa.[4]  By letter dated 5 December 2012 she was invited to attend an interview with the Delegate in connection with her protection visa application[5] but did not attend.[6]  On 18 December 2012, the Delegate refused to grant a protection visa to the applicant.[7]

   [4] CB 1-31.

   [5] CB 32-36.

   [6] CB 46.

   [7] CB 43-50.

5. On 8 January 2013, the applicant applied to the Tribunal for review of the Delegate's decision.[8]   On 19 November 2013, she attended a hearing before the Tribunal.[9]  On 9 January 2014, the Tribunal affirmed the Delegate's decision.[10]

   [8] CB 51-68.

   [9] CB 87.

   [10] CB 107-114.

Applicant’s claims

1. The applicant presented brief written claims in her application for a protection visa.[11]  She provided a further written statement to the Tribunal, together with an English translation.[12]  She presented further evidence at the Tribunal hearing.[13]

   [11] CB 7-9.

   [12] CB 90-97.

   [13] CB 111-112 [25]-[33].

2. The Applicant described a history of abuse by her father and a boyfriend in Nepal, including abuse that resulted in an unplanned pregnancy, rejection by her mother and a secret abortion.  The Applicant claimed that the police failed to assist her when she called for help after the rape.[14]

   [14] CB 90.

3. From September 2006 to December 2008, the Applicant lived and worked in Kathmandu. During this time she met and married a man, who belonged to a different caste. Both sets of parents-in-law refused to accept the union, and the couple were unable to register their marriage.[15]

   [15] CB 91.

4. The applicant claimed that she suffered “domestic violence” from her husband's family members.[16] She claimed that in Nepal she suffered physical and emotional pain.[17]  After coming to Australia, the applicant's husband had an affair with a woman from his own caste chosen by his parents, and left the applicant.  He threatened to kill the Applicant if he found her in Nepal.[18]

   [16] CB 91.

   [17] CB 8.

   [18] CB 91.

5. The applicant feared physical and emotional harm and financial hardship if she returned to Nepal.[19]  She feared sexual assault by “perpetrator males” and she feared that she would be killed by her husband or his family members.[20]  She feared that she would be treated as a social outcast and harmed by “conservative people” including her father and her husband's family members.[21]  She feared that she would be trafficked to India and forced into prostitution.[22]  She claimed that she would face social stigma in Nepal as a woman living alone and that there was no one to look after her in any part of Nepal because she had been “discarded” by her family.[23]  Nepalese police or authorities would not protect her because they are “corrupt and weak”.[24]

   [19] CB 8.

   [20] CB 91.

   [21] CB 91.

   [22] CB 91.

   [23] CB 91.

   [24] CB 92.

Tribunal’s findings and reasons

1. The Tribunal rejected the applicant's claims to protection after concluding that she was not credible in respect of key aspects of her claims.[25]  The Tribunal set out the matters which, collectively, led it to the conclusion that the Applicant's claims were not to be believed:

   a)the applicant provided minimal detail in her original application and did not provide any further statement to the Department, although a statement was foreshadowed in her application.  The Applicant provided a written statement to the Tribunal only at the commencement of the hearing.[26]  At the hearing, the applicant claimed that there were “many things to say” but that she could not remember them at the hearing.  However, in response to the Tribunal's invitation to make a further submission after the hearing, the applicant stated that she did not think there was any need to do this, and did not provide any further submission;[27]

   b)the applicant's claims were made at a high level of “generalisation, hyperbole and speculation”. They lacked relevant and specific detail that would assist her in substantiating her claims;[28]

   c)the applicant's oral evidence gave the impression of reciting a learned script rather than recounting actual lived experiences. The Tribunal's questioning elicited only abstract or high level responses.[29]

   [25] CB 112 [35].

   [26] CB 113 [37]-[38].

   [27] CB112 [33], 113 [42].

   [28] CB 113 [39]-[40].

   [29] CB 113 [41].

2. The Tribunal also made a specific finding that it did not accept that the applicant would be without family support upon returning to Nepal.  The applicant's claims in this respect were inconsistent with the documentary evidence indicating that she lived with her mother up to the time that she left Nepal for Australia.[30]

   [30] CB 114 [46].

3. Based on the above findings, the Tribunal rejected all of the key factual elements of the applicant's claims.[31]

   [31] CB 113-114 [44]-[47].

4. Having comprehensively rejected the applicant's claims, the Tribunal was not satisfied that she met the criteria for a protection visa in s.36(2) of the Migration Act 1958 (Cth) and affirmed the Delegate's decision.[32]

   [32] CB 114 [48]-[51].

The present application

1. These proceedings began with a show-cause application filed on 13 February 2014.  There are three purported grounds in that application:

   1. The Refugee Review Tribunal Member has overlooked my claims and alleged me that I am not a credible witness despite the fact that I told the truth.

   2. The Member failed to consider my claims carefully and ignored my fear of harm on return to Nepal given the fact that I am a woman and a victim.

   3. I seek justice because I am a victim of the Member’s decision.

2. The application is supported by a short affidavit which I received. I also have before me as evidence the court book filed on 31 March 2014.

3. The first ground in the application asserts that the Tribunal overlooked certain of the applicant’s claims.  No particulars are provided.  The applicant has not taken up the opportunity I afforded her in directions I made on 25 March this year for her to file an amended application and written submissions.

4. Secondly, the applicant asserts a failure by the Tribunal to consider her claims carefully.  Finally, the third ground is a general claim for justice.  These broad assertions were repeated by the applicant in her oral submissions.  She contests in particular the Tribunal’s adverse credibility finding.

5. Unfortunately for the applicant, her dissatisfaction with the Tribunal’s decision does not rise above a dispute over the merits of that decision.  Those merits are beyond the scope of these proceedings.

6. The Minister’s submissions traverse in general terms the application before the Court.  I agree with those submissions. 

7. To the extent that the stated grounds of the application allege potential grounds of judicial review, they allege that the Tribunal overlooked the applicant's claims or failed to consider them adequately.  There is no support in the evidence for these allegations.  From the passages of the Tribunal's decision record referred to above, it is evident that the Tribunal considered the applicant's evidence and her claimed future circumstances in Nepal if she returned there.  The Tribunal did not accept that there was any factual support for the various sources of harm that the applicant claimed to fear if she returned to Nepal.  It did not accept that the applicant was a “victim” as claimed and, although she may return as a single woman, did not accept that she would be without support.

8. The balance of the applicant's assertions in the three grounds of review, at their highest, seek merits review of the Tribunal's decision.  The Court has no jurisdiction to undertake a review of the merits of the applicant's claimed entitlement to a protection visa.[33] 

   [33] Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36.

9. The Tribunal's decision was inevitable from the view that it took of the applicant's credibility.  The Tribunal's conclusions in this respect were set out in its decision record and based upon its consideration of the applicant's claims and evidence.   It is indisputably within the jurisdiction of the Tribunal to make findings on credibility based on its consideration of a review applicant's claims and evidence and, if it makes adverse findings, to reject an applicant's claims on that basis.[34]

   [34] Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at [67].

10. It is plain that the Tribunal met its statutory obligations for the purposes of the review.  It is also plain that the adverse credibility conclusions reached by the Tribunal were open to it on the material before it. 

11. The applicant has failed to establish an arguable case of jurisdictional error by the Tribunal. Accordingly, I must dismiss the application and I will do so, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

12. In consequence of the dismissal of the application the Minister seeks an order for costs in accordance with the Court scale.  The applicant did not wish to be heard on costs.

13. 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 certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  8 October 2014