SZWCI v Minister for Immigration and Border Protection
[2016] FCA 28
•2 February 2016
FEDERAL COURT OF AUSTRALIA
SZWCI v Minister for Immigration and Border Protection [2016] FCA 28
Appeal from: SZWCI v Minister for Immigration & Anor [2015] FCCA 1809 File number: NSD 739 of 2015 Judge: COLLIER J Date of judgment: 2 February 2016 Catchwords: MIGRATION – r 36.01(1)(a) Federal Court Rules 2011 (Cth) – appeal – whether Tribunal made a jurisdictional error in findings regarding to violence in Nepal – whether Tribunal had regard to expert psychologist report – whether Nepalese woman subject to harm as single and divorced woman without male relative – grounds of appeal have no merit – appeal dismissed Legislation: Migration Act 1958 (Cth) s 6 Date of hearing: 25 August 2015 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 14 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Ms F Taah of the Australian Government Solicitor Solicitor for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
NSD 739 of 2015 BETWEEN: SZWCI
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
COLLIER J
DATE OF ORDER:
2 FEBRUARY 2016
THE COURT ORDERS THAT:
The appeal be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLLIER J:
This is an appeal from the decision of a Federal Circuit Court Judge dismissing an application for review of a decision or the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal). The Tribunal had affirmed an earlier decision of a delegate of the Minister not to grant the appellant a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth).
Background
The appellant is a citizen of Nepal who came to Australia as a dependant on the student visa of her former husband. The appellant’s evidence was that she was pregnant and had an abortion before she and her former husband married, and that the marriage was an inter-caste marriage. She also claimed that she had left her family for him, that her former husband had threatened to kill her if she continued “chasing him”, and that if she returned to Nepal she would have no support from her parents or family.
The appellant failed to attend an interview with a delegate of the Minister in early 2014 and her application for a protection visa was refused. She subsequently applied to the Tribunal for review of the delegate’s decision. In the Tribunal the appellant claimed, inter alia, that she had a well-founded fear of harm if she returned to Nepal because she belonged to social groups characterised as Nepalese single women, Nepalese single women without the protection of a male relative, and/or Nepalese single women facing economic hardship and family violence. She also produced a medical report from a consultant psychologist who recommended that the appellant be diagnosed with Major Depressive Disorder with anxious distress (Moderately Severe).
Decision of the Tribunal
In summary, the Tribunal found as follows:
·While it took account of the observations of the psychologist and was mindful of the appellant’s vulnerabilities highlighted in the report, the Tribunal also noted that the report heavily relied on self-reporting as well as statements prepared by the appellant in support of her application for protection. It followed that the psychologist’s report could not be considered to be entirely independent of the appellant’s pursuit of a visa outcome.
·The Tribunal did not consider that the psychologist’s report indicated a compromise in the appellant’s capacity to participate in the review process.
·The Tribunal accepted a number of the appellant’s factual claims including that she had been pregnant to her former husband before marrying him, that she was banished from the family home as a result of this, and that she terminated the pregnancy before she married her former husband.
·However the Tribunal had concerns with the appellant’s credibility because of:
○unconvincing or absence of evidence that the appellant would be harmed by anyone on her return to Nepal (including her former husband);
○there were inconsistencies in her evidence concerning her separation from her former husband;
○the appellant had only at or around November 2008 – at a late stage in the proceedings – produced a letter recording that she had been hospitalised for “comprehensive aborted care” on 15 July 2008, notwithstanding that she also said that she had obtained the letter in late 2013.
·The Tribunal was not satisfied that the appellant would face a real chance of harm from her former husband in Nepal – indeed the evidence of the appellant was that her former husband wanted no further contact with her.
·The Tribunal was not satisfied that the appellant would face a real chance of harm from her own family, her former husband’s family or Maoists.
·In relation to the appellant’s claim that she was a member of a number of social groups identified as single women, without the protection of male family members:
○she was not harmed when she lived alone in Nepal prior to coming to Australia;
○prior to coming to Australia the appellant lived in Kathmandu for several months, where she demonstrated an ability to live independently. She also was able to live independently in Australia;
○the Tribunal was satisfied that the appellant should be able to work and live independently and safely in urban areas in Nepal such as Kathmandu;
○Country information concerning violence towards women in Nepal suggested that younger women in marriages experienced such violence, rather than someone like the appellant who was slightly older and not in a relationship. Country information also indicated that while there was some social stigma attached to divorced women in Nepal, divorced women had greater acceptance and protection in Nepal than they had when the appellant last lived there.
Accordingly, the Tribunal did not accept that the appellant would be the subject of serious harm as contemplated by the Act.
Federal Circuit Court
The appellant sought judicial review of the decision of the Tribunal on five grounds, in summary:
·the Tribunal relied on incompetent country information as to her protection in Nepal should she return, which information the Tribunal applied in an arbitrary manner;
·the Tribunal did not approach the case with an open mind, and in particular ignored completely the report of the psychologist;
·the Tribunal failed to consider whether the appellant would be stigmatised and the subject of predation as a single woman without the protection of a male relative, and a woman who had had an abortion;
·the Tribunal failed to consider whether the change in social conditions in Nepal was durable, substantial and effective, and whether the authorities in Nepal would be able to protect the appellant;
·the appellant is a victim because the Tribunal made a jurisdictional error in concluding that she did not have a well-founded fear of persecution.
The primary Judge found that these grounds of review were not substantiated, and dismissed the application. In particular his Honour found:
·the Tribunal gave close attention to all of the material before it and made a decision involving findings of fact referable to the evidence before it. The decision-making process of Tribunal cannot be described as arbitrary;
·in relation to the country information with which the appellant took issue, it is clear that the information was relevant, and it was a matter for the Tribunal as the finder of fact to decide whether to accept it and what weight should be given to that information;
·the Tribunal was not biased as the appellant claimed. Rather, it is clear that the Tribunal gave careful consideration to the psychologist’s report rendered by the appellant, and other information provided by the appellant;
·contrary to the contentions of the appellant, the Tribunal dealt specifically with the question whether the appellant would be stigmatised in Nepal;
·in relation to the question whether the change in circumstances in Nepal was durable, substantial and effective, this was particularly referable to the operation of Article 1C of the Convention Relating to the Status of Refugees. His Honour observed:
26.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.
·his Honour did not accept that the decision of the Tribunal was irrational or unreasonable. The conclusion of the Tribunal was based on findings of fact that had a rational basis in the material, explained in detail by the Tribunal.
Accordingly his Honour dismissed the application with costs.
Appeal to the Federal Court
The appellant appealed from the decision of the Federal Circuit Court on the following five grounds:
1.The Federal Circuit Court erred by failing to find that the Tribunal made a jurisdictional error in making the finding that the Tribunal has addressed and made appropriate findings on the violence in Nepal
2.I argue the Tribunal Member failed to properly apply the real chance test in my circumstances as the Member had heavily relied on incompetent information and reports regarding the independent country information as to the effectiveness, adequate resources and the capacity of my country in terms of my protection should I return to Nepal in which the Member applied her arbitrary view on this issue rather than the facts. I believe that as a result, the procedure had not been satisfactory.
3.I content that the Tribunal Member’s conclusion had been reached with a mind not open to persuasion and unwilling to evaluate all the material fairly as The Member has ignored completely an expert psychologist report given to the Tribunal to explain issues relating to my trauma and the mass of country information.
4.I content that the Tribunal failed to consider whether I might nevertheless be stigmatized from the conservative tribal mindset groups and predatory males as I am a single woman without the protection of a male relative. While the Tribunal member accepts that my past decision to have an abortion continues to cause me distress but the Tribunal Member did not consider my past abortion also would be a matter if I return to Nepal as the Tribunal Member relied purely on assumption and it is unfair.
5.I content that the Tribunal Member failed to consider whether the change in circumstances in Nepal is durable, substantial and effective. If it were a real possibility that the conservative mindset groups and predatory males might pose a serious harm to me if I were to return to Nepal as a single woman without a male relative and I argue that a chance of being harmed is not remote either. I argue the Tribunal Member failed to address the capacity of the Nepalese authorities to protect me from the conservative mindset groups and predatory males in the Nepalese society.
(Errors in original.)
At the hearing before me the appellant appeared in person with the aid of an interpreter. In summary, she submitted that:
·she believed that she had not received justice from either the Tribunal or the Court below;
·she has been weak and ill, and had written some wrong dates in the material before the Tribunal;
·her husband had betrayed her, and because she had not expected it she did not collect evidentiary material before she left Nepal;
·she cannot return to Nepal, because she was pregnant when she married and will be stigmatised.
The appellant filed no written submissions.
In my view the grounds of appeal before me have no merit. I take this view because:
·as the primary Judge observed, the consideration of country information was a factual exercise by the Tribunal, which the Tribunal conducted without being arbitrary as claimed by the appellant;
·like his Honour below, I do not accept that the Tribunal was biased merely because it did not accept the submissions of the appellant;
·like his Honour below, I do not accept that the Tribunal failed to consider relevant information before it, including the report of the expert psychologist. Rather, it is clear from the decision of the Tribunal that it did have regard to the psychologist’s report. The Tribunal’s reasons for according the report the weight it did are set out clearly in the Tribunal’s decision;
·contrary to the claims of the appellant, the Tribunal gave considerable attention to the issue whether the appellant would be stigmatised in Nepal should she return, and in particular whether she would be the subject of serious harm as contemplated by the Act. This point was also explained by his Honour in his judgment;
·the fifth ground of appeal was in similar terms before his Honour, and dealt with by his Honour at [24]-[27] of the primary judgment. There is no error in his Honour’s reasoning in these paragraphs.
I am somewhat troubled that the appellant has been unwell as described in the material before me. However the Tribunal explained, in considerable detail, its reasons for finding that the appellant would not be the subject of serious harm as contemplated by the Act should she return to Nepal. In my view this analysis is not attended by any error.
In my view the appropriate order is that the appeal be dismissed with costs.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate:
Dated: 1 February 2016
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