SZWCK v Minister for Immigration
[2015] FCCA 1810
•4 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZWCK & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1810 |
| Catchwords: MIGRATION – Protection visa – refusal – review of decision of Refugee Review Tribunal – allegation that the Tribunal failed to afford the applicants natural justice or procedural fairness – allegation that Tribunal’s decision was irrational or illogical and failed to consider claims – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 425 |
| First Applicant: | SZWCK |
| Second Applicant: | SZWCL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 345 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 First Applicant appeared in person.
| Solicitor for the Respondents: | Ms F. Taah, Australian Government Solicitor |
ORDERS
The application be dismissed.
The first applicant pay the first respondent’s costs fixed in the amount of $4,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 345 of 2015
| SZWCK |
Applicant
| SZWCL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Ex Tempore & Revised)
Background
The first applicant (“applicant”) is a citizen of Nepal who arrived in Australia on 22 October 2007 as a dependent on her husband who held a Student subclass 572 visa. At some point her relationship with her husband broke down and in April 2012 she gave birth to a child to another person who is also a citizen of Nepal. That child is the second applicant in these proceedings.
On 2 September 2013, the applicants applied for a protection visa. The basis for that application was set out in a statement by the applicant. Essentially, it was that because she was divorced from her husband and was a single mother and, given the nature of Nepalese society, she would be regarded as a pariah and her child as an abomination and that her child would suffer by being called bad names. She would not be able to practice her Hindu religion and had lost the support of her family. She also claimed that she would suffer as a result of the rise in violence against women in Nepal and in particular, against women of similar circumstances to her. It was also claimed that the second applicant, as an illegitimate child, would, first of all, be stateless and secondly, would be discriminated against for belonging to a particular social group of Nepalese children born abroad.
On 2 April 2014, a delegate of the first respondent (“Minister”) decided to refuse to grant the applicants’ visas and the applicants applied to the second respondent (“Tribunal”) for review of that decision.
The applicants were represented before the Tribunal, as they had been before the Department, by registered migration agents. Those agents assisted the applicants, amongst other things, by presenting submissions to the Tribunal. Both applicants appeared before the Tribunal at a hearing held on 12 December 2014, although, for obvious reasons, only the first applicant gave evidence. The Tribunal handed down its decision a little over a month later on 18 January 2015.
The Tribunal’s decision
The Tribunal accepted that the applicant was Nepalese, of an elite caste in Nepal and that she had married there and arrived in Australia as a dependent of her husband. It accepted that she was divorced from her husband in May 2014. However, it held a number of concerns about the balance of her claims and gave reasons for those concerns. Amongst those concerns was that the applicant had provided no evidence to support her claim that she would be unable to practice her Hindu faith in Nepal. While it accepted that the applicant might suffer unkind words, which might prove a disincentive to attend certain rituals, it found that those circumstances did not amount to serious or significant harm.
In relation to the applicant’s family, the Tribunal did not accept that the evidence suggested that she was estranged from her family or that she had lost their support. Indeed, it said she gave no evidence that any of her family members had wished her harm in any way. It then outlined, in fairly close detail, a number of further concerns, including concerns relating to the relationship with her ex-husband and with the person that she said was the father of her child. In relation to the applicant’s ex-husband, one of the matters of concern was that the ex-husband had included the applicant as his dependant spouse in a number of visa applications, indicating that she was still his spouse at a time after the applicant claimed that they had been separated.
In respect of the second applicant’s father, the Tribunal noted that the applicant’s evidence about the address at which she had lived with this person was inconsistent with evidence that that person had lived at that address at a different time. On the basis of those concerns and its review of the totality of the evidence, the Tribunal concluded that it was not satisfied of the most fundamental of the first applicants’ claimed circumstances. Most importantly, it did not accept that the first applicant was no longer in a relationship with the father of the second applicant, that the second applicant had been abandoned by the father and that the applicant did not know of his whereabouts.
For that reason, the Tribunal was not satisfied that the applicant would return to Nepal as a single mother without male protection or that the second applicant would go to Nepal and be seen as a child born from an extramarital relationship.
The Tribunal then turned to consider the applicant’s circumstances insofar as it had accepted them. In respect of the claims relating to the applicant being a divorced woman, it had regard to independent sources of information that it found showed that there had been positive changes in Nepal for divorced women. While it accepted that the applicant may be subject to gossip, rumours and disapproval of elements of conservative Hindu society in Nepal, it did not accept that she would be subject to any serious or significant harm. For those reasons, having considered the claims singularly and cumulatively, the Tribunal concluded that there was no real risk that the applicant would face serious or significant harm as contemplated by s.36 of the Migration Act 1958 (“Act”) and so did not satisfy the criteria for the grant of a protection visa.
The Tribunal then turned to consider the second applicant. It considered the claim that the second applicant would be stateless. On the basis of the evidence of the Nepali Citizenship Act 2006, to the effect that a person born at a time when his or her father or mother is a citizen of Nepal shall be a citizen of Nepal by descent, the Tribunal concluded that the evidence that the second applicant’s father was a citizen of Nepal meant that the second applicant was a Nepali national by birth. The Tribunal considered the fact that the father’s identity did not appear on the birth certificate of the second applicant but did not consider that that would preclude recognition under the Nepali Citizenship Act 2006. For those reasons, the Tribunal considered the second applicant’s claims as against Nepal as the child’s country of nationality.
The Tribunal first dealt with the allegation concerning difficulties in obtaining citizenship documentation but found that that was not supported by any independent sources presented to it or located by it . Further, the Tribunal found that it had no reliable information identifying Nepalese children born outside Nepal as being mistreated for that reason. It turned generally, then, to the situation of the child’s return and found that while it accepted that the child might experience ostracism and insults at school in connection with his mother being divorced and the child’s father not being the husband of the applicant, such circumstances did not amount to serious or significant harm.
The Tribunal considered the claim that the second applicant would be denied education but after surveying the relevant country information, concluded that the second applicant would not be denied access to basic services such as education for any of the reasons advanced. For those reasons, together with the reasons previously given, the Tribunal found that the second applicant had not satisfied the criteria for the grant of the visa.
Consideration
The applicant relied on the grounds in an amended application, although she made submissions at the hearing today which did not have any relevance to those grounds.
Ground 1
I will deal first with the grounds in the amended application. The first ground is that:
(1)…[T]he Tribunal Member heavily applied its arbitrary view on the evaluation of my circumstances and I believe there is a breach of procedural fairness and natural justice.
In the context of judicial review, reference to something that is arbitrary is something that does not have a logical basis, for instance, a decision that is made on the flip of a coin. The decision of the Tribunal in this case does not have that quality. Its reasons are given in detailed analysis over 22 pages, in which it carefully analysed each of the applicant’s claims and the evidence put forward in support of it. It cannot be said, on any view, that the Tribunal’s decision was arbitrary or unreasoned.
The allegation of breach of procedural fairness and natural justice appears to be connected to arbitrariness and therefore the first ground is rejected for the same reasons. I will come back to an allegation of unfairness made at the hearing.
Ground 2
The second ground in the amended application is that the Tribunal failed to address and evaluate all the material fairly and that its reasons for rejecting the claims, as well as its failure to genuinely assess the evidence favourable to the applicants, showed a propensity to adopt illogical or unbalanced reasons.
As I have already explained, contrary to the applicant’s argument, the Tribunal’s decision was a closely detailed and reasoned decision. In light of that, the allegation that the Tribunal failed to evaluate material fairly can properly be seen to be a complaint that the Tribunal did not accept the applicants’ claims. Put in that way, the argument does not raise jurisdictional error. So long as the Tribunal’s decision has a logical basis, it is a matter for the Tribunal whether or not it accepts a person’s claims. For those reasons, the second ground must be rejected.
Ground 3
The third ground is that the Tribunal was incorrect in dealing with the second applicant’s circumstances and that its approach to the assessment of the first applicant’s evidence indicated a lack of good faith. This was a further, repeated allegation that the findings were irrational or illogical. An allegation of lack of good faith is a very serious matter. It suggests that the Tribunal had some ulterior purpose in making its decision and that it did not take any care whatsoever in exercising its statutory power.
Because of the seriousness of the allegation, it is ordinarily is required to be made precisely and based upon real material. This complaint shows neither of those characteristics and could be rejected for that reason alone. However, more importantly, in my view, the Tribunal’s reasons show the contrary of the allegation, namely, that the Tribunal made every effort to assess the applicants’ claims on the basis of the material before it and that its reasons were logical and based upon that material. I reject the third ground.
Ground 4
The fourth ground is that the Tribunal ignored the question of whether the conservative mindset of people in Nepal and predatory males would harm the applicant on return. At [42] to [44] of its reasons, the Tribunal considered that very question and accepted that, to some extent, there would be some adverse reaction to the applicant in her circumstances. However, it concluded that that did not amount to serious or significant harm. For that reason, the factual contention made in ground 4 cannot be made out and the ground is rejected.
Ground 5
Ground 5 is that the evidence relied upon by the Tribunal was so unreasonable that the only inference was that the Tribunal applied the wrong test.
It is further alleged that the first applicant was a victim of an impulsive decision. However this ground is no more than another way of saying the first ground. I reject the assertion that the Tribunal’s decision was unreasonable. Given what I have said above, it is clear that the decision was not an impulsive one. The fifth ground is rejected.
Claims at hearing
At the hearing, the applicant made a number of oral submissions about the Tribunal’s way of conducting itself and its decision. Most of these were at such a high level of generality that it is difficult to see that they raise any jurisdictional error. For instance, the applicant said on a number of occasions that she felt that she could not express her feelings to the Tribunal and that she was not happy with the Tribunal decision. I will leave those arguments aside as they did not raise any basis upon which the Court can exercise its powers.
However, the applicant also said that the Tribunal was rude and arrogant, which she particularised by saying that when she raised some of her first claims, again, in respect of new claims, the Tribunal stopped her, saying that, “You do not need to say that again”. The applicant also said that the Tribunal did not allow her to put additional information until at the end of the hearing and that when asking about her ex-husband the Tribunal bombarded her with several questions at once.
The Court does not have a copy of the transcript of the Tribunal hearing before it and is hampered, to some extent, in dealing with this claim. However, it is sufficient to deal with those arguments as though they were correct.
It may be that the applicant felt that by the Tribunal saying that she need not repeat material that the Tribunal was being rude and arrogant. However, even based upon the applicant’s submissions, it is clear that the Tribunal was not actually preventing her from giving evidence or making submissions about the issues that arose on the review. Simply by preventing the applicant from repeating her previous evidence was not sufficient to constitute a breach of procedural fairness or more particularly, a breach of s.425 of the Act.
In respect of the additional information, on the applicant’s own version of events, the Tribunal allowed her to provide any further material at the end of the hearing.
What is required for the Tribunal is to allow an applicant to give evidence and to make submissions. So long as that opportunity is given at some point during the hearing, there is no unfairness in requiring it to be done in any particular order. Similarly, in respect of bombarding the applicant with questions about the ex-husband, the Tribunal did not deny the applicant procedural fairness. It might be noted that the Tribunal accepted the applicant’s claims about her ex-husband, even though, as I have noted above, there were some inconsistencies in relation to the ex-husband having given the applicant’s name as his spouse in a period after their apparent separation.
For those reasons, even accepting the applicants’ claims, there was no denial of procedural fairness or a breach of s.425 of the Act. None of the grounds raised by the applicant will succeed.
Generally speaking, it is apparent from the Tribunal’s reasons that the Tribunal paid close regard to each of the applicant’s claims and all of the evidence put before it. Although it made certain credibility findings, these were nuanced so that part of the first applicant’s claims were accepted and other parts rejected.
The Tribunal then considered the factual circumstances that it accepted against the country information that was available to it. The Tribunal made findings of fact on those bases, which, in my view, were open on the material before the Tribunal. Further, those findings and the Tribunal’s ultimate conclusions reveal that the Tribunal dealt with the questions required by s.36(2), of the Act.
Conclusion
There is no jurisdictional error in the Tribunal’s decision and the application will be dismissed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 6 July 2015
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