FEDERAL COURT OF AUSTRALIA

SZUIZ v Minister for Immigration and Border Protection [2015] FCA 1297

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent, to be taxed if not agreed.

3.    The name of the second respondent be amended to the Administrative Appeals Tribunal.

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

REASONS FOR JUDGMENT

1    The appellant is a female citizen of Nepal who on 7 May 2012 applied for a protection (class XA) visa under the Migration Act 1958 (Cth).

2    The appellant’s claims for protection largely arise from abuse she said was perpetrated against her by her ex-husband, and her divorce from him. She claims to fear continuing harm from her ex-husband. She further claims that her reputation will be damaged and she will be treated differently within the community in Nepal as a Nepali single woman or divorced woman who has transgressed Nepali traditional values, a Nepali single woman without the protection of a male relative, or a Nepali single woman facing economic hardship, if she were to return to Nepal. In addition, the appellant claims her family will blame her for permitting her daughter to marry an Australian, which would be viewed as shameful behaviour, should she return.

3    In her protection visa application, the appellant claimed she was “not treated well by members and relatives of [her] former husband and [she] was also in fear of being raped and assaulted”. She further claimed she feared she would suffer physical, sexual and emotional abuse if she went back to Nepal, and said that “friends, relatives and members of my former husband[‘s family]” may harm or mistreat her if she went back. The appellant also said she would be discriminated against by “conservative people”.

4    Then, in a statement provided in support of her protection visa application, dated 29 August 2012, the appellant provided further details of the domestic violence she claimed she experienced during her marriage to her ex-husband. She said that, even after her divorce on 29 March 2004 (effected by way of a traditional divorce ceremony), her husband continued to sexually and verbally abuse her, and she left Nepal to escape this abuse.

5    The appellant’s statement noted that, following her divorce, her parents and relatives would see her as an outcast and would not protect her from her former husband or “other enemies”, however the appellant did not explicitly claim to fear or have suffered abuse by relatives of her ex-husband.

6    The appellant did state, however, that she would be blamed for her daughter’s marriage to an Australian man, which would not be accepted by her ex-husband and relatives, including the appellant’s parents. She also claimed to fear that her husband may inflict more harm against her for allowing her daughter to marry an Australian.

7    The appellant claimed the authorities in Nepal would not protect her from her ex-husband’s abuse. She said that the police would not investigate a formal complaint about her ex-husband’s behaviour because it is regarded as a private matter. She further claimed her ex-husband is a wealthy businessman with connections to the police force, and that he could bribe the police to prevent them taking action. The appellant said in July 2003 her ex-husband burnt her with a hot iron and threatened to kill her, and the police did not take her complaint about this violent attack seriously.

8    Further, the appellant claimed that if she moved to another part of Nepal, her ex-husband would locate her and continue to sexually abuse her. The appellant’s solicitors also made submissions in support of her protection visa application to the effect that ongoing human rights problems and political instability in Nepal mean the appellant does not have any meaningful options for relocating within Nepal or obtaining effective protection from Nepalese authorities. The appellant’s solicitors referred to country information deposing to the violation of women’s rights, gender inequality, human rights abuses and the ineffectiveness of the justice system in Nepal. In particular, the appellant’s solicitors referred to the social ostracism and intolerance of single mothers in Nepal, and submitted that the appellant may find it difficult to support herself and may experience physical and sexual violence.

9    The appellant first arrived in Australia in 2008 on a student dependent visa. The appellant claims this visa was obtained as a result of a false marriage to the holder of a student visa.

10    On 27 November 2012, a delegate of the then Minister for Immigration and Citizenship refused to grant the appellant a protection visa.

11    The appellant sought review of this decision before the Refugee Review Tribunal (now the Administrative Appeals Tribunal), but the Tribunal affirmed the delegate’s decision on 22 April 2014.

12    The Federal Circuit Court of Australia gave judgment on 27 February 2015, dismissing the appellant’s application for judicial review of the Tribunal’s decision. See SZUIZ v Minister for Immigration & Anor [2015] FCCA 456.

13    The appellant now appeals from the Federal Circuit Court’s decision by a notice of appeal dated 20 March 2015.

DELEGATE’s DECISIOn

14    The delegate considered that the abuse the appellant said she feared from her ex-husband was serious harm and systemic and discriminatory conduct amounting to persecution. However, the delegate did not consider that the appellant’s fears that people in Nepal would “talk about her because society is conservative” and “assume negative things about her”, if she lived well as a divorced women with two children, amounted to a fear of serious harm.

15    The delegate then considered whether the appellant’s fear of serious harm by her ex-husband was well-founded. The delegate considered the appellant’s testimony in relation to her husband’s behaviour to be unclear and unconvincing, noting it was inconsistent that the appellant was able to divorce her husband while claiming that he controlled her life and threatened to kill her if she left him. The delegate also found it difficult to believe that the appellant did not seek protection from her family if she suffered the treatment she claimed, although the appellant claimed her parents did not believe her.

16    When asked by the delegate why she did not move further away from her ex-husband following her divorce, when he continued to sexually abuse her at her sister’s house, the appellant explained that she would have no support, people might talk about her and if her ex-husband killed her it would be easy for people to find out who killed her if she lived with her sister. The delegate doubted this explanation and the credibility of the appellant’s claim her ex-husband continued to abuse her following their divorce. Further, the delegate doubted the appellant’s evidence she was burnt by her ex-husband in July 2003, noting inconsistencies in the appellant’s written and verbal accounts of reporting this incident to the police.

17    The delegate considered that the appellant’s beliefs about her ex-husband’s current opinions of her were simply speculation. The delegate was not convinced that the appellant’s ex-husband continued to abuse her after their divorce, nor that continued abuse was likely should the appellant return to Nepal.

18    The delegate challenged the appellant as to why her evidence should be accepted if she had relied on false marriage documents in the past. The delegate considered it likely the appellant’s second, supposedly false marriage had in fact broken down in Australia and she had fabricated her testimony because she wished to stay in Australia with her daughter.

TRIBUNAL’s decision

19    Following a hearing in the Tribunal on 9 October 2013, the appellant’s solicitors provided further submissions dated 16 October 2013 to the Tribunal. Based on country information and news reports, the appellant’s solicitors submitted that women, particularly single women without family support, who are considered to be morally corrupt, continue to face serious harm in Nepalese “male chauvinist society”. It was further contended that single women without male protection face sexual harassment and abuse, and that the incidence of domestic violence against women in Nepal is high but frequently unreported.

20    The Tribunal accepted that the appellant’s ex-husband was abusive and, for that reason, the marriage broke down in 2004. However, the Tribunal expressed doubts about the appellant’s claim she was assaulted by her ex-husband following her divorce until her departure from Nepal in late 2008.

21    The Tribunal pointed to the appellant’s evidence that she had been untruthful about certain aspects of her life when applying to enter Australia in the past, for example saying she was in business when she applied for a Nepalese passport, and paying her “false husband” to marry her in order to gain a visa. The Tribunal further said the appellant’s evidence regarding where she was living between her divorce and departure for Australia was vague and inconsistent, and questioned her claim that she was frequently attacked by her ex-husband while staying with her sister during this period, given her sister was frequently present at her home.

22    However, the Tribunal could not confidently determine the appellant was not being assaulted by her ex-husband up to the time of her departure for Australia in 2008, thus proceeded to consider whether there was a real chance she might be harmed by him in the reasonably foreseeable future.

23    The Tribunal found that it had been five and a half years since the appellant last had contact with her ex-husband and whether he remained motivated to harm her or in a position to do so was not known to the appellant. The Tribunal was not satisfied there was a real chance the appellant’s ex-husband would harm her in the reasonably foreseeable future.

24    The Tribunal further considered the appellant’s claims that she would be perceived differently in the community due to her status as a divorced woman. The Tribunal accepted the appellant’s evidence that between 2004 and 2008 people in the community talked to her differently and perceived her as “not a good lady” or a “bad lady”. Given the appellant did not provide evidence of harassment or verbal or physical abuse, the Tribunal found the treatment described did not constitute persecution. Further, the Tribunal found that divorced women are treated more tolerantly in Kathmandu than in other parts of Nepal because divorce is more common in the city. The Tribunal therefore considered there was not a real chance the appellant would be persecuted because of her membership of a particular social group in Nepal, being divorced women, single women or single women without the protection of a male relative.

25    The Tribunal did not consider “single women facing economic hardship” to comprise a particular social group, as there was not something apart from the alleged persecution which made the group cognisable as a particular social group. In any case, the Tribunal was not satisfied that any economic problems the appellant might face on return to Nepal could be defined as serious harm and systemic and discriminatory conduct.

26    With regard to the appellant’s claims she would be blamed for her daughter’s marriage to an Australian, the Tribunal accepted that family and community members in Nepal would disapprove of such a marriage. However, the Tribunal noted the appellant’s evidence that no one in Nepal knew about the marriage, and found it was remote that the appellant would be harmed in any way as a result of her daughter’s marriage.

27    As a result, the Tribunal found the appellant did not have a well-founded fear of persecution pursuant to s 36(2)(a) of the Act. Nor was the Tribunal satisfied there was a real risk she would suffer significant harm for the purposes of the complementary protection criterion in s 36(2)(aa) of the Act.

JUDICIAL review in the federal circuit court

28    In the Federal Circuit Court, the appellant identified two grounds of judicial review.

29    First, the appellant contended that the Tribunal had misconstrued the “real chance test” and failed to give adequate consideration to the history of violence. The primary judge said the essence of this argument was that there had been a failure to properly apply the “real chance test”, because the Tribunal had not addressed and made appropriate findings on the violence and history of the appellant’s relationship with her ex-husband. His Honour found that the Tribunal made careful findings in relation to the history of the relationship, and took that history into account in applying the “real chance test”. Further, his Honour held that the Tribunal’s finding of fact made in para 55 of the Tribunal’s decision – that the Tribunal was not satisfied there was a real chance the appellant’s ex-husband would harm her in the foreseeable future – was open and reflected a correct application of the “real chance test” on the material before the Tribunal.

30    Secondly, the appellant argued the Tribunal failed to consider an integer of the appellant’s claim, namely that she feared violence from her husband’s relatives. The primary judge noted that while the appellant referred to this fear in her application for a protection visa, neither her statement dated 29 August 2012 nor her solicitors’ submissions referred to her claim that she feared harm from her ex-husband’s relatives. While she referred to “other enemies” in her statement, she did not specify that she had been subjected to abuse by, or feared abuse from, her ex-husband’s relatives.

31    The primary judge therefore found that the appellant’s assertion of fearing violence from her husband’s relatives, being a qualified reference in her application for a protection visa, was not an essential integer of the claim advanced by the appellant when read in light of the appellant’s statement and submissions. His Honour held the essential integers of the claims advanced by the appellant were properly considered and the subject of proper findings open to the Tribunal on the material before it.

32    His Honour dismissed the appellant’s application for judicial review.

appeal to this court

33    The appellant raises three grounds of appeal as follow:

(1)    The Federal Circuit Court erred by failing to find that the Tribunal made a jurisdictional error in making the finding that the Tribunal has addressed and made appropriate findings on the violence and history of her relationship with her first husband. She argues that the Tribunal failed to properly apply the real chance test in her circumstances.

(2)    The Federal Circuit Court erred by failing to find that the Tribunal made a jurisdictional error in making a conclusion that she could live safely in Nepal having regard to the material upon which it relied, that reliance being irrational and/or unreasonable.

(3)    The Federal Circuit Court erred by failing to find that the Tribunal made a jurisdictional error in concluding that she did not have a well-founded fear of persecution, that conclusion being irrational and/or unreasonable.

34    The Minister for Immigration and Border Protection submits that the findings made by the Tribunal were open on the evidence, logical and reasonable. It is submitted the Tribunal considered each of the appellant’s claims for protection, referring to the evidence of the appellant and also independent country information with an open mind. The Tribunal did not reject the possibility of any of the four claims made by the appellant eventuating, but rather held that the claims of asserted persecution did not constitute or rise to the level of “significant harm” required, or were a “remote” possibility.

35    With regard to ground 1, the Minister notes the Tribunal set out the refugee criteria in its decision including the “real chance test” by reference to the relevant authority: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389 (Mason CJ), 398 (Dawson J), 407 (Toohey J) and 429 (McHugh J).

36    Further, in the Minister’s submission, throughout the decision and consideration of the appellant’s claims the Tribunal clearly considered whether there was a “real chance” of the appellant suffering significant harm in the reasonably foreseeable future in respect of all her claims regarding: (1) her status as a divorcee; (2) her ex-husband; (3) her status as a single woman or single woman without male protection, or single woman facing economic hardship; and (4) her daughter’s marriage in Australia.

37    The Minister submits the Tribunal applied the correct test to its consideration of the appellant’s claims, ultimately finding there was: (1) no “real chance” that the appellant would be harmed by her ex-husband in the reasonably foreseeable future; and (2) that any treatment she might suffer by reason of her status as a divorced woman, or as a single woman (without male protection and facing economic hardship), would not amount to “significant harm”; and (3) that there was no “real chance” the appellant would be harmed by anyone because of her daughter’s marriage in Australia. It is submitted there was no jurisdictional error made by the Tribunal in coming to these conclusions, or in the way in which the Tribunal applied the “real chance test” to the appellant’s claims.

38    The appellant’s first ground of review also contends the Tribunal failed to appropriately consider the history of her relationship with her ex-husband. The Minister submits that the Tribunal considered at length the history of family violence detailed by the appellant, yet ultimately found, as a fact, that it was not satisfied that there was a real chance of the appellant’s ex-husband harming the appellant in the reasonably foreseeable future. This factual conclusion, the Minister submits, was open to the Tribunal on the material and evidence it had before it.

39    In this regard, the Minister notes that merits review is not permissible in the Federal Circuit Court under the Act. The Minister submits it is well established that the function of a review court is not to re-hear factual matters: see, for example, SZTRU v Minister for Immigration and Border Protection [2015] FCA 170 at [42]. The review by the court system is to ensure that the Tribunal, which was charged with the responsibility of factually investigating the appellant’s claims, acted according to law: see SZHZT v Minister for Immigration and Citizenship [2007] FCA 1661 at [7].

40    In relation to ground 2 of the appellant’s notice of appeal, the Minister submits the appellant is effectively seeking to challenge a factual finding made by the Tribunal, namely, the finding that there was no “real chance” the appellant would be harmed by her first husband if she returned to Nepal or that she would suffer significant harm by reason of the other three claims referred to in [36] above.

41    The Minister contends this ground of appeal should be rejected, first, because the function of the Federal Circuit Court in applications brought under s 476 of the Act is to consider whether or not the Tribunal carried out its statutory function according to law. As noted above, the Minister submits a review of the merits of the Tribunal’s decision regarding whether or not there was a “real chance” that the appellant may suffer Convention-based harm was not permissible in the Federal Circuit Court. (The Minister refers to the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees.)

42    Secondly, in the Minister’s submission, the Tribunal set out very carefully, and in a detailed fashion, the claims and evidence presented to the Tribunal by the appellant in support of her claim that there was a “real chance” she would be harmed by her ex-husband if she returned to Nepal and on the other bases referred to. The Minister submits the Tribunal’s findings that the appellant did not have a well-founded fear of persecution in Nepal for a Convention reason and that there was no real chance the appellant would be harmed by her ex-husband if she returned to Nepal, for the purposes of complementary protection, were based on findings of fact in relation to the individual claims of harm the appellant submitted she would suffer at the hands of her ex-husband if she were to return to Nepal. The Minister makes the same submission in relation to the Tribunal’s treatment of the other three claims.

43    Thirdly, the Minister submits unreasonableness (or irrationality) is a conclusion which may be applied only to a decision which lacks “an evident and intelligible justification”: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [68] and [76] (Hayne, Kiefel and Bell JJ); [2013] HCA 18; Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513 at [52]; [2015] FCAFC 83. It is contended that all of the factual findings contained in the Tribunal’s decision were findings open on the material and evidence that was before Tribunal, including evidence given to the Tribunal by the appellant and independent country information regarding attitudes in Nepal about women who marry outside their own particular clan group, or caste. In the Minister’s submission, therefore, there is no basis to assert that in coming to its conclusions regarding whether the appellant would suffer harm from her ex-husband if she returned to Nepal the Tribunal was being irrational or unreasonable; and on no view of the Tribunal’s reasons could it be concluded that its decision “lacks an evident and intelligible justification”.

44    The Minister contends ground 3 of the appellant’s notice of appeal contains a similar argument to that contained in ground 2, namely, an argument that the Tribunal committed a jurisdictional error in its conclusion that the appellant did not have a well-founded fear of persecution, that conclusion being irrational or unreasonable.

45    For the three reasons outlined in [41]-[43] above, the Minister submits the Tribunal’s conclusion that the appellant did not have a well-founded fear of being persecuted in Nepal for a Convention-based reason was a finding open to the Tribunal on the material before it. The Minister notes that in this ground, as in the second ground of appeal, the appellant does not specify or particularise why the Tribunal’s decision was irrational or unreasonable, and submits there is no substance in these grounds of appeal.

46    At the hearing of the appeal, the appellant made oral submissions which reflected the content of the three grounds of appeal. She did not file any written submissions.

47    In all the circumstances, the Court accepts the submissions made by the Minister.

48    This is a case where the Tribunal, following the refusal by the delegate of the protection visa application, conducted a hearing, heard from the appellant, and considered country information and other relevant information submitted to the Tribunal on behalf of the appellant in relation to the various claims made by the appellant.

49    The reasons for decision of the Tribunal reflect a careful assessment of the facts and circumstances surrounding the claims made by and on behalf of the appellant.

50    As the Minister reasonably submits, the findings made by the Tribunal in relation to each claim were open on the evidence before it and they were logical and reasonable. Having made those findings there is nothing to suggest or that indicates that the Tribunal failed to properly apply the real chance test in her circumstances.

51    In particular, there is nothing that reasonably indicates that the findings that there was no real chance the appellant would be harmed by her ex-husband in the reasonably foreseeable future, or that any treatment she might suffer by reason of her status as a divorced woman or as a single woman without male protection and facing economic hardship would not amount to “significant harm”, or that the appellant would not be harmed by anyone because of her status or her daughter’s marriage in Australia, were not open to the Tribunal.

52    Contrary to the assertion in ground 1, in my view the Tribunal appropriately considered the history of the appellant’s relationship with her ex-husband and applied the real chance test in her circumstances.

53    There is no basis to conclude the Court below erred in so finding.

54    As to ground 2, as the Minister submits, this invites the Court in effect to make a different factual finding as to whether or not the appellant could live safely in Nepal, having regard to the material that she relied upon. If it were possible, which the Court does not think it is, to say that the Tribunal’s decision lacked an evident and intelligible justification, then it might be said that it was a legally unreasonable decision. But the decision is not of that nature. As stated, the Tribunal carefully considered all relevant claims, factual materials and documentary materials in coming to its decision. The decision may be, and no doubt is, from the appellant’s point of view, a difficult decision for her, but it is legally reasonable. It follows that the Court below did not err in so finding.

55    Similarly, in respect of ground 3, there is no basis in these circumstances for concluding that the Tribunal’s conclusion that the appellant did not have a well-founded fear of persecution upon return to Nepal was irrational or legally unreasonable on the test just described.

56    Again, it follows the Court below did not err in so finding.

57    It follows that in all respects the Federal Circuit Court did not commit any error as alleged in coming to the conclusions that it did.

58    For these reasons the appeal should be dismissed with costs.

COnclusion and orders

59    The Court orders that:

(1)    The appeal be dismissed.

(2)    The appellant pay the costs of the first respondent, to be taxed if not agreed.

(3)    The name of the second respondent be amended to the Administrative Appeals Tribunal.

Associate:

Dated:    23 November 2015