SZWCK v Minister for Immigration and Border Protection
[2016] FCA 27
•2 February 2016
FEDERAL COURT OF AUSTRALIA
SZWCK v Minister for Immigration and Border Protection [2016] FCA 27
Appeal from: SZWCK & Anor v Minister for Immigration & Anor [2015] FCCA 1810 File number: NSD 737 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 appellants satisfied s 36 of the Migration Act 1958 (Cth) – no error in decision of primary Judge or Tribunal – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 36, 36(2) Cases cited: SZLAI v Minister for Immigration and Citizenship [2008] HCASL 456 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: 32 Counsel for the First and Second Appellants: The First Appellant appeared on behalf of the Second Appellant with the assistance of an interpreter Solicitor for the First and Second Respondents: Ms F Tann of the Australian Government Solicitor ORDERS
NSD 737 of 2015 BETWEEN: SZWCK
First Appellant
SZWCL
Second Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
COLLIER J
DATE OF ORDER:
25 AUGUST 2015
THE COURT ORDERS THAT:
The appeal be dismissed with costs against the first appellant.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLLIER J:
Before the Court is a Notice of Appeal filed on 25 June 2015 in respect of the decision of the Federal Circuit Court in SZWCK v Minister for Immigration [2015] FCCA 1810. In that case, the primary Judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal) in which the Tribunal found that the appellants did not satisfy the criteria for protection visas set out in s 36 of the Migration Act 1958 (Cth) (the Migration Act).
Before turning to the grounds of appeal it is useful to set out the background facts.
Background
The first appellant is a Nepalese Hindu woman, aged 30, who arrived in Australia on 22 October 2007, as a dependent on her ex-husband’s student visa. At some point, the first appellant’s relationship with her ex-husband broke down. They separated. The first appellant then commenced a relationship with another man, also a citizen of Nepal, to whom she became pregnant (Person X). The first appellant gave birth to a child on 4 April 2012. That child is the second appellant in these proceedings. It appears that the first appellant’s relationship with Person X has also broken down, and she is now caring for her child alone. The first appellant’s divorce from her ex-husband was finalised in May 2014.
On 2 September 2013, the appellants applied for a Protection (Class XA) visa with the assistance of a migration agent. The contents of the application was summarised by the primary Judge in the following terms:
[2]… 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 Minister for Immigration and Border Protection (the Minister) refused the first and second appellant’s applications on the basis that the appellant’s did not satisfy s 36(2) of the Migration Act, because there were no substantial grounds to believe that the appellant’s would suffer serious harm should they return to Nepal.
On 12 December 2014, following the filing of an application for review of the Minister’s decision, the appellants appeared before the Tribunal. The appellants were represented by registered migration agents.
Decision of the Tribunal
In its decision of 18 January 2015, the Tribunal accepted that the first appellant was Nepalese, of an elite caste in Nepal, had married in Nepal and arrived in Australia as a dependent of her husband, and was now divorced. Nonetheless the Tribunal held concerns about the balance of the first appellant’s claims. In summary, the Tribunal noted:
·The first appellant provided no evidence to support the claim that she would be unable to practice her Hindu faith in Nepal in much the same way that she described practicing it in Australia, namely by occasionally attending a Hindu temple and by praying and making offerings to Hindu Gods in her home.
·The Tribunal was not satisfied that unkind words which people in Nepal might make to her amounted to serious or significant harm as contemplated by the Refugee Convention.
·The evidence of the first appellant did not suggest that she was estranged from her family or that she had lost her family’s support.
·Cumulatively, the Tribunal’s concerns in respect of the appellants’ evidence meant that the Tribunal experienced significant doubt in respect of the reliability and truth of central aspects of the claims and evidence advanced by the appellants. In particular:
○The first appellant claimed that her fears formed when, around eight months after the birth of her child, she read media reports which suggested that she may face mistreatment and/or discrimination in Hindu society in Nepal as a single woman who has had a child from an extra-marital relationship. The Tribunal considered this claim unconvincing in the context of the first appellant’s religious, cultural and educational background.
○The Tribunal was not satisfied that the first appellant had any valid reason to delay seeking Australia’s protection for around 17 months after the birth of her child, and over two years after she claims to have become aware that she was pregnant with a child from an extra-marital relationship.
○The Tribunal discussed with the first appellant independent information suggesting that Kathmandu was more tolerant, diverse and open-minded than in rural areas. The Tribunal also raised with the first appellant information concerning the existence of non-government organisations in Nepal which existed to assist single mothers and children born out of wedlock. The first appellant was dismissive of this information, however the Tribunal considered that the first appellant’s views were based on nothing other than her own insistence and a demonstrated absence of any genuine enquiries being made by her into what, if any, services would be available in Nepal.
○The Tribunal considered that the evidence given by the first appellant concerning her relationship with her ex-husband, and the date of her separation from him, was very inconsistent. This inconsistency was compounded by records of the Department of Immigration indicating that the first appellant was nominated as a dependent spouse by her ex-husband on various visa-related documents at various times after she claimed to have separated from him. In the Tribunal’s view such inconsistency casts significant doubt on the truth of the claims made regarding the appellants’ circumstances and fears in Nepal and the truth and nature of the first appellants’ claimed relationships with her ex-husband and Person X.
○Evidence of the first appellant concerning her relationship with Person X, from whom she was estranged, was inconsistent. The Tribunal noted that, although the first appellant claimed that she had a relationship with Person X, she appeared to know little about Person X. So, for example, she did not know the date of birth or age of Person X, or whether he had siblings. The Tribunal also noted that although the first appellant gave evidence that Person X abandoned her when she informed him that she intended to keep the child, there is evidence that suggests that Person X began living at the address given by the first appellant at about the time the second appellant was born.
At [36] of its decision the Tribunal said:
On the totality of the evidence advanced the Tribunal cannot be and is not satisfied of the most fundamental of the first applicants’ claimed circumstances. The Tribunal is not satisfied that: the first applicant is no longer in a relationship with the father of the second applicant; the applicants’ have been abandoned by the father of the second applicant; the applicants do not know the whereabouts of the second applicant’s father; the applicants have no contact with the father of the second applicant; that the second applicant is a “child without a father”, the first applicant is or is/will be perceived as being a woman who has had a “child without a father”. Because the Tribunal cannot be satisfied of the ongoing nature of the relationship between the applicants and the father of the second applicant the Tribunal can also not be satisfied that the applicants would be returning home without being accompanied or supported by the second applicant’s father. Accordingly, the Tribunal is not satisfied that the first applicant would be or would be perceived to be a single mother without male protection, or that the second applicant would be viewed as a child born from an extra-marital relationship in Nepal in the reasonably foreseeable future.
(Errors in original.)
The Tribunal also examined independent information regarding the situation of divorced women in Nepal, and noted:
·Independent sources report positive changes in Nepal for divorced women.
·Sources report an increasing number of Nepali women opting for divorce.
·The average age for divorce in cases filed with the Kathmandu District Court was between 20 and 35 years.
·A 2011 article reported that “women had become able to put aside social stigmas relating to the breakdown of marriages”, and urbanization, modernization and female empowerment have “strengthened women to take bold and radical steps which were once considered taboo in Nepali society”.
·2006 legislative changes had allowed women the legal option and means to leave their spouse.
·In 2010, the Asian Development Bank reported that a number of discriminatory provisions in Nepal’s laws had been repealed, entitling women to significant rights, including the right to their husband’s property after divorce.
The Tribunal accepted that, should she return to Nepal, the first appellant could be the subject of disapproval by elements of conservative Hindu society in Nepal. However the Tribunal also found that as an educated woman from the Brahmin caste, the first appellant would benefit from a general elite status within Nepali society. The Tribunal was further satisfied that the first appellant would have some level of family support should she return to Nepal.
The Tribunal also observed that because the first appellant had some tertiary education in Nepal, years of work experience in Australia, fluency in Nepali language and understanding of Nepali society and culture, it considered the first appellant would be able to source employment, income and shelter in Nepal, and support herself and her child.
It followed that the Tribunal did not accept that the first appellant, as a divorced woman with a child, faced a real chance of serious harm as contemplated by the Migration Act should she return to Nepal.
The Tribunal also considered separately the claim of the second appellant. Although the claim made on the second appellant’s behalf was that he was “stateless”, the Tribunal concluded that the second appellant’s country of nationality was Nepal.
The Tribunal considered the submission that, because the birth certificate of the second appellant was silent as to his father, he would face difficulties in Nepal gaining citizenship and receiving other benefits including school admission. The Tribunal observed that it did not have before it any reliable information identifying the mistreatment of Nepalese children born outside Nepal.
The Tribunal noted:
57.Regarding the claim that the second applicant is stateless and has no citizenship, generally statelessness and an absence of citizenship, without more, does not give rise to a real chance of serious or significant harm as contemplated by the relevant law summarized in Appendix 1. A stateless claimant must still demonstrate a well-founded fear of being persecuted for a Convention reason to be owed protection under the Refugees Convention, or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk of significant harm for complementary protection obligations to arise.
In any event, however, the Tribunal found that:
·the second appellant was, under Nepali law, considered to be a Nepali national and not stateless;
·it was not satisfied that the appellants were not in contact with Person X, or that the second appellant will not be able to access the documentation required from Person X to obtain documentation evidencing his Nepali citizenship;
·while it accepted that “the second applicant may experience some ostracism and insults at school in connection with his mother being divorced and/or of [sic] he is suspected of being fathered by someone other than Person A”, it was not satisfied that it would rise to the level of serious or significant harm as contemplated by the relevant law;
·while the first appellant expressed some concern about the second appellant attending school in Nepal, evidence before the Tribunal was that most Nepalese children attended public schools.
Decision of the Federal Circuit Court
The appellants sought review of the decision of the Tribunal in the Federal Circuit Court of Australia, in summary on the following grounds:
1.The Tribunal applied an arbitrary view of the appellants’ circumstances and there was a breach of rules of procedural fairness and natural justice.
2.The Tribunal failed to address and evaluate all the material fairly in the appellants’ case and had a propensity to adopt illogical or unbalanced reasons.
3.The Tribunal was incorrect in its conclusions surrounding the second appellant and its findings were irrational or illogical.
4.The Tribunal ignored country information pertaining to conservative mindset groups and predatory males in Nepal.
5.The Tribunal unreasonably relied upon evidence and applied the wrong test, which was impulsive.
The primary Judge dismissed the application in full, for the following reasons.
His Honour dismissed ground 1 on the basis that the Tribunal’s reasons were given in detailed analysis over 22 pages in which it carefully analysed the appellants’ claims. His Honour concluded that it could not be said, on any view, that the Tribunal’s decision was arbitrary or unreasoned. It followed that it could not be said that there had been a breach of the rules of procedural unfairness or nature justice.
Ground 2 was also dismissed, as the primary Judge held that the appellants’ real complaint was that the Tribunal did not accept the appellants’ evidence. That in itself did not give rise to jurisdictional error.
His Honour held, in respect of ground 3, that the Tribunal had made every effort to assess the appellants’ claims on the basis of the material before it and that its reasons were logical. Accordingly, that ground could not be made.
His Honour held that ground 4 could not be made out because the Tribunal did consider, in detail, the alleged mindset of the conservative people and predatory males in Nepal at length in its decision.
Ground 5 was also dismissed as his Honour held that it was a repetition of ground 1, and it was clear that the decision of the Tribunal was not impulsive.
The first appellant also made oral submissions at the hearing before the primary Judge, regarding the Tribunal’s way of conducting itself and its decision. However, his Honour held that these submissions were at such a high level of generality that it was difficult to see how they raised any jurisdictional error.
The first appellant claimed that the Tribunal was rude and arrogant and that it did not allow her to put additional information. His Honour acknowledged that there was no copy of the transcript of the Tribunal proceedings before him. However, having regard to the Tribunal’s decision, his Honour held that it was apparent that the Tribunal had had regard to all the material before it, including the first appellant’s oral submissions at the hearing.
Appeal
In the Notice of Appeal filed on 25 June 2015, the appellants made the following claims:
Grounds of Appeal
1.The Federal Circuit Court failed or ignored to discern that the Tribunal made a jurisdictional error in my case. I contend that the 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.
2.I contend that the Tribunal Member’s conclusions failed to address and evaluate all the material fairly in my case. In the context of the Tribunal Member’s reasoning for rejecting my claims that its failure genuinely to assess the evidence favourable to me and a propensity to adopt illogical or unbalanced reasons.
3.I contend that the Tribunal Member is incorrect in concluding that the Tribunal’s failure to deal with my child’s circumstances and the Tribunal’s approach to its assessment of the reliability of my evidence did indicate a lack of good faith on its part.
4.I contend that the Tribunal Member ignored to consider whether conservative mindset grounds and predatory males would pose a serious harm to me if I were to return to Nepal as a single woman with a child given the fact that conservative tribal mindset groups dominates the society everywhere in Nepal.
5.It is contended that the evidence that the Tribunal Member relied upon is unreasonable and the only inference was that the Member applied the wrong test or was not in reality satisfied in respect to the correct test. I argue that I am a victim of the Tribunal Member impulsive and incompetent decision.
(Errors in original.)
The appellant seeks the following orders:
1. That the appeal be allowed.
2.The orders made by Federal Circuit Court Judge Smith on 04 June 2015 be set aside in lieu thereof it be ordered that the application be dismissed.
3.The first Respondent pay the appellant’s costs of the appeal and of the application before Judge Smith.
Consideration
At the hearing the first appellant appeared in person with the aid of an interpreter. The Minister was legally represented.
The appellants provided no written submissions to the Court, however the first appellant made oral submissions. In summary, she submitted:
·the Tribunal misunderstood her at the hearing, possibly because of language problems. The first appellant only realised this misunderstanding after the hearing;
·the Tribunal failed to listen to her;
·the first appellant is ready to obtain proof of her assertions;
·the first appellant did not realise that the Tribunal doubted her credibility;
·the first appellant did not understand why the Tribunal did not believe her evidence concerning, for example, her divorce, when she had provided evidence in writing to them.
With minor modifications the grounds of appeal in this Court reflect the grounds of review in the Court below.
Notwithstanding the issues raised by the appellants I am unable to identify any error in either the decision of the primary Judge or the Tribunal. In particular:
·I agree with the view of the primary Judge that the Tribunal did not take an arbitrary view of the appellants’ circumstances, or that there had been a breach of the rules of procedural fairness and natural justice. Indeed, as the primary Judge observed, the decision of the Tribunal was lengthy, detailed, measured and considered.
·I do not accept that the Tribunal failed to address and evaluate all relevant material before it. Indeed it is clear that the Tribunal gave detailed and thoughtful consideration to all of the appellants’ material. Rather, it seems that an underlying concern of the appellants is referable to a failure of the appellants to put on material to which the Tribunal could refer. This is not a defect which can be attributed to the Tribunal.
·I am not satisfied that the decision of the Tribunal evinced any lack of good faith on the part of the Tribunal.
·I am not satisfied that the Tribunal ignored the first appellant’s claim that she could be subject to serious harm in Nepal because she is a single woman with a child. The Tribunal gave this issue considerable attention, and concluded that the evidence which was before it indicated that the appellants would not be subjected to serious harm. While I am somewhat troubled at the prospect of the second appellant being the subject of unquantified social ostracism, as a general proposition the authorities indicate that this in itself does not constitute “serious harm” within the meaning of the Migration Act (see, for example, comments of Kirby and Heydon JJ in SZLAI v Minister for Immigration and Citizenship [2008] HCASL 456 at [4]-[7]).
·I am not satisfied that the Tribunal relied on unreasonable evidence or that the Tribunal applied a wrong test.
In the circumstances the appropriate order is to dismiss the appeal with costs.
I certify that the preceding thirty-two (32) 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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