BWD19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 848

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. Ms BWD19 is a citizen of Nepal. She came to Australia after experiencing an abusive marriage and ill-treatment at the hands of her neighbours. She was even accused of being witch. A delegate of the first respondent (the minister) refused her application for a Protection (Class XA) (Subclass 866) visa. The Administrative Appeals Tribunal affirmed that decision on review. The Tribunal accepted Ms BWD19 had experienced abuse in Nepal but concluded she could safely relocate to Kathmandu where she had lived and worked safely for a time before coming to Australia. Ms BWD19 says that decision is affected by material jurisdictional error.
2. The decision is not affected jurisdictional error. The application for judicial review must therefore be dismissed. I explain my reasons for that conclusion below.

1. Ms BWD19 arrived in Australia in 2013. She entered the country as a dependent spouse of a man who held a student visa. She applied for a protection visa in December 2014. A copy of her application is reproduced in exhibit one (the court book) at pp 1ff. Question 53 of that document asked her how she came to leave Nepal. She ticked a box indicating she had left 'illegally', explaining "I left Nepal on a bogus marriage document through the aid of agent". Perhaps unsurprisingly, the individual who was identified as Ms BWD19's spouse informed the minister's department in late December 2014 that the couple were no longer together.
2. A statement dated 7 May 2015 was provided in support of Ms BWD19's protection visa application. The statement is reproduced in the court book at pp 57ff.
3. In that statement, Ms BWD19 said she had previously been married to another man in Nepal between 2008 and 2012. It was an arranged marriage that ended in divorce. There was one child of the marriage who was born in 2009. The child was born with a disability. Ms BWD19 went on to claim:
   • her husband blamed her for their child's disability. After the child was born, he became more physically and verbally abusive. He threatened to kill her. She reported this incident to the police, but they did not take her report seriously;
   • her parents-in-law also blamed her for the child's disability. They urged her to drown the child in a river. They discriminated against her and humiliated her because of the child's disability;
   • she and her son were mistreated by neighbours in their village. The villagers accused the applicant of witchcraft, would beat her, and would blame her if their own family members were sick. She gave a short but lurid account of being forced to eat excrement;
   • she contemplated committing suicide but held on because of her son.
4. The applicant said (court book at p 58):

Having failed to receive help from the village authorities I managed to move to Kathmandu with the assistance of my school friend who took care of me and my son after I left the village.

1. Ms BWD19 does not specify in the statement the precise date on which she left the village and moved to Kathmandu. It is uncontroversial that she lived and worked in Kathmandu until she departed for Australia with the student who pretended to be her husband. She said she was aware that people from her village visited Kathmandu and there was a danger she might run into them. She said she tended to stay inside her friend's house as a result. Ms BWD19 recalled her agent organised a fake marriage document in return for a cash payment. She was able to enter Australia as a dependent in August 2013. She said (court book at p 58):

I cannot return to Nepal because I hold fear of being tortured and killed. I have been stigmatized as a witch. I never receive good treatment in the Nepalese community. I am a victim of domestic and public violence.

1. A delegate of the minister interviewed the applicant before refusing the visa application. The decision record is reproduced in the hearing book at pp 69ff. The delegate found Ms BWD19 was able to live in Kathmandu with her son for more than 12 months, which indicated she was likely to be safe there if she returned to Nepal. While it was accepted she faced a risk of harm if she resided elsewhere in Nepal, a finding that she could safely and reasonably relocate to Kathmandu meant she was unable to meet the criteria in ss 36(2)(a) and (aa) of the Migration Act 1958 (Cth) which governed the grant of a protection visa.
2. Ms BWD19 filed an application for review in the Tribunal on 28 April 2016. She was invited to attend a hearing on 28 March 2019. After she attended the hearing, the Tribunal affirmed the delegate's decision on 5 April 2019.

1. A copy of the Tribunal's decision is reproduced in the court book at pp 170ff. The decision commences with a recitation of the background to the proceedings and a conventional discussion of the relevant law. At [10], the Tribunal frames the question it was required to answer as follows:

The key issue in this case is whether the applicant face a real chance of serious or significant harm in Kathmandu.

1. The Tribunal largely accepted the applicant's claims that she had been mistreated in her home village and accused of witchcraft. The Tribunal referred to the relevant country information report in respect of Nepal that was prepared by the Department of Foreign Affairs and Trade (the DFAT report). The DFAT report confirmed women in Nepal experienced high levels of harassment and discrimination, and allegations of witchcraft were common. The report also said women accused of witchcraft were subject to mistreatment. The Tribunal went on to find (at [38]):

The Tribunal accepts the DFAT information in this decision as to the mistreatment of women based on allegedly practising witchcraft. It is consistent with independent information that the applicant could have been accused of being a witch by her husband and villagers in [the village where she lived once married] based on having a disabled child. The applicant gave convincing evidence to both the delegate and in the hearing as to being suspected of being a witch and mistreated by her husband and his family and other villagers in [her village]. On that basis, the Tribunal would accept that the applicant faces a real chance of serious or significant harm should she return to [her village].

1. The Tribunal accepted Ms BWD19 had left her husband in April 2012 and moved to Kathmandu where she lived with her son at the home of a friend. The Tribunal noted Ms BWD19 said she worked in a hotel business operated by her friend's family. (Her son continues to live with the family friend in Kathmandu.) The Tribunal noted (at [32]):

The applicant in the hearing confirmed evidence in the interview with the delegate that she did not suffer any problems in Kathmandu. In the Tribunal hearing the applicant confirmed that she was in Kathmandu from when she left her husband in April 2012 until she came to Australia in August 2013. However, the applicant indicated that she did not face any problems because she remained indoors all the time and did not leave where she was living and working. [emphasis added]

1. Later in the reasons for decision (at [42]), the Tribunal observed the "applicant lived in Kathmandu for 15 months immediately prior to coming to Australia". That observation was apparently based on the finding made at [32] that the applicant left her village to live in Kathmandu in April 2012 in the immediate aftermath of the split from her husband, and that she remained in Kathmandu until departing for Australia. The bolded text in the quote above makes clear the Tribunal relied on the oral evidence of the applicant at the hearing. The Tribunal went on to find Kathmandu was effectively the applicant's home since she had lived there for a reasonable period: at [42].
2. The Tribunal's focus on Ms BWD19's experience in Kathmandu was appropriate in circumstances where it had already explained (at [10]) the question it was required to answer was "whether the applicant faces a real chance of serious or significant harm in Kathmandu." The Tribunal subsequently explained at [39]:

For the purpose of the refugee criterion the Tribunal must determine whether the applicant faces a real chance of serious harm in all parts of Nepal (s.5J(1)(c)). For the purpose of the complementary protection criterion, if the Tribunal were to determine that the applicant needed to relocate from a home area to escape harm it would be necessary to determine whether relocation was reasonable (s.36(2B)(a)).

1. Ms BWD19 said residents of her home village occasionally visited Kathmandu. She was worried they might be violent towards her if they found her. She also suggested those villagers might have tried to track her down. The Tribunal explored this claim (at [33]‑[35] and [45]‑[49]), concluding (at [49]‑[50]):
   1. The Tribunal is not persuaded of this. The mere sighting of individuals from [her village] in Kathmandu while the applicant was residing in Kathmandu is not probative in itself that those individuals were in Kathmandu with the aim of seeking and harming the applicant. Further, even if those individuals had had some adverse interest in the applicant, seven years have passed since the events in question. Kathmandu is a reasonably populous city. The applicant lived in Kathmandu for 15 months immediately after leaving [her village] without encountering any harm. Whilst the applicant has claimed that she remained indoors for this time to avoid harm, she was working in paid employment in a hotel with interactions with members of the public.
   2. These factors cause the Tribunal to not be satisfied that the applicant faces a real chance of serious or significant harm in Kathmandu based on a belief by individuals in [her village] or surrounding districts who believe that she is a witch. The Tribunal is not satisfied that such individuals have a current intention to harm the applicant to such an extent that they would seek to track her down and harm her in Kathmandu.
2. In those circumstances, the Tribunal found (at [51]) the applicant did not face:

...a real chance of serious or significant harm on return to Kathmandu based on past harm in [her village] that she has encountered based on being believed to be a witch.

1. After further considering DFAT information about the circumstances of single women in Nepal - and in Kathmandu in particular, which is urbanised and more sophisticated - the Tribunal found at [57]:

...considering all the evidence, including independent evidence, the Tribunal does not consider that the applicant faces a real chance of serious or significant harm on return to Nepal based on being a woman or a single woman, or having a son with medical issues. The Tribunal repeats its view that the issues facing the applicant prior to April 2012 in the [applicant's village]... do not lead to the applicant facing a real chance of serious or significant harm on return to Kathmandu seven years later, also considering that the applicant lived in Kathmandu for 15 months without encountering any specific problem other than hearing reports of individuals from [her village] being seen in Kathmandu.

1. Ms BWD19 filed an application for judicial review in May 2019. She identified four grounds of review.
2. The minister provided written submissions. The applicant did not. At the outset of the hearing, I explained the role of the Court and emphasised the need to focus on whether the Tribunal's decision was affected by material jurisdictional error. I also explained the concept of jurisdictional error. I heard from the minister's representative before turning to the applicant and asking her for her submissions. She said she had nothing to say beyond asserting that all her claims were true. In the absence of submissions, I have done my best to understand the grounds of review and considered whether any other errors were apparent on the record.
3. The first ground contends the Tribunal "failed to deal with my safety and state protection given the fact that I am a victim of domestic/public violence in Nepal".
4. I have already explained the Tribunal expressly accepted at [38] of its reasons that the applicant was the victim of domestic and public violence in her home village. The Tribunal was not satisfied the risk extended to Kathmandu for reasons it explained at [49]-[50]. Having reached its conclusion about the applicant's ability to live and work safely in Kathmandu if she returned, the Tribunal was not required to go any further and deal with other questions, evidence or arguments. I note the Tribunal regarded Kathmandu as the applicant's home area. It added that if Kathmandu was not her home area, it was still reasonable to expect her to relocate there since she had lived there for a period. It is clear the Tribunal dealt with all the facts and arguments it needed to in order to resolve the question it had correctly posed at [10] of its reasons. In those circumstances, this ground must fail.
5. The second ground contends the Tribunal's finding about her time in Kathmandu was poorly justified and was based on the assumption she had lived there for 15 months when the applicant denied ever saying that in her evidence. I take that ground to be alleging the Tribunal's finding was unreasonable in the sense it was not based on the evidence.
6. I have already quoted from the Tribunal's decision at [32] where it found Ms BWD19 left her village and moved to Kathmandu in April 2012 after her separation and that she remained there until she left for Australia. The Tribunal's finding to that effect was said to be based on the applicant's evidence at the hearing. I was not provided with a transcript of the hearing, so I cannot confirm the evidence was correctly recorded by the Tribunal. In the absence of a transcript, I am entitled to rely on the Tribunal's account of what was said at the hearing.
7. Assuming the applicant gave evidence that she arrived in Kathmandu with her friend in or around April 2012, there is nothing capricious or arbitrary in the Tribunal's conclusion about the duration of her stay in that city. This ground is without substance.
8. The third ground contends the Tribunal misapplied the so-called 'real chance' test. It did not. The Tribunal discussed the 'real chance' and 'real risk' tests at the outset of its reasons (at [6]-[8]). In its findings at [57] and [58], it referred to a "real chance of serious or significant harm". The Tribunal's appreciation of the distinction between the two tests was apparent in its reasons at [39] where the Tribunal observed:

For the purpose of the refugee criterion the Tribunal must determine whether the applicant faces a real chance of serious harm in all parts of Nepal (s.5J(1)(c)). For the purpose of the complementary protection criterion, if the Tribunal were to determine that the applicant needed to relocate from a home area to escape harm it would be necessary to determine whether relocation was reasonable (s.36(2B)(a)).

1. The Tribunal's analysis of the evidence confirms it applies the tests correctly, even if it did not expressly make separate findings in relation to each test. A fair reading of the Tribunal's reasons for decision makes clear it was satisfied the applicant did not meet the criteria for a protection visa contained in ss 36(2)(a) and (aa). This ground must fail.
2. That leaves only ground four. The applicant contends the Tribunal's finding that she could live safely in Kathmandu was irrational and unreasonable. It was not. I have already found the Tribunal's finding with respect to the viability of Kathmandu was explained at [49]-[51]. There was nothing illogical or unreasonable in that reasoning: the findings were clearly open on the evidence. This ground must also fail.

1. The application for judicial review must be dismissed.
2. I asked the parties for submissions regarding costs at the end of the hearing. I note the proceeding was listed in this Court for final hearing on 7 May 2025. On 6 May 2025, the applicant emailed the Court advising she was unable to attend the hearing due to illness. She requested a one-week adjournment. On the morning of the hearing, the minister's representative informed the Court and applicant that they intended to oppose the adjournment request and seek dismissal for non-appearance.
3. Ms BWD19 did not appear at the hearing on 7 May. I made orders adjourning the hearing for one week and required the applicant to provide medical evidence to evidence her non-appearance was due to illness. Ms BWD19 provided a medical note, and the matter resumed for hearing on 15 May 2025.
4. The minister sought a fixed sum of $5,600 for the work done in preparation for the hearing, and an additional sum of $1,120 for costs thrown away as a result of the adjournment. This amounts to a total order for costs in the fixed amount of $6,720.
5. I am satisfied costs should follow the event in this case. The minister has clearly incurred costs in defending the proceedings that will otherwise have to be met out of public monies. I am satisfied the amount sought is reasonable and proportionate in the circumstances. It is lower than the amount indicated in the Court's Scale. While the adjournment was not the applicant's fault - I accept she was ill - the minister's lawyers had prepared for the event and appeared as required. It is therefore appropriate that the minister's reasonable costs of attending should be met. I therefore order that the applicant pay the minister's costs in the fixed amount of $6,720.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe.