SZWCI v Minister for Immigration
[2015] FCCA 1809
•4 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZWCI v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1809 |
| Catchwords: MIGRATION – Protection visa – refusal – review of Refugee Review Tribunal decision – allegation that Tribunal’s decision was arbitrary, relied on incompetent information, affected by bias, irrational and unreasonable – allegation that the Tribunal failed to consider part of the applicant’s claims – no jurisdictional error – application dismissed. |
| NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 NBGM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 60 SZWCK & Anor v Minister for Immigration & Anor [2015] FCCA 1810 |
| Applicant: | SZWCI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 343 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 4 June 2015 |
| Date of Last Submission: | 4 June 2015 |
| Delivered at: | Sydney |
| Delivered on: | 4 June 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitor for the Respondents: | Ms F. Taah, Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant to pay the first respondent’s costs fixed in the amount of $4,200.
Should a transcript of today’s proceedings be produced, the name of the applicant, wherever appearing, be redacted.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 343 of 2015
| SZWCI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Ex Tempore & Revised)
Background
The applicant is a citizen of Nepal, who arrived in Australia on 20 November 2008, as a dependent on her husband, who came here as a student. The applicant claimed that before coming here, her husband had forced her to have an abortion. At some point during their stay in Australia, the relationship between the applicant and her husband broke down and on 26 July 2013, she applied for a protection visa.
In brief, her claims were that she no longer had the support of her family because of her inter-caste marriage and that she feared being raped and tortured. She also feared the family of her former husband. The delegate of the first respondent (“Minister”) made a decision on 20 February 2014 to refuse to grant the applicant a protection visa. The applicant applied to the second respondent (“Tribunal”) for a review of that decision. In a statutory declaration made on 11 November 2014, the applicant provided the Tribunal with further details of the reasons for the breakdown of her relationship; effectively that her husband had been unfaithful to her and that he was now married to an Asian woman.
The applicant attended a hearing before the Tribunal on 12 November 2014 and gave evidence in support of her claims. The transcript of the Tribunal hearing reveals that at the end of the hearing, the applicant was given an opportunity to provide further written submissions or other written material. In accordance with that opportunity, the applicant’s migration agents, on her behalf, filed a number of documents. The first was a statutory declaration by the applicant. She claimed a number of matters in that declaration in response to the question she had been asked by the Tribunal. She claimed that if she returned to Nepal, she would be vulnerable to a targeted attack, sexual assault and acid throwing from her husband’s family and his cousin’s family.
That was particularly so because of the apparent shame brought upon the family by their son’s marriage to a non-Nepalese woman. Not the applicant, but the Asian woman referred to earlier in these reasons. The applicant further said that she would seek justice against her husband for forcing her to kill her own baby and that if she did so, either he or his family would target her to silence her. She said that on return to Nepal, she would not have any male protection and that her family would target her as well because she had ruined their reputation by marrying someone of a different caste.
The applicant claimed that she could not relocate to India and that in Nepal, as a single woman, she would be exposed to many problems including sexual assault and abduction to engage in the sex trade. Another document submitted after the hearing was a submission dated 1 December 2014. In that submission, the applicant’s agents argued that the reasons for which the applicant would be targeted in Nepal were her membership of the following groups: Nepali single women, Nepali single women without protection of male relative and Nepali single women facing economic hardship and family violence. The agents supported these claims with considerable reference to independent material.
The third document submitted on behalf of the applicant was the report of a consultant forensic psychologist. In her report, the psychologist gave the opinion that the applicant had described a constellation of psychological difficulties which were characterised by clinically significant disturbance in her cognition, emotional regulation and behaviour. She concluded that it was unlikely that resolution of depressive and anxiety symptoms would occur while the fear of returning to Nepal under the conditions outlined by the applicant remained. The Tribunal made its decision on 18 January 2015 affirming the decision of the delegate.
The applicant now seeks judicial review of that decision. In order to succeed, the applicant must establish that the Tribunal’s decision was affected by jurisdictional error.
The Tribunal’s decision
Before turning to the grounds relied upon by the applicant, it is necessary to briefly outline the reasons for the Tribunal’s decision. Before the Tribunal turned to making its findings of fact, it considered the psychological report in some detail. In particular it considered whether there was any suggestion that the applicant’s mental condition might have affected her ability to give evidence and concluded that it did not.
The Tribunal found that while it had significant credibility concerns about some of the applicant’s claims, it did accept a number of her claims as true. Included amongst those claims were that the applicant had married her husband in Kathmandu and lived there before coming to Australia. It accepted that her husband did not support her pregnancy and so insisted that she have an abortion, which she did and that since they had come to Australia, they had divorced.
The Tribunal gave a number of reasons for its credibility concerns, including the extensive delay between her arriving in Australia and her making an application for a protection visa. It also had concerns based upon the inconsistency in the applicant’s evidence concerning the separation from her husband. It concluded the applicant’s ex-husband’s threats and abuse towards her had been motivated by a desire to persuade her to accept a divorce and that since the divorce was obtained in around May 2013, the ex-husband had demonstrated no interest or desire to contact, threaten or mistreat the applicant in any way, either directly or through any family members. For that reason it was not satisfied that the applicant faced any real chance of harm from her ex-husband in Nepal.
The Tribunal gave further consideration to the credibility of the applicant, analysing the differences in the dates given by her for the abortion and other anomalies regarding her claimed circumstances prior to leaving Nepal. However, it gave the applicant the benefit of the doubt and accepted that she became pregnant to her ex-husband, who was of a different caste, before they married and that she was banished from her family home when she told her parents of her pregnancy and her ongoing relationship with her husband. The applicant’s family and her ex-husband’s family did not accept their relationship or marriage and they came to Australia together in 2008.
The Tribunal then turned to the question of future harm and found that it was not satisfied that any member of her family had attempted to harm her in any way since she was banished from her home.
It was not satisfied that any of her family had any intention to seek her out, or harm her, if she were to return there. Similarly, it found that her ex-husband’s family, while they might not have been happy about the relationship with the applicant and her ex-husband, had made no attempt to harm her in any way and that it was mere speculation that they might do so in the future.
In respect of the conservative society in Nepal the Tribunal did not consider that her claimed fears in connection with her abortion or relationship with her ex-husband, was supported by her evidence. The Tribunal also rejected the claim that her family might involve Maoists in order to hurt her, essentially for the same reasons as it had rejected the claim about harm from her family directly.
The Tribunal then turned to consider the particular social groups relied upon by the applicant and on the basis of the material before it, was not satisfied that there was any real chance of significant or serious harm for the reason of her membership of any of those groups.
The Tribunal noted, in particular, that the country information suggested that divorced women now have more legal protections and enjoy greater social tolerance than was the case when the applicant was in Nepal and that while some stigma remained towards them, it did not consider that that arose to the level of serious or significant harm.
For those reasons, the Tribunal found that the applicant did not satisfy the criteria for the grant of a protection visa and affirmed the delegate’s decision.
Consideration
Ground 1
The first ground in the application is that the Tribunal member relied heavily on incompetent information and applied its arbitrary view on the issue rather than the facts. Those two claims cannot stand together. As I have recently said, in the case of SZWCK & Anor v Minister for Immigration & Anor [2015] FCCA 1810, the notion of arbitrariness is applied to decision-making for which there is no reasonable basis given. It is decision-making made on the basis, for example, of the toss of a coin.
In this case, the Tribunal’s reasons reveal that it gave close consideration to all of the material before it and that its assessment of that evidence formed the basis of its findings of fact, and ultimately, its conclusion. That process cannot be described as arbitrary.
Insofar as the applicant refers to the information relied upon by the Tribunal as incompetent, the claim can only rise so far as a disagreement with that information. The material before the Tribunal was relevant to the decision to be made, and it was a matter for the Tribunal to – decide what weight was to be given to that material and, indeed, whether to accept it or not: see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]-[13]. For those reasons the first ground must be rejected.
Ground 2
The second ground is that the Tribunal was biased because it ignored the psychologist’s report as well as the country information provided to the Tribunal by the applicant’s agents. Both of the foundations of the claim of bias cannot be supported.
As is apparent from the summary of the Tribunal’s decision above, the Tribunal gave close consideration to the psychologist’s report. It is also clear that the Tribunal gave consideration to the information provided by the applicant’s agents. Given that there is no factual basis for the claim of bias, that claim must be dismissed.
Ground 3
The third ground is that the Tribunal failed to consider whether the applicant would be stigmatised from conservative groups and predatory males as a single woman without the protection of a male relative and that the Tribunal did not consider that the applicant’s past abortion would be a matter that would cause her harm if she returned to Nepal. The Tribunal dealt, expressly, with both of those matters in [53] and [54] of its reasons. This ground must be rejected.
Ground 4
Ground 4, is that the Tribunal failed to consider whether the change in circumstances in Nepal is durable, substantial and effective. The ground also contains an argument that the Tribunal failed to address the capacity of the Nepalese authorities to protect the applicant from conservative people and predatory males.
The phrase “durable, substantial and effective” is similar to authorities that have considered the operation of Article 1C(5) of the Convention Relating to the Status of Refugees (“Convention”). That article provides that:
(C)The Convention shall cease to apply to any person falling under the terms of section A if;
…
(5)He can no longer, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality;
…
See for example, NBGM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 60.
That circumstance is clearly not referable to this case because the applicant has not been recognised as falling within Art.1A of the Convention. It may be that if information before the Tribunal suggests that the circumstances in a particular country are fluid and rapidly changing, the Tribunal might be required to consider those circumstances in determining whether a fear is well founded. However, that does not appear to be the case in these proceedings. While the country information did refer to a change in circumstances, that change was a positive change in respect of people in the applicant’s circumstances and not one that was necessarily fluid in the sense that it might revert or be more negative. Thus the first part of ground 4 is rejected.
The second argument in ground 4 should be rejected because the Tribunal, in effect, found that there was no well-founded fear of persecution in respect of the conservative mindset groups and predatory males. It was therefore not necessary for the Tribunal to address in addition the capacity of the authorities to protect the applicant from such harm.
Ground 5
The final ground is that the Tribunal’s conclusion was irrational and unreasonable. That conclusion, however, was based upon findings of fact that had a rational basis in the material. That rational basis was explained in some detail by the Tribunal and while it may be that a different decision-maker might come to a different conclusion on the same material, it cannot be said that the conclusions arrived at by the Tribunal were not open to it. For those reasons, the conclusions were neither irrational nor unreasonable.
Conclusion
For those reasons, the applicant has not established jurisdictional error in the Tribunal’s decision and the application is dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 6 July 2015