CSV15 v MIBP

Case [2018] FCA 699

FEDERAL COURT OF AUSTRALIA

CSV15 v Minister for Immigration and Border Protection [2018] FCA 699

Appeal from: CSV15 v Minister for Immigration & Anor [2017] FCCA 268
File number: VID 248 of 2017
Judge: COLLIER J
Date of judgment: 21 May 2018
Catchwords:

MIGRATION –  appeal from dismissal of judicial review application by the Federal Circuit Court of Australia of decision refusing to grant protection visa under the Migration Act 1958 (Cth) – whether Tribunal required to put country information to appellant – whether impact of appellant’s mental health constitutes serious or significant harm for purpose of ss 36(2)(a) or (aa) of the Migration Act 1958 (Cth)

PRACTICE AND PROCEDURE – leave required to rely on fresh ground of appeal not argued before primary Judge – where leave opposed on basis of poor prospects of success – whether granting leave to rely on fresh ground of appeal would be in the interests of justice
Legislation:

Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 36(2A), 91R (repealed), 91R(1)(c) (repealed), 91R(2) (repealed), 424A(1), 424A(1)(a), 424A(3)(a)

Convention Relating to the Status of Refugees. Opened for signature 28 July 1951. 189 UNTS 137 (entered into force 22 April 1954) art 1A(2)

Protocol Relating to the Status of Refugees. Opened for signature 31 January 1967. 606 UNTS 267 (entered into force 4 October 1967)
Cases cited:

BTM15 v Minister for Immigration and Border Protection [2016] FCA 888

Minister for Immigration, Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572

QAAC v Refugee Review Tribunal [2005] FCAFC 92

SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415

VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178

VUAX v Minister for Immigration and Multicultural Affairs [2004] FCAFC 158; (2004) 238 FCR 588

WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330
Date of hearing: 21 August 2017
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 37
Counsel for the Appellant: The Appellant appeared in person
Counsel for the Respondents: Ms S Zeleznikow
Solicitor for the Respondents: Australian Government Solicitor

ORDERS

VID 248 of 2017
BETWEEN:

CSV15

Appellant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

COLLIER J

DATE OF ORDER:

21 MAY 2018

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

COLLIER J:

THE APPEAL

  1. This is an appeal from the decision of the Federal Circuit Court dated 20 February 2017, dismissing an application for judicial review of the decision of the Administrative Appeals Tribunal (the Tribunal) to affirm the decision of a delegate of the first respondent (the Minister) to refuse to grant the appellant a Protection (Class XA) visa.

  2. The ground of appeal relied on by the appellant was not argued before the…

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Details
AGLC
CSV15 v MIBP [2018] FCA 699
Case
[2018] FCA 699
Decision Date

CaseChat Overview and Summary

The appellant, a citizen of India, sought judicial review of the Federal Circuit Court of Australia's decision to dismiss her application for a protection visa under the Migration Act 1958. The appellant, who had previously held student visas and applied for a skilled visa, claimed that she would face serious harm if returned to India due to her father's strict Sikh beliefs, her past marriage choices, and her mental health issues. The Tribunal had affirmed the delegate's refusal of her visa application, finding inconsistencies in her evidence and adverse credibility findings. The appellant sought to argue new grounds on appeal, including the Tribunal's failure to provide country information and whether her mental health constituted serious harm under the Act.

The central legal issues in this appeal were whether the Tribunal was required to present country information to the appellant and if the appellant's mental health issues constituted serious or significant harm. Additionally, the court had to decide whether to grant leave to rely on new grounds of appeal not argued before the primary judge. The Minister opposed the grant of leave, arguing the grounds had poor prospects of success and would not be in the interests of justice. The court considered whether granting leave would be expedient in the interests of justice, depending on the strength of the new grounds.

The Court found that the Tribunal was not required to present country information to the appellant as it fell under the exclusions in s 424A(3)(a) of the Act. It was established that such information is not specific to the appellant and therefore not required to be put to her. Furthermore, the Court found that the appellant's mental health issues did not constitute serious harm as required under ss 36(2)(a) or (aa) of the Act. The Court also determined that granting leave to rely on new grounds of appeal would not be in the interests of justice due to the weak prospects of success. Consequently, the appeal was dismissed with costs.

1. The appeal be dismissed with costs.

Orders

Orders of the court

1. The appeal be dismissed with costs.

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

Background

Background to the litigation

At the oral hearing on 21 August 2017, the appellant requested an adjournment to obtain legal advice and to have a lawyer study her case. That request for an adjournment was refused because the appellant had already had sufficient opportunity to seek legal advice and there was no indication before the Court that there would be any benefit to the Court or the progress of the matter by adjourning the hearing.BACKGROUND The appellant is a citizen of India who first came to Australia on 9 November 2008. At that time, the appellant held a Student (Class TU) (Subclass 573) visa. The appellant’s husband at that time accompanied her as a dependent. The appellant left Australia on 19 June 2011 and returned on 11 July 2011 on a Student (Class TU) (Subclass 572) visa, which was cancelled in 2012 after the appellant withdrew from her course. The appellant then applied for a Skilled (Temporary) (Subclass 485) visa in 2012, which was refused by a delegate of the Minister and also by the then Migration Review Tribunal. The appellant sought Ministerial intervention, but this was declined on 20 February 2014. The appellant lodged her application for the visa the subject of these proceedings on 25 March 2014. A delegate of the Minister refused her application on 2 September 2014 after attending an interview with the delegate. The appellant applied to the Tribunal for review of the delegate’s decision on 18 September 2014 and attended a hearing on 17 September 2015. The Tribunal affirmed the delegate’s refusal of the appellant’s visa application on 7 August 2015. Before the Tribunal, the appellant claimed that she left India because her father was a strict Sikh and that she had disagreements with her father because she does not adhere or respect Sikhism. Before leaving India, the appellant entered into a love marriage, but was later divorced, and later entered into a de facto relationship with a Sikh male from a different caste. As a result, the appellant claimed that she will be subject to emotional abuse by her father and that she would be killed if she returned to India. The appellant claimed that she would be an outcast and would receive no support from her relatives or the community. She also stated that she would not survive in India because she suffered from depression and was suicidal. The Tribunal considered that there were significant inconsistencies in the appellant’s evidence and made adverse findings as to her credibility. The Tribunal accepted that the appellant had a preference for Western culture and did not adhere to Sikhism; that her father, who was a strict Sikh, disagreed with her lifestyle choices and views; and that the appellant would likely have a tense and argumentative relationship with her father. However, the Tribunal also noted that the appellant’s father had supported her financially when she applied for her student visa, even after knowing about her first love marriage, and found that this was inconsistent with the appellant’s claims that her father would kill or seriously harm her.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The appellant did not file written submissions in support of her grounds of appeal but made oral submissions at the hearing on 21 August 2017.CONSIDERATION At the hearing, the appellant reiterated her personal situation with her father, whom the appellant described as very strict. The appellant outlined the situation of women in India, especially those who sought higher education, who were divorced, or who entered into love marriage or inter-caste marriages. She also stated that she had not returned to India when her mother passed away because of her family’s disapproval of her. The appellant claimed that she would be killed or would commit suicide if she returned to India. These submissions, however, did not address her grounds of appeal. Further, they amounted to a request for the Court to overturn the factual findings of the Tribunal, or engage in merits review, which this Court is not permitted to do in an appeal from a judicial review application. In order to grant leave for the appellant to rely on fresh grounds on appeal, it must be expedient in the interests of justice for those fresh grounds to be raised: VUAX v Minister for Immigration and Multicultural Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46], [48]. Whether it is in the interests of justice to grant leave depends on the strength of the grounds on which the appellant seeks to rely: BTM15 v Minister for Immigration and Border Protection [2016] FCA 888 at [21]. As to ground 1(a), namely the alleged failure on the part of the Tribunal to put to the appellant the country information it relied upon to conclude that the appellant did not face harm in India on account of being a woman, the Minister submitted, in summary:·The manner in which the Tribunal dealt with the claims raised by the appellant in relation to whether she would face harm as a woman in India was orthodox.·The Tribunal was not required to put the country information to the appellant for comment because it fell within s 424A(3)(a) of the Act. Section 424A(1)(a) of the Act provides that the Tribunal must:… give the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal would be the reason, or part of the reason, for affirming the decision that is under review … However, s 424A(1)(a) is subject to s 424A(3)(a) of the Act, which provides:(3) This section does not apply to information:(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant is a member… It has been established by numerous authorities that country information falls within s 424A(3)(a) and is therefore excluded from information required to be put to the appellant under s 424A(1) of the Act. In Minister for Immigration, Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572, Merkel and Hely JJ observed:… we are also of the view that the reference in s 424A(3)(a) to the class of persons is not another criterion to be met but, as is the case with s 57(1)(b), is designed to underline the specificity required by precluding any argument that reference to a class could be taken as a reference to all individuals (including for example, an applicant) falling within it: see VHAP at [14].(Emphasis added.)