FEDERAL COURT OF AUSTRALIA

SZTPN v Minister for Immigration and Border Protection (No 2) [2015] FCA 96

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is an appeal from the Federal Circuit Court brought by leave granted on 21 November 2014: SZTPN v Minister for Immigration and Border Protection (No 1) [2014] FCA 1255. The basic issue is whether the Refugee Review Tribunal’s decision to refuse the appellant a protection visa is susceptible to challenge on judicial review. The Federal Circuit Court concluded that it was not and dismissed her claims: SZTPN v Minister for Immigration and Border Protection [2014] FCCA 1590. I agree. Accordingly, the appeal should be dismissed with costs.

2    The appellant is a single woman from rural Nepal who is estranged from her husband. It is not in dispute that the position of divorced and separated women in rural Nepal is one of great difficulty.

3    In this case the Refugee Review Tribunal (‘the Tribunal’) accepted that if returned to rural Nepal the appellant would be stigmatised as a single woman. This was because in rural Nepalese society divorced women were often the subject of harassment by predatory males and were shunned by general society. The appellant was separated from her husband rather than divorced, but it was accepted that the position of women in that situation was largely the same.

4    Despite accepting the difficulties the appellant would face in rural Nepal as a single woman, the Tribunal declined to grant her a visa. This was because it also concluded that the appellant could relocate to Kathmandu where the position of women was much better. Consequently, whilst she belonged to a group which was persecuted for a Convention reason, her entitlement to a protection visa was defeated by the internal relocation principle: Minister for Immigration and Border Protection v SZSCA (2014) 314 ALR 514 at 518 [21].

5    The appellant now claims that there was no evidence to support the Tribunal’s conclusions about the status of women in Kathmandu and, if there was any such evidence, the material which the Tribunal relied upon to reach that conclusion involved it in irrational or unreasonable reasoning.

6    These arguments were not pursued in the Court below. Because I do not consider that they are made out this procedural difficulty can be put to one side.

7    There were four passages dealing with the position of divorced women in Nepal in the Tribunal’s reasons which are pertinent for present purposes. These are [36], [37], [51] and [53]. They are as follows:

‘36.    I discussed with her evidence that some women who divorce in Nepal experience social stigma1, but that this was no longer the norm in Kathmandu.2 3 She there [sic] were no guarantees in Kathmandu, and that for women their only “weapon” was men. For her Kathmandu was a new place and people would comment that she had no husband.

37.    In a discussion relevant to the issue of relocation within Nepal, I told her that she appeared to be an independent and resourceful woman, and had had [sic] lived abroad for several years in an unfamiliar country. She also had friends who had helped her in the past in Nepal. Her close female friend had many contacts in Kathmandu, including relatives with whom the applicant had previously stayed for several weeks. Under those circumstances it seemed reasonable for her to relocate to Kathmandu or some other part of Nepal where she would not face any serious or significant harm. In response the applicant confirmed that her friend had cousins in Kathmandu, although they were not the applicant’s friends and they might not look favourably on her.

…

51.    However there is evidence that over the last decade divorce rates have tripled in Kathmandu, where the culture has most “westernized” – where people casually date before marriage, people are financially stable and well-educated, women have distinct careers and the taboos of divorce are gradually unwinding. The same source also notes that almost everywhere else in Nepal tradition conservative culture still dominates, and being a divorced woman remains highly stigmatised.5

…

53.    However, I consider it would be reasonable for the applicant to relocate within Nepal to an urban area such as Kathmandu, and that if she were to do so the chance would be remote that she would be persecuted for the above Convention reason. As I discussed with her she has lived independently abroad for several years, has work experience and has a supportive friend with friends and relatives in Kathmandu, among whom are people who were willing to allow her to stay with them previously. Importantly, there is the evidence, also discussed with her, that divorced women (and by inference women who are separated from their husbands) are no longer unusual in Kathmandu and that it is a city in which many live and work nowadays.’

Footnotes 1, 2 and 3 to [36] are as follows:

‘1.    The Woman’s Foundation of Nepal, undated, “Divorce”, http://www.womenepal.org/index.php?option=com_content&view=article&id=45&Itemid=45, accessed 14 August 2013.

2.    Bensal, A. 2013, “Gender pains, Volume 3: Divorce”, Two years on Top of the World, 19 June, http://sites.miis.edu/amandabensel/tag/divorce/, accessed 14 August 2013

3.    UN Committee on the Elimination of Discrimination Against Women, Concluding observations of the Committee on the Elimination of Discrimination against Women – Nepal, 11 August 2011, CEDAW/C/NPL/CO/4-5, http://www.refworld.org/docid/4eeb45822.html [accessed 14 August 2013]’

8    These three sets of material were placed in evidence before me. It was accepted by the Minister that the reference in the last sentence of [53] to ‘evidence’ is a reference to the materials in [36], that is, the three articles.

9    The UN Committee’s report mentioned in footnote 3 contains no support for the proposition for which the Tribunal cited it, as counsel for the Minister accepted. The position with the article in footnote 2 is more complex. The only passage in it which might arguably support the first sentence in [36] is as follows:

‘It came as a surprise to learn that divorce has been legal in Nepal for over 50 years, but it has taken many decades for Nepali culture to embrace the practice. Over the last decade divorce rates have tripled in Kathmandu, where the culture has most “westernized” – where people casually date before marriage, people are financially stable and well-educated, women have distinct careers and the taboos of divorce are gradually unwinding. But elsewhere in Nepal – pretty much everywhere else – traditional conservative culture still dominates, and being a divorced woman remains highly stigmatized. Thus many wives remain in abusive or tired marriages in order to avoid the stigma and remain financially supported. Why a husband would chose [sic] to illegally take a second wife rather than first request a divorce, I am not sure, because it’s perfectly culturally acceptable for divorced men to remarry – no stigmas attached.’

10    The appellant’s first argument rests upon what can be fairly gleaned from this passage. One reading is that it does not say anything about the absolute position of divorced women in Kathmandu, but is only a relative statement that their position is better than that of divorced women in rural Nepal. There are a number of features of the paragraph which tend to support such a reading:

    the tripling of the divorce rate does not tell one what the divorce rate is, only that it has gone up by a multiple of three;

    the culture in Kathmandu might be the ‘most Westernised’ in Nepal, but that does not tell one how Westernised it actually is;

    the fact that women have distinct careers in Kathmandu says nothing about the position of divorced women; and

    to say that ‘the taboos of divorce are gradually unwinding’ suggests only that they have not been unwound at this stage or, if they have, not very much.

11    If the article were read that way there would be at least two consequences. First, the initial sentence of [36] would be literally unsustainable. Neither the article in footnote 2 nor that in footnote 3 support the contention that divorced women no longer experienced stigma in Kathmandu. Secondly, the last sentence of [53] could not be correct either: neither article showed that divorced women were no longer unusual in Kathmandu or that it was a city in which many divorced women now live and work. All the article showed was that the divorce rate had tripled. Without knowing what level it had tripled from there was no way one could embrace the proposition that divorce had become common. So too, the fact that divorced women lived and worked in Kathmandu did not show that they were not also stigmatised there.

12    The Minister’s response to these arguments was advanced by Mr Reilly of counsel as follows: the first sentence of [36] should not be read too zealously. Paragraph [36] appeared in a section of the Tribunal’s reasons headed ‘The Applicant’s Claim’ and it was evident that the purpose of [36] was not to identify the material with any great precision but merely to indicate that it had been discussed with the appellant.

13    As for the treatment in [53], this had to be read in light of [51] which was an entirely accurate paraphrasing of the article in footnote 2. Further, so Mr Reilly submitted, it was possible to read the passage quoted from the article in a more lenient light than the strict textualist reading suggested above at [10]-[11]. Read in its natural light, Mr Reilly submitted that the article was not only making a claim that the position of divorced women in Kathmandu was better than in the rest of Nepal but was also saying that the position of divorced women in Kathmandu was not too bad. Further, and this was the important step, even if another reading of the quoted passage were open, such as that in [10]-[11] above, it was hardly unreasonable for the Tribunal to read it in the way Mr Reilly suggested.

14    On balance, and despite some initial misgivings about the matter, I have concluded that Mr Reilly’s submission about this should be accepted. Whilst the article is open to a very precise reading in which its claims are taken to be purely a statement about the position of women in Kathmandu relative to the rest of Nepal this is certainly not the only way it can be read. Indeed, it may even be more preferably read in the way for which Mr Reilly contends.

15    It follows that there was material before the Tribunal from which it could reasonably arrive at the conclusion in [53]. The no-evidence argument fails.

16    Nor do I think that the alternate way the notice of appeal puts the matter assists. Whilst it would be irrational to reason from the narrow reading of the article in footnote 2 to the conclusion in [53] this is not what the Tribunal did. It reasoned from a reasonably open and broader reading of the article. Ground 2 fails.

17    Ground 3 was no more than a catchall for grounds 1 and 2 and nothing separate arose under it.

18    The appeal will be dismissed with costs.

Associate:

Dated:    20 February 2015