SZWCJ v Minister for Immigration

[2016] FCCA 1479

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWCJ v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1479

Catchwords:
MIGRATION – Application for a protection (Class XA) visa – review of decision of Refugee Review Tribunal – whether the Tribunal considered the applicant’s relocation to Kathmandu – whether the Tribunal’s finding the applicant would not face harm upon return to Nepal was unreasonable – whether the Tribunal considered all of the applicant’s circumstances and investigated the evidence before it– no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.430

BZAHN v Minister for Immigration & Border Protection [2016] FCA 281
Minister for Immigration & Border Protection v SZSCA (2014) CLR 317; [2014] HCA 45
Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39

Applicant: SZWCJ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 344 of 2015

Judgment of: Judge Smith

Hearing date: 20 May 2016

Date of Last Submission: 20 May 2016

Delivered at: Sydney

Delivered on: 20 May 2016

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms E Warner-Knight, Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $4,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 344 of 2015

SZWCJ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore & Revised)

1. The applicant is a citizen of Nepal, who first arrived in Australia on 26 March 2009. She left Australia briefly in early 2010 and on 9 October 2013 the applicant lodged an application for a protection (Class XA) visa. On 31 March 2014 a delegate of the Minister decided to refuse to grant the applicant a visa.  On 16 April 2014 the applicant applied to the Refugee Review Tribunal[1], for a review of the delegate’s decision. On 18 January 2015 the Tribunal affirmed the delegate’s decision.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

2. The applicant now seeks judicial review of the Tribunal’s decision in this Court. The power of this Court is limited. Unlike the Tribunal, it is not the role of the Court to determine whether or not the applicant has any fear of harm upon return to Nepal. Rather, it is limited to examining whether or not the Tribunal’s decision was affected by jurisdictional error. For present purposes, it is sufficient to summarise jurisdictional error by saying that it is an error sufficiently serious to have affected the exercise of the Tribunal’s power.

3. The applicant filed an application with the assistance of a lawyer that raised four grounds. The applicant appeared at the hearing before me, unrepresented, and made a number of submissions about the Tribunal’s decision. In order to understand the grounds, or the disposition of the grounds, and the oral submissions made by the applicant, it is necessary to set out the background and the Tribunal’s reasons.

Background

1. In her application for a visa the applicant claimed that she was married; she was a Brahmin and married to a man of a lower caste. In order to avoid social ostracism the applicant and her husband left Nepal and came to Australia. However, in Australia, the applicant gradually realised that her husband had married her to use her to earn money for his education and other expenses. The applicant claimed that her husband left her for an Australian, and that she would face harm upon return to Nepal for the following reasons.

2. First, her family would harm her for bringing disrepute to them and to the Brahmin society; secondly, her Brahmin relatives, who were already angry with her, may harm her for living with a man of a lower caste, and returning as a single woman by destroying the marriage norms; thirdly, the applicant feared that she may be forced into prostitution or trafficked to other countries to engage in the sex trade; fourthly, the applicant feared sexual harassment due to her status as a single woman; and fifthly, she claimed that society would look at her as a morally corrupt woman. The applicant claimed that she could not get State protection.

3. On 17 February 2014 the applicant’s lawyers sent a very lengthy written submission to the Department in support of her application. In this submission they argued that the applicant was a person to whom Australia had protection obligations because she had a well-founded fear of persecution for her membership of the following social groups:

   i)Nepali single women;

   ii)Nepali single women without protection of male relative; and

   iii)Nepali single women facing economic hardship and family violence.

   The applicant’s lawyers also claimed that there was no meaningful option to relocate or to obtain effective protection from the authorities.

4. A large amount of the submission was addressed to information concerning violation of women’s rights and gender inequality in Nepal. On the same day, the applicant’s lawyers sent to the Department a more detailed statement by the applicant. In that, effectively, the applicant expanded upon the claims that she had made in her visa application, adding that she was eventually divorced from her husband on 17 August 2012 and also, that because of corruption in Nepal the police would not intervene when she suffered violence.

Tribunal hearing

1. The Tribunal conducted a hearing on 9 December 2014, in which the applicant attended and gave evidence in support of her claims. On 10 December 2014 the applicant’s lawyers sent the Tribunal written submissions concerning the relevant circumstances concerning young women in Nepal, as well as a further statutory declaration made by the applicant.

2. In that declaration, the applicant said that she feared harm from her husband and his family because they were afraid that she would reclaim the money that she spent on her ex-husband. For that reason, she said that her ex-husband and his family would target her and harm her, and in her view, she was physically and mentally tortured to earn money to pay for her husband’s studies and his family’s expenses, which she considered as a dowry. The applicant also repeated her claim that her family and the Brahmin caste people considered her as somebody who had damaged both of their reputation, and that she faced harm for that reason.

Tribunal’s decision

1. The Tribunal made its decision on 18 January 2015. It made the following findings, which it set out in a statement of reasons, prepared pursuant to s.430 of the Migration Act 1958 (Cth).

2. First, the Tribunal accepted that the applicant was living separately and apart from her husband since, at least, August 2011 and that they were divorced on 17 August 2012. It also accepted that the applicant was from the Brahmin caste, an elite caste in Nepal, and that the applicant’s ex-husband, was of the lower caste, as claimed.

3. The Tribunal then considered the applicant’s relationship with her family and with her ex-husband’s family. The Tribunal did not accept that the applicant’s ex-husband’s family had ever made a threat to her, in any way or at any time, principally because she did not mention such a threat when she was asked by the Tribunal to describe her interaction with her ex-husband’s family.

4. Secondly, the Tribunal considered that neither the ex-husband nor his family had any desire to harm the applicant currently or in the reasonably foreseeable future, and that the lack of contact with them, and any reliable information about it, made the applicant’s fears appear entirely speculative.

5. The applicant made a number of claims in the statutory declaration made after the Tribunal hearing. The Tribunal found that the applicant had no intention of reclaiming the money that she had spent on her ex-husband should she return to Nepal. It was not satisfied that the applicant would face a real chance of serious or significant harm from her ex-husband or his family, in the unlikely event that she did take such action.

6. The Tribunal then turned to consider the applicant’s own family. It found that the applicant’s evidence regarding her interactions and relationships with members of her family was problematic in significant respects.

7. In particular, the Tribunal noted parts of the applicant’s oral evidence that it considered was inconsistent with her written claims. First was the contact that the applicant said that she had with her sister in Nepal; secondly, it noted that her evidence, as to when the applicant last spoke to her parents was vague and changing, and explained that at some length. In light of that, the Tribunal found that the applicant’s evidence did not support her claim that her family had disowned her or wants to harm her in any way.

8. The applicant claimed that her family wished to harm her in connection with having married outside of the Brahmin caste. The Tribunal found that it was undermined by the applicant’s evidence that after marrying her husband she continued to live in Nepal and work at the same laboratory where she had worked since 2006 when she was living with her family. In spite of that, the applicant gave no evidence that her family had ever approached her or made any attempt to harm her in any way, either at her place of employment or on her way to or from work. The Tribunal found that suggested that neither the applicant’s family nor anyone else from the Brahmin caste had any interest or intention to harm the applicant for marrying outside that caste.

9. The Tribunal also found that its concerns in respect of these claims were compounded by the applicant’s evidence concerning her contact with her brother, who lives in Australia. In particular, it found that there was no suggestion that he had made any derogatory comments or threats or demonstrated any intention to harm her in any way.

10. Finally, while the Tribunal accepted that the applicant had moved from her parents’ home town to live with her in-laws it was not satisfied that that demonstrated any risk of harm or that she was estranged from her family and does not have family support in Nepal.

11. The Tribunal then turned to consider the independent information concerning circumstances in Nepal. It noted, first, evidence about ill-treatment of inter-caste couples but referred to evidence that such treatment had been illegal in Nepal since the passing of a particular Act. The Tribunal also noted evidence concerning the difficulties faced by divorced women in conservative rural communities, but given the applicant’s work, study and residential history it found that if she were to return to Nepal the applicant would reside in Kathmandu. The Tribunal found that attitudes to inter-caste relationships and divorce are less conservative there than in rural areas. It also noted independent evidence to the effect that there had been positive changes in Nepal for divorced women.

12. The Tribunal then returned to consider the applicant’s particular circumstances and first addressed her claim that she would not be able to remarry because of her physical appearance and because she is divorced. The Tribunal did not accept that the applicant’s appearance would be any impediment to prospects of marriage, and while it accepted that her divorce might hinder her ability to remarry it was not satisfied that, without more, that gave rise to a real chance of serious or significant harm in the reasonably foreseeable future.

13. The Tribunal made that finding on the basis of the aspect of the applicant’s claims that it accepted. In that respect the Tribunal specifically accepted that if she were to return to Nepal the applicant would do so as a single woman who divorced from an inter-caste marriage. However, it did not accept that she was estranged from her family or that she would be denied their support in Nepal.

14. The Tribunal stated again that the applicant would return to reside in Kathmandu, where she had lived, worked and studied previously and where she has accessible family networks. It found that she would be able to access sound and reputable employment and accommodation in Nepal, which would minimise any actual perceived vulnerability she might otherwise have as a single woman. While accepting that single women in Nepal can be vulnerable to such abuse, it did not consider that to be a real risk for the applicant in the context of what the Tribunal accepted of the applicant’s background and circumstances.

15. The Tribunal then turned to consider the information concerning women more generally in Nepal, and in particular the fear of exposure to sexual harassment and mistreatment. In this respect it found that as the applicant was not a child and was no longer married, information presented by her lawyers concerning domestic violence was of limited assistance. The Tribunal also considered other material presented by the applicant’s lawyers concerning trafficking and sexual abuse, but in the context of the claims accepted by it, the Tribunal considered the statistics and details contained in those reports, together with the lawyer’s submissions were not determinative in assessing the risks of serious and/or significant harm in Nepal in the reasonably foreseeable future.

16. The Tribunal then considered the particular social groups posited by the applicant’s lawyers. In respect of the Nepali single women social group it found that given the applicant’s education, work experience, family connections, caste, background and employment prospects that there was no real chance of serious or significant harm occurring for that reason. In respect of Nepali single women facing economic hardship and family violence the Tribunal found that the applicant did not face economic hardship or family violence and so rejected the claim.

17. Finally, regarding the social group described as Nepali single women without protection of a male relative, the Tribunal found that the applicant remained in touch with her family, including her father. The Tribunal found that she remained a supported member of her family and would be perceived to be part of a family network, and that perception would provide her with added protection in Nepal. For that reason there was no real chance of serious harm as contemplated by the Act in respect of that particular social group.

18. The Tribunal then summarised its findings at [34]:

    In summary, having considered all the claims and evidence above and noting the significant and cumulative concerns regarding the credibility of many aspects of the applicant’s claimed circumstances, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm in Nepal in the reasonably foreseeable future from anyone including her family or Brahmin society more generally or from her ex-husband or his family. The Tribunal is not satisfied that she faces a real chance of being forced into prostitution or trafficked to other countries to engage in the sex trade or that she faces a real chance of sexual harassment rising to the level of serious or significant harm as contemplated by the relevant law. While the Tribunal accepts that she may experience gossip and stigma amongst more conservative elements of Nepali society in respect of her former inter-caste marriage and/or her divorce, the Tribunal is not satisfied that any gossip or stigma she faces a real chance of experiencing rises to the level of serious or significant harm. The Tribunal also accepts that the applicant will face difficulties remarrying as a divorced woman, however the Tribunal is not satisfied that difficulties or an inability to remarry in the reasonably foreseeable future amounts to, or gives rise to, in the context of what the Tribunal accepts of the balance of her circumstances, serious or significant harm. The Tribunal is also not satisfied that the applicant has any intention or desire to “reclaim the money I spent on my ex-husband if I return to Nepal” or that she faces a real chance of any harm from her ex-husband or his family in respect of that claimed intention. The Tribunal is also not satisfied that the applicant faces a real chance of persecution in Nepal for reason of her membership to particular social groups (PSGs) characterised as “Nepali single women” (PSG 1) and/or “Nepali single women without protection of a male relative” (PSG 2) and/or “Nepali women facing economic hardship and family violence” (PSG 3) as submitted by her RMA [registered migration agent].

19. In light of those findings, the Tribunal was not satisfied that the applicant satisfied the criteria for the grant of a protection visa and so affirmed the decision of the delegate.

Consideration

First ground

1. The first ground of the application is:

   I am not satisfied with the Refugee Review Tribunal Member’s decision in my case because it is not well-balanced and lawful decision and I believe the Tribunal Member made a legal error in making the finding that I could relocate to Kathmandu when there was no evidence before it to that effect.

2. The principal difficulty with this ground is that the Tribunal did not make a finding of relocation, as such. This is not a case where the Tribunal accepted that the applicant would return to her home town, might face serious harm there, but could avoid that harm by reasonably relocating to another part of her country of nationality. It is in those circumstances that the principal of relocation ordinarily arises. In this case the Tribunal simply found that the applicant would upon return to Nepal and live in Kathmandu: [22] and [28] of the Tribunal’s reasons.

3. The explanation given for that finding by the Tribunal was all of the background to the applicant’s current circumstances including her family network, her work and her study, as well as the fact that she had lived there before. Those circumstances were all probative of the conclusion that the applicant would return to Kathmandu.

4. The Tribunal addressed the question of the applicant’s ability to reasonably survive in Kathmandu, such as whether or not she would find employment and accommodation there. I conclude that there was evidence to support the Tribunal’s finding that the applicant would return to Kathmandu and that it did not err in any application of any principal relating to relocation. Compare, for example, Minister for Immigration & Border Protection v SZSCA (2014) 89 ALJR 47; [2014] HCA 45. For those reasons the first ground is rejected.

Second ground

1. The second ground is:

   It is contended that the Tribunal Member made a jurisdictional error in concluding that I could relocate to Kathmandu having regard to the material upon which the Tribunal Member relied, that reliance being irrational and unreasonable.

2. That ground is, in effect, no more than a restatement of the first ground and is rejected for the same reasons as the first ground.

Third ground

1. The third ground in the application is that the Tribunal made a jurisdictional error in concluding that the applicant did not have a well-founded fear of persecution, that conclusion being irrational and unreasonable.

2. I have set out above in considerable detail the findings and reasoning of the Tribunal. Those findings and that reasoning reveals that the Tribunal analysed all of the evidence before it. I accepted some of the applicant’s evidence but rejected other aspects of her evidence. The evidence that the Tribunal rejected was based in turn upon an analysis of that evidence, including the consistency or inconsistency with other aspects of the material before the Tribunal.

3. Having made findings concerning the applicant’s particular claims, the Tribunal then had regard to independent information and gave reasons for accepting some of that information but not all of it. More importantly, the Tribunal gave its reasons for the relevance of that information to the applicant’s circumstances. Finally, having examined all of the evidence, the Tribunal set out its conclusions on the particular claims made at the level of the criteria for the grant of the visa.

1. In that way, the Tribunal’s reasons reveal that it approached its task of reviewing the delegate’s decision in a logical way that was based upon evidence and findings of fact which were available on that evidence. In other words, its conclusion was neither irrational nor unreasonable and fulfilled its duty to review the delegate’s decision.

2. For that reason, ground 3 is rejected.

Fourth ground

1. The fourth ground is that the Tribunal member failed to deal with the applicant’s circumstances lawfully. At that level of generality, the ground is not helpful in revealing any jurisdictional error. However, given my analysis of the Tribunal’s reasons, I am not satisfied that the Tribunal proceeded or dealt with the applicant’s claims otherwise than in accordance with the law.

2. For that reason, ground 4 is rejected.

Additional grounds raised at the hearing

1. In oral submissions at the hearing, the applicant essentially made two submissions. The first was that the Tribunal’s decision was irrational or unreasonable. I have already dealt with that argument in respect of ground 3 in the application.

2. The second argument was that the Tribunal made its decision without any investigation. This argument can be taken at two levels.

3. The first is that the Tribunal potentially failed to investigate the evidence before it. In other words, it failed to have regard to that evidence. As I have already explained, the Tribunal’s reasons showed that it did consider all of the evidence, including country information, which was not provided to it by the applicant or her lawyer. In light of that, it cannot be said that the Tribunal failed to have regard to any evidence and did not investigate in that sense.

4. The second way in which the ground can be understood is that the Tribunal failed to make some inquiry about the applicant’s particular circumstances. There was no suggestion as to what inquiries the Tribunal should have made, or indeed, if any such inquiries would have been fruitful.

5. There is no general duty on the Tribunal to investigate. See for example, BZAHN v Minister for Immigration & Border Protection [2016] FCA 281 at [52]. Relevant to this is the decision of the High Court in Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39, where the Court said at [25]:

   Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error.  The duty imposed upon the Tribunal by the Migration Act is a duty to review.  It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review.  If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.  It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.  It is not necessary to explore these questions of principle in this case.  There are two reasons for that.

   (Citation omitted)

6. In my view, in the absence of any request by the applicant that any particular inquiry be made, and the absence of any obvious inquiry that might have led the Tribunal to readily available information concerning a critical element of the applicant’s claims, it was not, in the circumstances, such a failure as to affect the Tribunal’s exercise of its fulfilment of its duty to review.

7. For those reasons, I would reject the second argument made at the hearing. Finally, in the applicant’s oral submissions in reply, the applicant made certain submissions about the circumstances pertaining to Nepal, such as those concerning her family and her ability to get employment. Those are matters which, if accepted, might be relevant to the determination of whether the applicant has a well-founded fear of persecution. However, as I have explained above, that is a question that is solely for the Tribunal to determine. And for that reason, it is not a matter that is relevant to the Court’s power.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 28 June 2016