SZUXV v Minister for Immigration
[2015] FCCA 1484
•2 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUXV v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1484 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – interlocutory dismissal of show cause application – non appearance by the applicant. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.36 |
| Applicant: | SZUXV |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2288 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 2 June 2015 |
| Delivered at: | Sydney |
| Delivered on: | 2 June 2015 |
REPRESENTATION
No appearance by or on behalf of the Applicant
| Solicitors for the Respondents: | Mr L Gell of Clayton Utz |
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, fixed in the sum of $3,326.
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 2288 of 2014
| SZUXV |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a show cause application filed on 15 August 2014 seeking review of a decision of the Refugee Review Tribunal (Tribunal). The decision was made on 15 July 2014. 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 had made claims arising out of her fear of a relative. Background facts relating to the applicant’s claims and the decision of the Tribunal on them are set out in the Minister’s outline of legal submissions filed on 26 May 2015.
The applicant, a citizen of Nepal, applied for an Australian visa on 26 April 2006 and again on 10 July 2006. Each was refused. On 4 August 2008, the applicant applied for a Vocational Education Sector TU 572 visa, in the false name of Rita Karki, as a dependent of a "Prakash Gurung". That visa was granted and the applicant entered Australia as Rita Karki in about 20 November 2008. The visa was valid until 22 December 2010.[1]
[1] Court Book (CB) 101 [4].
On 22 July 2013, the applicant applied for a protection visa.[2] On 7 February 2014, the Minister’s delegate refused to grant a protection visa.[3]
[2] CB 1.
[3] CB 48.
On 4 March 2014, the applicant applied to the Tribunal for review of the delegate's decision.[4] The applicant attended a hearing before the Tribunal on 14 July 2014, at which she elaborated on her claims and gave evidence.
[4] CB 71.
Applicant's claims
The applicant claims to fear harm in Nepal by her brother-in-law, who has repeatedly raped and assaulted her. The applicant's factual claims can be reduced into the following account:
a)she was married against her will in 1993. She and her husband had two children before he effectively abandoned her and moved to Korea in 2003. [5] She has not spoken to her husband since that time but she continued to live with her parent in-laws;[6]
b)in March 2006, and repeatedly after that time, her brother-in-law sexually assaulted and beat her.[7] The applicant states that her brother-in-law was a police officer at the Criminal Investigation Department and that he threatened to harm her if she reported him;[8]
c)in 2008, the applicant fraudulently obtained a passport under the alias "Rita Karki" and applied for an Australian student dependent visa using that name.[9] The applicant was granted a visa which was valid until 22 December 2010.[10] The applicant obtained the passport and visa with the assistance of a "broker" whose services were paid for by her sister;[11] and
d)a few weeks before the applicant departed Nepal, she took her children to live with her sister's family in Kathmandu. However, within a month of leaving the country, her parents-in-law had come to take the applicant's children home, where they have remained since that time.[12]
[5] CB 101 [5].
[6] CB 101 [6].
[7] CB 101 [6], 102 [17].
[8] CB 101 [6].
[9] CB 101 [8].
[10] CB 101 [4].
[11] CB 101 [8].
[12] CB 102 [15].
Tribunal findings
The Tribunal was satisfied that the applicant was a Nepalese citizen.[13] The Tribunal also accepted that the applicant's true identity was as claimed and that the passport issued in the name of "Rita Karki" was obtained fraudulently.
[13] CB 105 [41].
In her written submissions to the Department, the applicant described her fear of harm in broader terms, namely, she feared harm from "other criminals". That claim was not revisited at the Tribunal hearing and the Tribunal did not consider it.[14]
[14] CB 105 [43].
Accordingly, the applicant's remaining claim was that she was threatened, beaten and sexually assaulted by her brother-in-law.[15] The Tribunal was not satisfied that the applicant was a reliable witness and rejected that claim.[16] This finding was based on the following matters which went to the applicant's credibility:
a)the applicant did not apply for a protection visa until 2013, having already been in Australia for over four years;[17]
b)the applicant's claim that her husband had not contacted her or her family since 2003 seemed highly implausible in light of her statement that there were no problems in the relationship before he moved to Korea. The Tribunal considered that it was highly implausible that the family had no contact with the applicant's husband. It considered that this made her brother-in-law's willingness to risk assaulting the applicant less plausible if only because of his brother's reaction;[18]
c)the applicant gave evidence that she continued to live with her parent in-laws after the assault, despite having access to secure accommodation at her sister's house in Kathmandu. The Tribunal considered that if the applicant's claims with respect to her brother-in-law were true, she would have gone to live with her sister. The applicant responded that her brother-in-law had threatened to kill her children if she left the family home. The Tribunal was not persuaded by that claim because it was inconsistent with the four attempts she had made to leave Nepal without her children. It found that the applicant's brother-in-law had never threatened her;[19] and
d)the applicant had willingly committed fraud to obtain an Australian visa. The Tribunal found that the applicant could not adequately explain why she had committed fraud, why she continued to work under the assumed name when she had her own passport and the delay in applying for protection do not display conduct consistent with fear of harm and considered that it cast doubt on the reliability of her claims more generally.[20]
[15] CB 105 [42].
[16] CB 106 [44].
[17] CB 106 [45].
[18] CB 106 [46].
[19] CB 106 [47]-[48].
[20] CB 106 [49].
Having discounted the factual matters upon which the applicant's claim relied, the Tribunal found that the applicant was not a person in respect of whom Australia owed protection obligations under s.36(a) or s.36(2)(aa) of the Migration Act 1958 (Cth).[21]
[21] CB 107 [56]-[57].
The show cause application has three purported grounds:
1. I am not happy with the Refugee Review Tribunal’s decision
2. I argue that I have received no fairness and justice
3. I believe the Refugee Review Tribunal member failed to determine my application according to law.
I provided the applicant the opportunity to file and serve an amended application and additional evidence and submissions, but she has not taken up that opportunity. There was no contact between the applicant and the Court between the initial directions hearing and today’s show cause hearing. At the commencement of the hearing this morning I was provided by the Minister’s solicitor with a letter sent by facsimile to his office overnight, apparently from the applicant.[22] The letter is dated 1 May 2015 and addressed to the Registry of the Court. It says:
[22] My associate received a copy of the same document from the registry during this morning’s hearing.
Dear Sir/Madam,
I sadly advise that I am unable to attend the hearing scheduled at 10.15 am on 02 June 2015 because I am mourning over my god mother’s death. I have been informed that my god mother passed away yesterday from the injury of earthquake. I am not allowed to attend any public and social event within 13 days from the date of her death according to my family tradition and cultural reason. Therefore I request my hearing be postponed until the end of June 2015. Thank you for your understanding and your assistance in my request.
The letter is purportedly signed by the applicant and again dated under her signature 1 May 2015.
I attempted to contact the applicant on her nominated telephone number, with the assistance of the Nepalese interpreter booked for today’s hearing, but that attempt was unsuccessful. The call was not answered.
On its face the letter purports to state that the applicant’s godmother was injured in the Nepalese earthquake on 25 April 2015 and has succumbed to injuries sustained in the earthquake. If the letter was indeed written on 1 May 2015 the 13 day mourning period referred to in the letter would have long since been completed and there would have been no impediment, based on that mourning period, to the applicant’s attendance at court today. The Minister’s solicitor speculated that the applicant may have made a mistake and may have intended to date the letter 1 June 2015. If that is so, it is curious that the mistake is made twice at the top and the bottom of the letter. The first Nepalese earthquake was prior to 1 May 2015 and it may have been that the applicant’s godmother’s death was not very recent.
Without the ability to discuss these questions with the applicant I am unwilling to accept the letter as justification for an adjournment of today’s hearing. I have decided that the circumstances warrant the dismissal of the application on account of the applicant’s non-attendance today, and I will so order. I should add that the matter has been called twice and on each occasion there was no answer to the call.
I will order that the application dismissed, pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).
On account of the dismissal of the application the Minister seeks an order for costs in accordance with the Court scale as applied when the show cause application was filed. 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 $3,326.
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.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 4 June 2015
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