SZWCJ v Minister for Immigration and Border Protection [2016] FCA 1322

FEDERAL COURT OF AUSTRALIA

SZWCJ v Minister for Immigration and Border Protection [2016] FCA 1322 Appeal from: SZWCJ v Minister for Immigration and Border Protection [2016] FCCA 1479

File number(s): NSD 926 of 2016

Judge(s): JAGOT J

Date of judgment: 11 November 2016

Legislation: Migration Act 1958 (Cth) s 424A

Cases cited: SZWCJ v Minister for Immigration and Border Protection [2016] FCCA 1479

Date of hearing: 2 November 2016

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No Catchwords

Number of paragraphs: 9

Counsel for the Appellant: The Appellant appeared in person

Solicitor for the First Respondent: Ms E Warner-Knight of Australian Government Solicitor

Counsel for the Second Respondent: The Second respondent filed a submitting notice

ORDERS NSD 926 of 2016

BETWEEN: SZWCJ Appellant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: JAGOT J DATE OF ORDER: 2 NOVEMBER 2016

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the appeal, as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JAGOT J: 1 The appellant contends that the Federal Circuit Court erred in dismissing her application to set aside the decision of the Refugee Review Tribunal (the Tribunal). The Tribunal affirmed the decision of the first respondent's delegate to refuse to grant to the appellant a protection visa. In SZWCJ v Minister for Immigration and Border Protection [2016] FCCA 1479 the primary judge gave reasons for concluding that the Tribunal had not made any jurisdictional error, with the consequence that the appellant's application for judicial review had to be dismissed. 2 I am satisfied that the primary judge made no error in reaching this conclusion. 3 As the primary judge recorded: 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, for a review of the delegate's decision. On 18 January 2015 the Tribunal affirmed the delegate's decision. … 6. 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 The principal facts underlying the appellant's claims before the Tribunal were that she is a member of the Brahmin caste who married and subsequently divorced a member of a lower caste. The appellant fears that if she returns to Nepal she will be subjected to persecution by her family and society generally, as a woman who entered into an inter-caste marriage against the cultural norms of Nepalese society and the wishes of her family, and who is now divorced and without support from her husband and his family. The appellant also claimed that her ex-husband's family would kill her if she returned to Nepal because of difficulties about the breakdown of her marriage and fear that she might attempt to reclaim from her ex-husband's family money that she provided during the relationship. 5 The Tribunal considered these claims and concluded that it was not satisfied that the appellant faced a real chance of serious or significant harm if she returned to Nepal. 6 The primary judge reviewed the Tribunal's reasons (as have I) and concluded that no jurisdictional error, as contended for by the appellant or otherwise, was apparent. I have reached the same conclusion. 7 The principal issue before the primary judge was the appellant's claim of error by the Tribunal in concluding that she could re-locate to Kathmandu. In rejecting the appellant's first two grounds of review, the primary judge at [29]-[34] identified that the Tribunal had not found that the appellant could re-locate to Kathmandu. Rather, on the material before it the Tribunal was satisfied that if she returned to Nepal, the appellant would locate herself in Kathmandu. 8 During the hearing I raised with the parties the question whether the Tribunal might have been required to put the appellant on notice that it might find that if she returned to Nepal she would most likely live in Kathmandu. The first respondent, rightly in my view, submitted that there could be no such obligation because the material on which the Tribunal relied as the foundation for that finding was provided by the appellant. Section 424A(1) of the Migration Act 1958 (Cth) (the Act) could not be engaged because it does not apply to information that the applicant gave for the purpose of the application for review or that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department (ss 424A(3)(b) and (ba) of the Act). The fact that the applicant had lived, worked and studied in Kathmandu was apparent from her application for a protection visa, and was evidence that the appellant gave to the Tribunal during the hearing to support her claims. The inference that the Tribunal drew, that if she returned to Nepal it would be to Kathmandu, was obvious on the appellant's claims. The appellant's complaint is that the Tribunal should have accepted that she feared serious harm in Nepal as a whole, including Kathmandu, because of her membership of the social groups identified. These were the claims the appellant repeated in her submissions to me, but the difficulty with them is that it was for the Tribunal alone to assess the factual foundation and risk, if any, to which the appellant might be subject if she were to return to Nepal, and no legal error of any kind is apparent in the manner in which the Tribunal carried out its task in this regard. 9 The five grounds of appeal on which the appellant relied before me and the submission she made in support do not disclose any matter which indicates any legal error by the Tribunal, nor by the primary judge. The Tribunal weighed up all of the material and did not accept that the appellant would be exposed to any real risk of harm if she returned to Nepal, including because if she did so the appellant would return to Kathmandu. As a result, the appeal must be dismissed. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.