SZWCJ v Minister for Immigration Anor

[2015] FCCA 590

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWCJ v MINISTER FOR IMMIGRATION ANOR [2015] FCCA 590

Catchwords:

MIGRATION – Refugee Review Tribunal – protection (class XA) visa – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.     

Legislation:
Federal Circuit Court Act 1999 s.17A
Federal Circuit Court Rules 2001 r.13.10
Migration Act 1958 ss. s. 36(2)(a), 36(2)(aa), 36(2)(o), 91R(1)(b), 91R(2), 476

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28.

Applicant: SZWCJ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 344 of 2015

Judgment of: Judge Street

Hearing date: 12 March 2015

Date of Last Submission: 12 March 2015

Delivered at: Sydney

Delivered on: 12 March 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent: Ms F. Taah
Australian Government Solicitor

ORDERS

1. The proceedings be summarily dismissed.

2. The Applicant to pay the First Respondent’s costs fixed in the sum of $1367.

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

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 seeking a Constitutional writ in respect of the decision of the Tribunal delivered on 18 January 2015, affirming a decision of the delegate not to grant the applicant a protection visa.  The application, on its return date, identifies the Court may hear and determine all interlocutory or final issues or may give directions for the future conduct of the proceedings.

2. The Court raised with the applicant the concern that the application did not identify any arguable jurisdictional error and that the Court was minded to consider whether the matter should be dealt with under the Court’s summary disposal powers.  The applicant indicated that everything she told the Tribunal was true, and that she would be persecuted as a single woman and that she would be murdered if she returned to Nepal.

3. It was pointed out that these were matters the Tribunal had considered and made findings of fact on, and this was not Court sitting as a Court of general review and was confined to jurisdictional error.  Nothing was advanced by the applicant to identify any jurisdictional error.  I take into account in considering the exercise of the summary dismissal powers in s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001), and the principles and caution in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, and, in particular, [24]-[25] and [59]-[60].

4. The grounds in this application are as follows:

   1. 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. 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.

   3. It is argued that the Refugee Review Tribunal made a jurisdictional error in concluding that I did not have a well- founded fear of persecution that conclusion being irrational and unreasonable.

   4. It is argued that the Tribunal Member failed to deal with my circumstances lawfully.

5. The grounds fail to disclose any arguable jurisdictional error.  It is clear that it was open to the Tribunal to find that the applicant could return to Kathmandu in circumstances where she had been living, working and studying in Kathmandu.  There is no substance in the relation to ground 1. 

6. In relation to ground 2, it is clear that the reasons of the Tribunal reveal a proper basis for the findings that were open on the evidence, and the reasons do not lack an evident and intelligible justification.

7. There is no arguable error disclosed of irrationality or unreasonableness.  It was clearly open to the Tribunal to find that the applicant had no genuine fear of persecution, and the attempted challenge to that finding is an impressible challenge to a finding of fact. Nor is there any substance in the assertion that the Tribunal failed to deal with the matter lawfully. It is clear from the reasons of the Tribunal that it conducted its review in accordance with the statutory scheme and conducted a genuine hearing in respect of which its findings adverse to the applicant were clearly open.

8. It is also clear the Tribunal brought an independent and impartial mind to the determination process required in respect of the review.  In summary, for the above reasons and the finding in the decisions of the Tribunal, the applicant’s application is doomed to failure: 

   1. The applicant is a national of Nepal. She entered Australia [in] March 2009 as a dependent on her then husband’s Student subclass 572 visa which ceased [in] April 2011. She has not held any other substantive visa and departed Australia once while holding that visa between [January] 2010 and [March] 2010. She applied to the Department of Immigration for the Protection visa [in] October 2013. The delegate refused to grant the visa [in] March 2014 and the applicant applied to this Tribunal for review of that decision. On the basis of all the evidence before it, and for the cumulative reasons given below, the Tribunal has concluded that the applicant is not a person in respect of whom Australia has protection obligations and affirms the delegate’s decision.

9. The applicant is a national of Nepal and the country applicant’s claim was assessed against that is the country of reference.  The Tribunal carefully identified the applicant’s claims in relation to her inter-caste relationship with her ex-husband and being a divorced woman and her fears, if she was returned to Nepal.

   7. The Tribunal’s assessment is informed by a range of sources, including: the Department’s file relating to the applicant which includes her Protection visa application form and documents provided in support of that application. The applicant attended a Department interview [in] February 2014 and the Tribunal has listened to the audio recording of that interview.  The Tribunal’s assessment is also informed by its detailed exploration of the applicants’ claims when she appeared in person before it on 9 December 2014. During that appearance the applicant communicated with the Tribunal through an interpreter in the Nepali and English languages. The applicant’s RMA was also present and had additional time after the hearing to provide written material in support of the review application. After the applicant’s appearance additional documentation comprising country information and submissions, a statutory declaration from the applicant sworn on 10 December 2014 and a letter regarding the applicant’s past living arrangements in Australia were submitted. …

10. The Tribunal detailed the applicant’s claims and her history in relation to her marriage and divorce and her relationship with her family and her in-laws.  The Tribunal noted:

    14…. the applicant’s failure to mention that claimed direct threat on her life when discussing her interactions with her in-laws earlier in the hearing, in the context of the cumulative concerns detailed in the Tribunal’s considerations, leaves the Tribunal unconvinced that such a threat has ever been made to the applicant by any member of the applicant’s ex-husband’s family and the Tribunal is not satisfied that she has been threatened by them in any way at any time.

11. The Tribunal noted:

    15. … These factors cumulatively suggest to the Tribunal that neither the applicant’s ex-husband or his family in Nepal have any desire to harm the applicant currently or in the reasonably foreseeable future, and that the applicant’s claimed fear of harm from her ex-husband and his family in Nepal, in the context of their lack of contact and her lack of any reliable information about, make her claimed fears of serious and/or significant harm from them, for any reason, appear entirely speculative.

    16. The Tribunal has also considered the applicant’s claim, set out in her December 2014 statutory declaration, that, if she returns to Nepal she intends to reclaim the money she spent on her husband throughout their marriage, for which her husband and his family will want to harm her. However, she did not identify having even made inquiries as to how she might reclaim that money, nor did she demonstrate making any attempt to reclaim that money, despite having been separated from her ex-husband since around August 2011. The Tribunal is not satisfied on the evidence advanced that the applicant has any intention of reclaiming money she spent on her ex-husband should she return to Nepal, nor is the Tribunal satisfied on the evidence before it that she 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.

12. The Tribunal noted the problematic nature of the applicant’s evidence in relation to her interaction with her own family.  The Tribunal said:

    17. …[H]er oral evidence to the Tribunal did not impress the Tribunal as consistent with those claimed risks of harm from her family or her claimed absence of support from her family. Nor did her oral evidence to the Tribunal regarding her family impress the Tribunal as internally consistent or convincing. … The Tribunal considers the applicant’s evidence regarding her contact with her parents in Nepal to be changing, vague and unconvincing, and does not consider it to support her claim that her family has disowned her or wants to harm her in any way.

13. The Tribunal referred to the working history of the applicant and said:

    18. …This further suggests that neither her family or anyone else from the [Caste 2] caste had or has any interest or intention to harm the applicant in any way for marrying outside the [Caste 2] caste

14. The Tribunal further considered the applicant’s claims and said:

    19. … the Tribunal considers the applicant’s willingness to attend festivals and homes of mutual friends at which her [sibling] may be present, and her demonstrated willingness to approach and converse with [him/her], to not support her claims that her family members have any intention or desire to harm her in any way in Nepal or otherwise.

15. In relation to the applicant having moved from her parents’ hometown to live with her in-laws, the Tribunal was not satisfied that this demonstrates or gives rise to any risk of harm to the applicant in the reasonably foreseeable future.  The Tribunal referred to the country information and said:

    21. … This is particularly relevant as the applicant has given evidence that she has spent many years living, working and/or studying in Kathmandu, Nepal’s biggest urban centre. She has also lived, worked and studied in Australia and in the 5 or so years she has been here she has completed [courses of study]. Her work, study and residential history leads the Tribunal to find that if she were to return to Nepal she would reside in Kathmandu, where the Tribunal accepts attitudes to inter-caste relationships and divorce are less conservative than in rural areas. 

    …

    27. While the Tribunal accepts that single women in Nepal can be vulnerable to such abuses, the Tribunal does not consider their to be a real risk of this arising for the applicant in the context of what the Tribunal accepts of the applicant’s background and circumstances, as detailed above.

    30. Regarding the PSGs presented by the RMA, based on the evidence, considerations, reasoning and findings above, the Tribunal does not accept that the applicant is faces economic hardship or family violence should she return to Nepal. It follows that the Tribunal does not find her to be a member of the PSG characterized by the RMA as “Nepali Single Women facing economic hardship and family violence”.

    31. While the Tribunal accepts that the applicant is, and will be, in the reasonably foreseeable future, a “Nepali Single Woman”, in the context of her education, work experience, family connections, caste and her background and employment prospects more generally, the Tribunal is not satisfied, on the evidence advanced that the applicant faces a real chance of harm rising to the level of serious or significant harm as contemplated by the relevant law in the reasonably foreseeable future.

    32. Regarding the PSG characterized as “Nepali Single Women without protection of a male relative” the Tribunal is not satisfied, on the evidence advanced, that the applicant is not in touch with her family, including her father, in Nepal. The Tribunal finds that, even if the protection and contact between herself and her family in Nepal is not as strong as it was before she married, the Tribunal is satisfied that she remains a supported member of her family that she will be perceived to be part of family network, that perception providing her with added protection in Nepal. The Tribunal finds that, even with limited family support, the applicant has an education, work, travel and general background which demonstrates her to be resourceful and independent, and in the context of what the Tribunal accepts of her cumulative circumstances, the Tribunal is not satisfied that she faces a real chance of serious harm as contemplated by sections 91R(1)(b) and 91R(2) of the Act, or significant harm as contemplated by section 36(2A) of the Act in Nepal in the reasonably foreseeable future for any of the reasons claimed or arising on the evidence.  

    33. 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 [Caste 2] 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.

16. It is in those circumstances the Tribunal held that it was not satisfied that the applicant faces a real chance of serious harm as contemplated by s.91R(1)(b) and 91R(2) of the Act, or significant harm as contemplated by s.36(2)(a) of the Act in Nepal in the reasonably foreseeable future in connection with any of the claims made or arising singularly or cumulatively. 

17. The Tribunal found that the applicant was not a person in respect of whom Australia has protection obligations under the Refugees Convention and did not satisfy the criteria under s.36(2)(a).  The Tribunal was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).  I3t was in those circumstances that the Tribunal affirmed the decision of the delegate.

18. There is no substance in the grounds of the application for the reasons I have identified above. The findings are clearly open and it is clear these proceedings are doomed to failure.  I am clearly satisfied that the proceedings have no reasonable prospect of success.  The proceedings are summarily dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Street.

Associate: 

Date:  19 March 2015