SZUMF v Minister for Immigration

[2016] FCCA 2528

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUMF v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2528

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to consider a claim made by the applicant.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Migration Act 1958, ss.36, 474

Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZUMF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1534 of 2014

Judgment of: Judge Cameron

Hearing date: 18 August 2016

Date of Last Submission: 18 August 2016

Delivered at: Sydney

Delivered on: 18 August 2016

REPRESENTATION

Solicitors for the Applicant: Mr T. Soeryoatmodjo of Weighbridge Lawyers

Solicitors for the Respondents: Mr K. Eskerie of Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,800.00. 

3. The Administrative Appeals Tribunal replace the Refugee Review Tribunal as second respondent in this proceeding.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1534 of 2014

SZUMF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Nepal who arrived in Australia on 13 July 2008 on a student dependant visa. On 8 November 2012 she lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that she feared persecution in Nepal because of her inter-caste marriage, her separation from her husband and her political opinion. On 20 December 2012 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. She was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

2. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Background facts

1. The applicant’s claims were made in her application, in a statement dated 25 October 2012, at an interview with the delegate on 11 December 2012, at a Tribunal hearing on 11 March 2014 and in post-hearing submissions from her representative dated 17 March 2014.  The applicant’s claims were summarised by the Minister in his written submissions as follows:

   6. … The applicant claimed that she married a man of a different, higher caste (on 29 June 2007).  As a result, she was rejected by both her family, and her husband’s family, and was beaten by her father.  In 2008, the applicant accompanied her husband to Australia, who had come here to study.  On 27 March 2012, the applicant and her husband returned to Nepal, and her husband’s parents were violent towards her, and threatened to kill her if she refused to leave their home and their son. Several months after having returned to Australia ... the applicant’s husband left her.

   7.The applicant claimed that she was unable to return to Nepal as she feared that she would be harmed by her husband’s parents, and her abusive father.  The applicant claimed that she would be a “victim of rape, sexual abuse and physical harm because I am a woman who has been expelled from the family”. 

   8.In her interview with the delegate, the applicant claimed that as a separated woman, she would be more disadvantaged financially and emotionally.  At the Tribunal hearing, the applicant’s representative submitted that if the applicant returned to Nepal as a single woman, as she would not have male protection in a patriarchal society and was not well-educated, she would find it difficult to find suitable employment, and would face discrimination and further that she might have faced sexual harassment in the workforce.

   9.In addition, the applicant claimed to fear harm from the Maoists, as she opposed them, and held views in favour of the Monarchy. Before the Tribunal, the applicant claimed that she had to stop studying at Grade 9 because the Maoists tried to recruit her into the army, and they pressured her parents to give them goods from their shop and monthly donations.

   (References omitted)

2. I adopt the Minister’s summary of the applicant’s claims.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”), or s.36(2)(aa) of the Act. In his written submissions the Minister set out the Tribunal’s findings and reasons for its decision in the following terms which I adopt:

   12.    The Tribunal found that the applicant had not been truthful about the reasons she feared returning to Nepal, and concluded that her claims were not credible.  Based on the applicant’s evidence, the Tribunal had serious concerns as to the genuineness of the applicant’s marriage, and concluded that the marriage, which was central to her claims, was “contrived for migration purposes” and that she “fabricated her claims to build a case for protection in order to achieve a migration outcome”.

   13.    The Tribunal found that it followed from that finding that the applicant’s claims relating to a fear of harm from her own family or her husband’s family were not truthful.  The Tribunal was not satisfied that the applicant was “now a ‘single divorced woman’” or that she would face social stigma, economic hardship, physical and mental torture, and would not be a victim of rape, sexual abuse and physical harm.

   14.    In regards [sic] to the applicant’s claim to fear harm from the Maoists, the Tribunal found that these claims were “vague and speculative”, and that the claim regarding the recruitment attempt by the Maoists was “an embellishment of her claims”.  The Tribunal was not satisfied that the applicant would be at risk of harm from the Maoists if she returned to Nepal.

   15. In conclusion, the Tribunal did not accept that the claimed events had occurred and considered that the applicant lacked credibility. Accordingly, the Tribunal determined that the applicant did not meet the refugee criterion in s.36(2)(a) of the Act, and for the same reasons the Tribunal determined the applicant did not satisfy s.36(2)(aa) of the Act.

   (References omitted)

Proceedings in this Court

1. In her amended application the applicant alleged:

   1.     The Tribunal committed jurisdictional error by failing to consider a claim or integer of the Claim made by the Applicant (put before the Tribunal by the applicant’s representative) that the Applicant had a well-founded fear of persecution from the “patriarch society” (at [23]) and/or failed to address relevant considerations or otherwise denied procedural fairness.

   Particulars

   (a) The Tribunal dealt with the Claim whether the Applicant is likely to suffer harm from the Applicants family and the Husband’s family and whether she would suffer at the hands of Maoists;

   (b)The claim that the Applicant would suffer harm at the hands of “patriarch society” was not considered as divorced single woman who had particular vulnerabilities.  The Tribunal did not engage with the claims/integer of “patriarch society”.

   (c)The Tribunal did not deal with whether “ostracisation” at the hands of “patriarch society” and whether the Australian experience (considered at [31]) translated to being able to survive in “patriarch society” and thereby failed to address a relevant consideration (at [31]-[32]).

   (d)The Tribunal misapprehended the claim and limited its consideration and thereby fell into jurisdictional error.

   (e) [Not pressed]

   2.     [Not pressed]

2. The applicant alleged in ground 1 of her application that the Tribunal erred because it had failed to consider an integer of her claims, namely, that given her personal circumstances associated with her terminated marriage she was at risk of harm at the hands of a patriarchal Nepalese society.  Paragraph 23 of the Tribunal’s reasons records that it was aware of the applicant’s claim to fear the consequences for her of Nepalese society being patriarchal in nature or quality.  However, it did not need to consider that claim because its factual foundation was not made out.  The basis of that part of the applicant’s claims was the allegation that she was estranged from her family and had lost their support and so would be alone and vulnerable if she returned to Nepal.  The Tribunal rejected those allegations at paras.30 and 31 of its reasons.  In those circumstances, the patriarchal society claim did not need to be addressed specifically.  Any such discussion would have been otiose in the circumstances.  Consequently, the fact that the Tribunal did not do so did not amount to a failure to take a relevant consideration into account.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated and consequently the application will be dismissed.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 29 September 2016