SZVIP v Minister for Immigration

[2018] FCCA 1393

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVIP v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1393

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for judicial review of decision of Administrative Appeals Tribunal to affirm decision of a delegate of the Minister for Immigration and Border Protection not to grant the Applicant a protection visa – allegation that Administrative Appeals Tribunal merely accepted factual findings of the Delegate and did not truly review the Delegate’s decision under s.414 of the Migration Act 1958 (Cth) and other alleged failings – no jurisdictional error established – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.414, 424AA

Cases cited:

Axon v Axon (1937) 59 CLR 395
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14

MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154

SZLYT v Minister for Immigration and Citizenship [2009] FCA 76
SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574
Toll (FGCT) Pty Limited v Alphapharm Pty Limited (2004) 219 CLR 165 WZAVX v Minister for Immigration and Border Protection [2016] FCA 411

Applicant: SZVIP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2948 of 2014

Judgment of: Judge Dowdy

Hearing date: 21 June 2017

Delivered at: Sydney

Delivered on: 1 June 2018

REPRESENTATION

Counsel for the Applicant: Mr J. R. Young of Counsel

Solicitors for the Applicant: Shamser Thapa & Associates

Counsel for the Respondents: Mr M. J. Smith of Counsel

Solicitors for the Respondents: DLA Piper

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 23 October 2014 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2948 of 2014

SZVIP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and Background

1. The Applicant in this proceeding is a female citizen of Nepal aged 35 years, having been born on 15 March 1983.

2. By Application filed in this Court on 23 October 2014 she seeks to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (at the time of decision the Refugee Review Tribunal) (Tribunal), dated 30 September 2014 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 14 November 2013 refusing to grant to her a Protection (Class XA) visa (Protection visa). 

3. The Applicant arrived in Australia on 6 June 2009 as a dependant on a Subclass TU 572 visa (Student visa) which had been issued to her husband Mr Kapil Rai (Mr Rai) and which ceased on 3 August 2011. The Applicant then held a Bridging visa A from 8 August 2011 to 18 January 2013, and then became an unlawful non-citizen until she was issued a Bridging Visa C in association with the lodging of the Protection visa application the subject of this proceeding on 7 June 2013.

4. She had married Mr Rai in Nepal on 11 October 2008.

Claims for Protection

1. The Applicant’s claims to protection related predominately to an alleged failed inter-caste marriage. In the letter from her present solicitors and migration agents dated 7 June 2013, which was forwarded at the time the Protection visa application was lodged on that date, it was claimed that the Applicant feared for her safety from the family of Mr Rai. The Applicant and Mr Rai had come from a different ethnic background and her caste was considered as very low in comparison to that of his. The Applicant had been living in constant fear from her parents-in-law before coming to Australia and if she returned to Nepal she could face torture as well as cruel or inhuman treatment or punishment from the family and friends of Mr Rai. The Applicant had been looking for Mr Rai in Australia but could not find him and she was left stranded and alone.

2. In answer to Parts 42 to 48 of her Protection visa application the Applicant claimed that she and Mr Rai had left Nepal because they wanted to get away from Mr Rai’s family and he wanted to study in Australia. She claimed to fear that if she returned to Nepal she would be harmed by Mr Rai’s family and indeed from the “whole society” of Nepal. In a Statement by the Applicant forming part of her Protection visa application the Applicant claimed: 

   a)she was born to a peasant family in Nepal and her mother died when she was two years old. She was raised by her grandmother, who is now also deceased;

   b)she met Mr Rai who was an educated male from the city and there was a vast difference between the status of his family and hers;

   c)after a few years they talked about marriage and ultimately married without letting anyone know about it. Later Mr Rai’s family and the Applicant’s own family came to know about their marriage and they were criticized by both families because it was an inter-caste marriage;

   d)Mr Rai’s parents tried many things to separate the Applicant and Mr Rai. Mr Rai’s parents started to talk about sending him overseas to separate him from the Applicant;

   e)on 7 July 2009 Mr Rai and the Applicant came to Sydney and lived together for almost eight or nine months. However, Mr Rai then left the Applicant and went to Victoria. He would not receive her telephone calls and when they did speak on the phone he asked her not to call him anymore. The Applicant visited Victoria and went to where she thought he lived but found that he had moved to a different place; and

   f)she claimed that if she went back to Nepal her body would not be safe and because Mr Rai had left her she would not be accepted by her own family and Mr Rai’s mother would not tolerate her nor would his family accept her. Further, Nepalese society, including relatives and neighbours, are going to look at her in a bad way and call her different derogative names.

Relevant Criteria and Law Applicable to Protection Visa Applications

1. A convenient summary of the grounds and criteria for the grant of a Protection visa can be found in the judgment of Wigney J in SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [5]–[7] as follows:

   [5]The criteria for the grant of a protection visa are well known. At the time the appellant applied for a protection visa, s 36(2)(a) of the Migration Act 1958(Cth) provided that a criterion for a protection visa was that the appellant was a non-citizen in Australia in respect of whom the Minister was satisfied Australia had protection obligations under the Refugees Convention. In simple terms, Australia has protection obligations under the Refugees Convention in respect of a person who is outside their country of origin and who is unable or unwilling to avail themselves of the protection of that country, or to return there, on account of them having a well-founded fear of persecution based on reasons of race, religion, nationality, membership of a particular social group, or political opinion.

   [6]Section 36(2)(aa) of the Act provided an alternative criterion known generally as the complementary protection criterion. A person met the complementary protection criterion if the Minister was satisfied that Australia had protection obligations because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there was a real risk that the non-citizen would suffer significant harm.

   [7]The remaining subsections of s 36 and subdivision AL of the Act contained additional provisions about protection visas, including provisions that defined or explained various expressions used in s 36(2)(a) and (aa), such as “significant harm” and “persecution”.

Decision of Delegate

1. The Applicant attended an interview with the Delegate on 28 October 2013. At that interview the Applicant told the Delegate that she did not know the whereabouts of Mr Rai and that if she returned to Nepal she would be harmed by Mr Rai’s parents because she is from a lower caste and married their son and they will accuse her of harming their son because she does not know of his whereabouts. She told the Delegate that prior to her arrival in Australia she had suffered domestic violence from Mr Rai’s parents. The Applicant also told the Delegate that she and Mr Rai had separated in Australia in 2011.

2. I further note, because it is relevant to the Grounds relied upon by the Applicant in this Court, that the Delegate in his Decision Record recorded the following:

   I asked the applicant to explain how her in-laws would on the one hand oppose her marriage to their son and subject her to domestic violence as a result and on the other hand sponsor their visa to Australia. The applicant stated that her in-laws did not know that she would be accompanying her estranged spouse to Australia.

   …

   I further pointed out to the applicant that I find it highly improbable that her in-laws would sponsor her visa to accompany their son to Australia considering her alleged claim that they were opposed her married to their son and had subjected her to domestic violence.

3. In the result the Delegate was not satisfied that Australia had protection obligations to the Applicant, either under the Refugees Convention criterion or the complementary protection criterion, and refused to grant a Protection visa to the Applicant. 

Decision of Tribunal

1. The Applicant applied to the Tribunal on 5 December 2013 for merits review of the Delegate’s decision.

2. On 25 February 2014 the Applicant appeared before the Tribunal to give evidence and present arguments with the assistance of an interpreter in the Nepali and English languages, and was represented by her registered migration agent.

3. By letter dated 21 February 2014 the Applicant’s registered migration agent had forwarded a copy of the Decision Record of the Delegate to the Tribunal and at [47] of its Decision Record the Tribunal noted that it had listened to the recording of the interview between the Applicant and the Delegate which had taken place on 28 October 2013.

4. From [4] – [22] of its Decision Record the Tribunal set out the Applicant’s claims as made prior to the hearing before the Tribunal.

5. At [5] of its Decision Record the Tribunal recorded that the Applicant had claimed in her Protection visa application that she had lived in Nawalparasi in Nepal until March 2007 and that from March 2008 to March 2009 she had lived in Kathmandu.

6. At [6] of its Decision Record the Tribunal recorded that the Applicant had told the Delegate at the interview that she had worked in Kuwait from 2006 to August 2008. When she returned to Nepal she stayed with her father and stepmother for about two months when she then married Mr Rai: see [32] – [33] of the Decision Record.

7. With reference to the Applicant’s interview with the Delegate the Tribunal at [14] – [15] recorded as follows:

   [14]His parents discussed with her husband sending him overseas “separating from me”, an offer which her husband accepted. However he then asked the applicant to register the marriage and they did this on 7 December 2008. After that he prepared the applicant’s documents for the visa application and the visa was granted.

   [15]The applicant said at interview that her parents in law paid for her and her husband to come to Australia, with the plan that he would leave her here. However she later said they planned for her to be left behind in Nepal. The delegate told her of evidence the parents had sponsored both of them to come to Australia. Her husband had provided documents showing this to the Department. Her in-laws had provided these documents, and had taken out a loan for this purpose.

8. Then from [23] – [64] of its Decision Record the Tribunal recorded the evidence and claims given and made by the Applicant at the Tribunal hearing. At [44] the Tribunal recorded as follows:

   [44]Under the provision of s424AA of the Migration Act I invited her to comment on or respond to evidence, provided to the Department by Mr Rai, that his parents had sponsored both the applicant and her husband to come to Australia. These documents were from her parents-in-law, and showed they had taken out a loan for this purpose. I told her I could infer that his parents did approve of her and did not want to harm her. I agreed that the applicant could provide a written response to this by 12 March 2014.

   In other words, the Tribunal was here putting the Applicant on notice that documentation in relation to her parents-in-law and their financial support to come to Australia might lead the Tribunal to find against her claim that her parents-in-law opposed her marriage in Nepal and infer, to the contrary, that they supported it and approved of her.

9. At [62] the Tribunal recorded that it had subsequently received a Written Submission dated 12 March 2014 from the Applicant’s registered migration agent and a Statutory Declaration dated 11 March 2014 of the Applicant in response to the invitation under s.424AA of the Migration Act 1958 (Cth) (the Act). It is clear from their terms that both the Applicant and her registered migration agent had access to the audio recording of the interview between the Applicant and the Delegate of 28 October 2013 in formulating these responses to the Tribunal’s invitation under s.424AA of the Act.

10. From [65] – [94] of its Decision Record the Tribunal recorded its consideration of the Applicant’s claims. The Tribunal was satisfied that the Applicant had married Mr Rai before leaving Nepal and that it was an inter-caste marriage because of the different caste-ranking between his family and the Applicant’s family. However, the Tribunal was not satisfied that the Applicant’s marriage to Mr Rai had led to her being threatened or harmed by his parents or siblings before she left Nepal. It was satisfied that Mr Rai was still alive and would still be in contact with his family in Nepal, and therefore his family would not hold the Applicant responsible for any disappearance of Mr Rai. The Tribunal did not accept that Mr Rai’s family members intended to harm the Applicant at all.

11. The Tribunal also was not satisfied that the Applicant’s father and stepmother would seriously harm the Applicant if she returned to Nepal or that the Nepalese community generally or neighbours of the Applicant would persecute the Applicant if she returned to Kathmandu where she had lived for a year before coming to Australia.

12. Accordingly, the Tribunal was not satisfied that Australia owed protection obligations to the Applicant under either the Refugees Convention criterion or the complementary protection criterion and it affirmed the decision of the Delegate not to grant a Protection visa to the Applicant.

Grounds of Attack on Tribunal Decision in this Court

1. The Grounds in the Application were as follows, with Ground 1 not being pressed or argued by Mr Young of Counsel, who appeared for the Applicant. 

   1. The Second Respondent made jurisdictional error at the Tribunal hearing and at [44] of its reasons by failing to comply with the requirements of sections 424A and 424AA of the Migration Act 1958 in relation to evidence allegedly provided to the Department by Mr. Rai.

   2.The Second Respondent made jurisdictional error at [69] by failing to review the decision of the delegate but adopting it and further finding that the parents-in-law gave the undertaking to provide financial support "knowingly".

   3.The Second Respondent made jurisdictional error at [73] by treating 2 reports of country information as prescribing a code variation from where [sic] meant that evidence should not be accepted.

   4.The Second Respondent made jurisdictional error by treating claims that the applicant's in-laws held her responsible for the disappearance of her husband  as answered  by finding that the husband was still alive.

   5.The Second Respondent made jurisdictional error  by  failing  to  consider  cumulatively the likely or possible attitude of  the applicant's  own family  or in-laws  for  marrying  in an inter-caste marriage and working in Kuwait for two years.

   6.The Second Respondent failed to comply with its obligations in respect of s.425 of the Migration Act 1958 in respect of where the Applicant would live if she was returned to Nepal.

Consideration

Ground 2

1. This Ground in substance asserts that at [69] of its Decision Record the Tribunal committed jurisdictional error by merely accepting a factual finding of the Delegate and failed or constructively failed to independently review and make its own judgment in accordance with the requirement of s.414(1) of the Act that the Tribunal “must review” the decision of the Delegate.

2. In my view the Applicant has failed to establish that the Tribunal failed to independently review the Delegate’s decision and come to its own judgment on the evidence before it, either with respect to [69] of its Decision Record or otherwise.

3. In [2] of its Decision Record the Tribunal noted that the Applicant had applied to the Tribunal for review of the Delegate’s decision. The Tribunal hearing extended over a period of two hours and forty-nine minutes. Paragraphs [23] to [64] of its Decision Record indicates a lengthy questioning of the Applicant concerning her claims which would seem to be consonant with a full examination of those claims, based not only on an examination of the Decision Record of the Delegate, but also the Tribunal’s listening to the audio recording of the Applicant’s interview with the Delegate on 28 October 2013.

4. Further, it is not the case, as asserted by Ground 2, that in [69] of its Decision Record the Tribunal adopted any view of the Delegate, let alone a view of the Delegate that the Applicant’s parents-in-law had “knowingly” signed a document undertaking to provide financial support to the Applicant and her husband in Australia. Rather, at [68] – [75] of its Decision Record the Tribunal was considering the Applicant’s claim that her parents-in-law had been opposed to her marriage in Nepal. The Tribunal had listened to the Applicant’s interview with the Delegate where this issue had been raised and in connection with that issue had, under s.424AA of the Act, invited the Applicant to comment on certain evidence which had been provided to the Department of the Minister: see [18] above. There is no attack on the Tribunal’s actions in this regard since the withdrawal of Ground 1.

5. Then after the Tribunal hearing the Applicant, in her statutory declaration dated 11 March 2014, responded to the s.424AA invitation as follows:

   a)her husband had arranged his parents’ signatures. She confirmed that she had told the Delegate that “… as my husband was smart and talented, he arranged the support papers without making them [i.e. his parents] known that I was included in the application”;

   b)her husband did not inform his parents that she had been included in the application (i.e. presumably the Student visa application). The Applicant  said that she was not sure about the further details as to how her husband arranged his parents’ signatures “in paper for financial support”; and

   c)her husband’s parents would not have agreed to provide financial support had they known that the Applicant was included in the application (i.e. for the Student visa application).

6. Accordingly, for the purposes of the Tribunal it was common ground that there was a document which appeared to bear the signatures of the Applicant’s parents-in-law which evinced their financial support for the Applicant and her husband to come to Australia on the Student visa. However, it was the Applicant’s claim that it was her husband “who had arranged their signature” without disclosing to his parents that the Applicant was coming to Australia with him as a dependant on the Student visa. There was no suggestion by the Applicant that the signatures of her parents-in-law had been forged.

1. Accordingly, in considering the Applicant’s claim that her parents-in-law were opposed to her marriage to their son in Nepal the Tribunal had before it:

   a)the audio of the interview between the Applicant and the Delegate which included the evidence at interview recorded at [14] – [15] of the Decision Record of the Tribunal: see [17] above;

   b)the Applicant’s evidence at the Tribunal hearing; and

   c)the migration agent’s written submissions dated 12 March 2014 and the Applicant’s statutory declaration dated 11 March 2014.

   In its Decision Record the Tribunal dealt with this evidence at [68] – [71] and [80] as follows:

   d)it concluded in [68] that her parents-in-law were supportive of the marriage to their son and at [80] that they did not disapprove of the marriage for the reasons stated in [69] – [75];

   e)at [69] the Tribunal simply postulated that if the parents-in-law had “knowingly” signed a document undertaking to provide financial support to the Applicant and her husband in Australia, this would cast very serious doubt on the Applicant’s claim that the parents-in-law were hostile to the marriage. As I have already noted, it was not in dispute that there was a document signed by the parents-in-law indicating financial support. The issue was whether the parents-in-law knew when they signed the document that their financial support would advantage the Applicant. However, the Tribunal made no finding at all in [69] in this regard;

   f)at [70] the Tribunal recorded the Applicant’s claim and answer to the signatures to the effect that her husband had added her name to the documentation which the parents-in-law had signed without their knowledge; and

   g)then at [71] the Tribunal implicitly rejected the Applicant’s claim that her husband had somehow, without their knowledge, arranged for the signatures of her parents-in-law on documentation evidencing their financial support for herself and her husband and she to come to Australia, but reasoned that it was prepared to make the “obvious inference” that the signatures of the parents-in-law on the documentation indicated a willingness to support the Applicant and her husband and were therefore supportive of the marriage. In his Written Submissions Mr Young submitted that at [71] the Tribunal did not conduct any review process of its own at all, but rather proceeded to determine the matter by discerning an inference from the factual findings of the Delegate and adopted the factual finding of the Delegate, and so did not in truth review the Delegate’s decision. I do not accept that submission. It seems to me clear that the Tribunal was making its own finding on the evidence, including the additional evidence which had been given to the Tribunal by the Applicant pursuant to the s.424AA invitation. The inference made by the Tribunal does not lack an intelligible justification. In most areas of the law relating to legal relations the signature of a person(s) is taken as a representation that the person who signed has read and approved the contents of the document: see in a contractual context Toll (FGCT) Pty Limited v Alphapharm Pty Limited (2004) 219 CLR 165 at 180 – 181 [42] – [46] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ.

2. I do not consider that it was necessary for the Tribunal to express a finding that it considered the Applicant’s explanation concerning the signature of her parents-in-law to be false or untrue or that she was lying. This was not a case where there was a direct conflict of evidence and there was no real possibility of honest mistake: see CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [51] per McKerracher, Griffiths and Rangiah JJ. Here, the Applicant had sought to explain her parents-in-law’s signatures as resulting from the activities of her husband but she gave no actual evidence about how and in what way his parents’ signatures had been obtained. Indeed she had expressly said in [3] of her Statutory Declaration of 11 March 2014: “I am not sure about the further details that how he arranged their signature in paper for financial support.”

3. Accordingly, in my view Ground 2 fails to establish jurisdictional error. There is nothing that has a tendency to indicate that the Tribunal failed to comply with s.414 of the Act.

Ground 3

1. Mr Young submitted that the Tribunal’s reasoning at [73] – [74] of its Decision Record failed to provide any rational basis for not accepting the Applicant’s claims that her parents-in-law did not approve of her marriage to their son.

2. In my view Ground 3 also fails to establish jurisdictional error. It is clear law that the choice and selection of country information and the weight given to such information is a factual matter for the Tribunal and is not an issue for review in this Court: see SZLYT v Minister for Immigration and Citizenship [2009] FCA 76 at [20] per Collier J and WZAVX v Minister for Immigration and Border Protection [2016] FCA 411 at [32] per Siopis J.

3. To similar effect in MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154 at 159 [19] the Full Court of the Federal Court comprised of Tracey, Murphy and Mortimer JJ approved the statement of law of the primary Judge below as follows:

   [19]It also noted (at [21]) it was a matter for the Tribunal what country information it obtained and what weight it gave that country information, referring to the reasons of the Full Court of this Court in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11].

4. Further, [73] – [74] of the Decision Record must also be regarded cumulatively with [72], which referred to what appears to be a substantial body of country information identified at footnote 6, to the effect that violence and / or social ostracism in Nepal was directed almost exclusively to inter-caste marriage involving a dalit bride or groom, which did not apply to the Applicant or her husband. It was open to the Tribunal to take into account the Applicant’s evidence that her husband was “an educated male from the city” and to consider that evidence in the context of country information relevant to that evidence. In my view the Tribunal’s reasoning at [72] – [74] does not exhibit “illogicality” or “irrationality” or “lack any intelligible justification” such as would constitute jurisdictional error.

Ground 4

1. This Ground asserts that the Tribunal committed jurisdictional error by its finding at [79] of its Decision Record that Mr Rai was still alive and would have maintained contact with his family in Nepal and therefore his parents would not hold the Applicant responsible for his disappearance in Australia. This finding responded to the claim of the Applicant recorded at [18] and [47] of the Decision Record that her parents-in-law would kill her because their son had disappeared.

2. In my view the Tribunal did not commit jurisdictional error by coming to the view that it was satisfied that Mr Rai was still alive.

3. First, at common law there is a presumption of fact of the continuance of human life. The presumption was described by Dixon J in Axon v Axon (1937) 59 CLR 395 at 404 – 405 in the following terms:

   When it is proved that a human being exists at a specified time the proof will support the inference that he was alive at a later time to which,  having regard to the circumstances, it is reasonably likely that in the ordinary course of affairs he would survive. It is not a rigid presumption of law. The greater the length of time the weaker the support for the inference. If it appears that there were circumstances of danger to the life in question, such as illness, enlistment for active service or participation in a perilous enterprise, the presumption will be overturned, at all events when reasonable inquiries have been made into the man's fate or whereabouts and without result. The presumption of life is but a deduction from probabilities and must always depend on the accompanying facts……………….. As time increases, the inference of survivorship may become inadmissible, and after a period arbitrarily fixed at seven years, if certain conditions are fulfilled, a presumption of law arises under which a court must treat the life as having ended before the proceedings in which the question arises.

4. At [46] of its Decision Record the Tribunal recorded that the Applicant had given evidence that she had last spoken to Mr Rai in June 2011. Accordingly, a period of only three years and four months had elapsed between June 2011 and the date of the Tribunal decision and the presumption of death did not therefore arise. Further, at [53] of its Decision Record the Tribunal recorded the Applicant as saying that she thought Mr Rai was still alive. There was no other evidence indicating that Mr Rai had died.

5. Further, there was no jurisdictional error attached to the Tribunal not being satisfied that Mr Rai had severed contact with his parents. As recorded at [53] of its Decision Record, the Applicant herself could not give a reason why the Applicant would not be in touch with his family. The Applicant had not suggested that there had been any actual breakdown in relations between Mr Rai and his family and the only source of disagreement between them suggested by the Applicant was the marriage between Mr Rai and herself. Further, it was legally reasonable in this connection for the Tribunal at [79] to infer that if Mr Rai had ceased to contact his family back in Nepal they would have reported him as missing to the Australian authorities and there was no evidence that they had done so. In my view, there is nothing legally unreasonable, illogical or irrational in the Tribunal’s findings in relation to [79] and [80] of the Decision Record of the Tribunal and Ground 4 fails to establish jurisdictional error.

Ground 5

1. At the hearing and in his Written Submissions Mr Young confined this Ground to suggesting that the Tribunal failed to deal with the attitude of the Applicant’s own family to her marrying in an inter-caste marriage and working in Kuwait for two years.

2. At [6] of its Decision Record the Tribunal recorded that the Applicant had told the Delegate that she had worked in Kuwait from 2006 to August 2008, when she had returned to Nepal. At [30] of its Decision Record the Tribunal recorded that the Applicant had said that she had known Mr Rai before she went to Kuwait but their romantic relationship started after she had returned to Nepal. At [32] the Tribunal recorded that the Applicant had said that after her return from Kuwait her father and stepmother did not accept her and that the stepmother had disapproved of the Applicant going to Kuwait, whereby the Applicant’s relationship with her father and stepmother had suffered.

3. From [84] – [87] of its Decision Record the Tribunal considered the present attitude of the Applicant’s father and stepmother towards her. At [84] the Tribunal accepted as plausible the Applicant’s claim that her father and stepmother were very unhappy about her marriage to Mr Rai, given the evidence of conservative attitudes towards inter-caste marriages in rural areas of Nepal. The Tribunal also in that paragraph accepted as plausible that the stepmother may have considered it improper and perhaps scandalous for the Applicant as a young woman to go and work in Kuwait for two years. Nevertheless, at [85] the Tribunal reasoned that the Applicant had not had any contact with her father or stepmother for several years and that they had never threatened to harm her either when she was living with them after telling them of her marriage to Mr Rai or during the year she was living with him in Kathmandu.

4. In my view this Ground fails to establish jurisdictional error. The Tribunal was clearly aware of and meaningfully considered the Applicant’s claims that her father and stepmother disapproved of her marriage to Mr Rai and at least her stepmother did not approve of her having worked in Kuwait. The Tribunal considered both claims to be plausible but at [85] – [87] of its Decision Record found, for the reasons there expressed, that there was no real chance or real risk that she would be persecuted by or suffer significant harm from her father or stepmother if she returned to Nepal. The Tribunal made no jurisdictional error in considering and dealing with these claims in this way.

Ground 6

1. This Ground asserts that the finding of the Tribunal at [89] of its Decision Record of satisfaction that the Applicant would live in Kathmandu, the capital of Nepal, if she returned to Nepal, was affected by jurisdictional error.

2. The Applicant had always asserted that she was at risk of harm anywhere in Nepal if she returned and indeed from the “whole society” of Nepal: see [6] above. She never told the Tribunal of any place in Nepal where she would be likely to live if she returned there.

3. At [35] of its Decision Record the Tribunal recorded that she and Mr Rai had rented a room in Kathmandu and lived there until they came to Australia. Accordingly, based on her Protection visa application and her arrival in Australia on 6 June 2009 the Applicant had lived in Kathmandu before coming to Australia for a period of between some 12 – 14 months.

4. At [56] of its Decision Record the Tribunal noted that it asked the Applicant where she would live if she returned to Nepal, with the answer being that “she had nowhere to stay” and “she had nowhere to go and would end her own life”. The Tribunal then recorded that it raised with her country information evidencing the growing numbers of single and divorced women living independently in Kathmandu and asked if she could do that, to which the Applicant responded “that it was not safe [for] her because of her husband’s criminal brother. It was not safe for women like her”. At [57] the Tribunal went on to note that over the last decade divorce rates had tripled in Kathmandu where Nepalese culture was most “westernised” and further noted that country information indicated that everywhere else in Nepal traditional conservative culture still dominated. At [73] the Tribunal noted that a 2008 country report indicated that Nepali society in urban areas was far more tolerant of inter-caste marriage than was previously the case, except in conservative rural communities.

5. In these circumstances it was necessary for the Tribunal in relation to the issue of relocation to make a finding by way of identification of the place in Nepal to which it was likely that the Applicant would return, and then assess the risks that the Applicant might face on return to that place: see CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14 at [42] and [45].

6. In my view the Tribunal did not commit jurisdictional error in finding that it was satisfied that the Applicant would live in Kathmandu if she returned to Nepal.

7. At [37] of its Decision Record the Tribunal had recorded the Applicant’s claims that her parents-in-law and her husband’s brother had threatened and injured her in Kathmandu and at [56] that she claimed that Kathmandu was not safe for her because “of her husband’s criminal brother. It was not safe for women like her”. However at [75] of its Decision Record the Tribunal rejected these claims and expressed its satisfaction that she had not been threatened or harmed by her parents-in-law or harmed by Mr Rai’s family members before she had left Nepal to come to Australia and at [81] that Mr Rai’s family did not intend to harm her at all.  

8. At [88] of its Decision Record the Tribunal referred to the Applicant’s “home region” or “home area” as generally being very conservative with regard to the position of women.

9. Then at [90] of its Decision Record the Tribunal accepted that if the Applicant lived in Kathmandu as a married woman separated from her husband there might be “occasional gossip about her by some members of the community”, which the Applicant might understandably find distressing and demeaning.

10. Nevertheless, at [91] the Tribunal found that the urban environment of Kathmandu was “not one in which neighbours or other members of the community might want to seriously or significantly harm the applicant because of her background or history” and at [92] found that there was no real chance that neighbours or other community members in Kathmandu would seriously harm the Applicant if she returned to Nepal. None of this reasoning lacks an intelligible justification or is otherwise illogical or unreasonable. In light of the Applicant’s failure to identify where she was likely to live if she returned to Nepal the Tribunal was legally entitled to reason that she would live in Kathmandu because she had lived there for between 12 and 14 months before she came to Australia and it was the most “westernized” part of Nepal.

11. In my view Ground 6 fails to establish jurisdictional error.

Conclusion

1. In my view the Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application in this Court is to be dismissed.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date: 1 June 2018