SZVXB v Minister for Immigration

[2016] FCCA 193

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVXB v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 193

Catchwords:
MIGRATION – Review of decision of the former Refugee Review Tribunal – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Randhawa v Minister for Immigration (1994) 52 FCR 437

Applicant: SZVXB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3590 of 2014

Judgment of: Judge Driver

Hearing date: 5 February 2016

Delivered at: Sydney

Delivered on: 5 February 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms R Krishnan of Australian Government Solicitor

INTERLOCUTORY ORDERS

1. The name of the second respondent is amended to the Administrative Appeals Tribunal.

2. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,543.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3590 of 2014

SZVXB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  The decision was made on 18 November 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

2. The applicant is from Nepal and had made claims arising out of his marriage to a Thai woman.  Background facts relating to the applicant’s claims and the Tribunal decision on them are set out in the Minister’s outline of legal submissions filed on 29 January 2016. 

3. The applicant, a citizen of Nepal, first arrived in Australia in September 2006 on a student visa[1].  The applicant’s last substantive visa ceased on 25 October 2010[2].  On 22 May 2013, the applicant applied for a protection visa, claiming that, if returned to Nepal, he would face harm from his family, and society more generally, due to his “inter-caste” marriage to a much older woman[3].  His application was refused by a delegate of the Minister on 12 November 2013[4].  On 17 February 2014, he was re-notified of the delegate’s decision because the initial notification of the decision had been defective[5].  He applied to the Tribunal for review of the delegate’s decision on 17 March 2014[6], and appeared before the Tribunal on 14 November 2014[7].

   [1] Court Book (CB) 42

   [2] CB 42

   [3] CB 1-33

   [4] CB 41-50

   [5] CB 51-54

   [6] CB 55-56

   [7] CB 71-73

Before the Tribunal

1. The Tribunal affirmed the decision of the delegate on 18 November 2014[8].  The Tribunal accepted that on 20 January 2012 the applicant, then aged 25, married a New Zealand national of Thai heritage. It accepted that the applicant’s spouse was aged 51 years at the time of their marriage, currently resided in Australia, and intended to remain in Australia for the reasonably foreseeable future[9].  It also accepted that the applicant was of the Newar caste, and that the applicant’s spouse was not[10].

   [8] CB 116-130

   [9] CB 118 [10]

   [10] CB 119 [13]

2. However, the Tribunal expressed serious doubt concerning the genuineness of the applicant’s spousal relationship.  It considered that the applicant’s evidence was hesitant and vague regarding significant aspects of his spouse’s circumstances, including how long she had lived in Australia, where he proposed to her, the identity of her ex-husband, the circumstances of her divorce, the age of her son and who was looking after him, and where her parents lived[11].

   [11] CB 119-120 [15]-[18] and [20]

3. The Tribunal considered the delay in the applicant’s lodgement of a protection visa application, a delay of approximately two and a half years, to be significant[12].  Apparent inconsistencies between the applicant’s evidence to the Tribunal, and statements made in his written application and to the delegate compounded the Tribunal’s concerns. In particular, the Tribunal noted that:

   a)the applicant stated in his written application that he and his spouse had been in a relationship for 16 months before they married. However, he told the Tribunal that they only met seven or eight months before they married[13];

   b)in his Department interview the applicant stated that he did not know, or was unable to pronounce, his wife’s former married name. However, the applicant was able to recall and pronounce the name at the hearing[14]. 

   [12] CB 122 [24]

   [13] CB 120 [20]

   [14] CB 121 [22]

4. The Tribunal referred to the country information provided by the applicant concerning inter-caste harm in Nepal.  However, it noted that ill-treatment of inter-caste couples had been illegal in Nepal following the passage of The Caste-based Discrimination and Untouchability Crime Elimination and Punishment Act in May 2011[15].  While mindful of the applicant’s evidence that laws enacted in Nepal are not always observed, the Tribunal found that independent reports did not support the applicant’s claims regarding staunch intolerance within his community towards inter-caste marriages or couples where there was a significant age gap between the parties[16]. 

   [15] CB122-123 [26]

   [16] CB 122-123 [26]-[27]

5. The Tribunal also referred to medical documentation provided by the applicant disclosing his spouse’s ill health.  It noted the applicant’s claim that this evidence showed his spouse needed him to remain in Australia to look after her.  However, the Tribunal found that the evidence did not overcome its cumulative concerns in relation to the genuineness of their spousal relationship[17].

   [17] CB 124 [29]

6. Having regard to the above, the Tribunal was not satisfied that the applicant’s relationship with his spouse was genuine.  Nor was it satisfied that his marriage to her has given his family, community, or anyone else in Nepal any desire to harm him in any way.  It therefore concluded that the applicant did not satisfy either of the refugee or complementary protection criteria[18].

   [18] CB 123 [28]

The present application

1. These proceedings commenced with a show cause application filed on 22 December 2014.  The applicant continues to rely upon that application.  The applicant has not taken up the opportunity afforded to him by consent orders made on 12 February 2015 for the filing of an amended application or additional evidence.  The grounds in the application are:

   1.My application was not reviewed thoroughly.

   2.They did not ask me the related qustia.

   3.I was nervous & panic and sick but they (RRT) did not consider anything about me.

   4.There are well founded fear to back my country but the tribunal did not go through the detail research.

   5.I would like to submit more evidence that support me but could not get sufficient time. (errors in original)

2. The application is supported by a short affidavit filed with it, which I received, that simply introduces the Tribunal decision. 

3. I have before me as evidence in addition the book of relevant documents filed on 12 February 2015. 

4. The Minister prepared written submissions in accordance with the procedural orders made. 

5. The applicant appeared in person and made oral submissions.  It was apparent that he feels indignant about the Tribunal’s finding that his marriage is not genuine.  He was validly married and maintains that the relationship is genuine and ongoing.  The applicant’s wife did not attend today’s hearing but the applicant assured me that she could be brought to court in response to a simple phone call.  I have no reason to dispute that.  The applicant came to Australia 10 years ago as a student and appears to have been substantially absorbed into the Australian community and Australian way of life.  He is understandably reluctant to return to Nepal.  It is reasonable to suppose that his wife would be even more reluctant to go there.  That gives rise to humanitarian considerations, also bearing in mind the health issues of the applicant’s wife asserted by him.  Those are matters that could be considered by the Minister, should he be so minded.  They are, however, matters outside the parameters of this proceeding.

6. In terms of the grounds in the application, there is nothing to support the proposition that the Tribunal failed to give lawful consideration to the applicant’s claims.  The applicant asserts nervousness, panic and sickness, presumably at the time of the Tribunal hearing and, indeed, it appears that he told the Tribunal he was nervous.  The Tribunal says that it took that into account. 

7. The fourth ground in the application is simply an expression of disagreement with the merits of the Tribunal decision. 

8. The final ground is a wish to submit additional evidence.  I asked the applicant what that evidence would have been and he referred to country information about the caste system in Nepal and its consequences.  It does not appear to me that there was any want of country information before the Tribunal on that issue.  Nor is there any evidence that the applicant sought more time to submit further material to the Tribunal.

9. I otherwise agree with the Minister’s submissions on the grounds of review. 

10. Grounds 1, 3 and 4 contend that the Tribunal did not adequately consider all of the applicant’s claims and evidence. This contention is without substance.  The Tribunal was not obliged to accept uncritically any and all the allegations made by the applicant[19].  Its reasons disclose that it carefully considered the applicant’s claims and evidence, and the explanations given to address its concerns about the genuineness of his spousal relationship.

    [19] Randhawa v Minister for Immigration (1994) 52 FCR 437 at 451

11. Contrary to the applicant’s assertion in Ground 3, the Tribunal also considered the applicant’s claim that he was nervous and stressed at the hearing.  While accepting that the applicant was nervous and stressed, it was not satisfied that this explained or overcame its significant and cumulative concerns regarding his evidence[20].  It was reasonably open to the Tribunal to so find.

    [20] CB 119 [12]

12. Ground 2 appears to assert that the Tribunal did not ask the applicant “related questions”.  However, this cannot be said with certainty given that the last word is partly illegible.  It lacks foundation.  It is clear from the Tribunal’s reasons that it asked the applicant about the significant aspects of his claims, namely his relationship with his wife, his wife’s personal history, his family history and caste, and country information regarding inter-caste marriage. It is also clear that the Tribunal put to the applicant its concerns about the genuineness of his spousal relationship, and gave the applicant and opportunity to respond to these concerns[21].

    [21] CB 119-123 [13]-[36]

13. In so far as Ground 5 contends that the applicant was not given sufficient time by the Tribunal to submit further evidence, it cannot be made out. There is simply no evidence that the applicant intended to submit further evidence in support of his claims, or sought an extension of time to obtain further evidence.

14. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. 

15. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application be dismissed.

16. 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 $2,543.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:  9 February 2016