DBR17 v Minister for Home Affairs
[2018] FCA 1783
•13 November 2018
FEDERAL COURT OF AUSTRALIA
DBR17 v Minister for Home Affairs [2018] FCA 1783
Appeal from: DBR17 v Minister for Immigration [2018] FCCA 1581 File number: NSD 1193 of 2018 Judge: RARES J Date of judgment: 13 November 2018 Legislation: Federal Court of Australia Act 1976 (Cth) s 24
Migration Act 1958 (Cth) ss 5H, 5J, 36
Federal Circuit Court Rules 2001 r 44.12
Cases cited: Bienstein v Bienstein (2003) 195 ALR 225
Jackamarra v Krakouer (1998) 195 CLR 516
R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087
Date of hearing: 13 November 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 25 Counsel for the Appellant: The Appellant appeared in person assisted by an interpreter Solicitor for the First Respondent: Mr L Leerdam of DLA Piper Australia Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 1193 of 2018 BETWEEN: DBR17
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE OF ORDER:
13 NOVEMBER 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed as incompetent.
2.The oral application for an extension of time in which to file any application for leave to appeal be dismissed.
3.The applicant pay the first respondent’s costs fixed in the amount of $2700.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
RARES J:
On 15 June 2018, the Federal Circuit Court dismissed the appellant’s claim for Constitutional writ relief in respect of the decision of the Administrative Appeals Tribunal made on 14 June 2017 to affirm the Minister’s delegate’s decision not to grant the appellant a protection visa pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001: DBR17 v Minister for Immigration [2018] FCCA 1581.
The appeal is incompetent
The appellant filed her notice of appeal in this Court on 5 July 2018. Rule 44.12(1)(a) provides that at a hearing of an application for an order to show cause, the Federal Circuit Court may dismiss it, if it is not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, the decision of the Federal Circuit Court was interlocutory, not final, and s 24(1A) of the Federal Court of Australia Act 1976 (Cth) provides that an appeal does not lie from a judgment of the Federal Circuit Court exercising its original jurisdiction that is interlocutory, unless the Court or a judge gives leave to appeal. The Minister filed a notice of objection as to competency of the appeal on 13 August 2018.
The appellant represented herself before the trial judge and before me, and it is fair to say, she was not apprised of the technical issue about the competency of her appeal. I invited her to advance any arguments that she wished to put as to why her appeal should be allowed. I did so on the hypothesis that this would be her case were she granted leave to appeal and an extension of time in which to do so.
Because the appeal is prima facie incompetent, but the appellant wishes to seek to have the Court exercise its appellate jurisdiction, it is appropriate to treat the hearing today as if it were an application for an extension of time and leave to appeal, and to assess whether I should grant the extension of time and, if so, relief on the appeal, on the principles by which an appellate court considers the grant of an extension of time: see Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [3]-[4] per Brennan CJ and McHugh J; 539-543 [66] per Kirby J. In essence, in such a context, the Court considers whether the applicant’s case is strong on its merits and ought to be heard in fairness to the parties, in which case it grants the extension of time and allows the case to proceed. If it appears to be a flimsy case and weak on the merits, the Court will not extend time. It is not necessary to go into great detail on the merits, but it is necessary to have an appreciation of what the case is about: R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091 E-F per Lord Denning MR.
In addition, the criteria for granting leave to appeal are that the applicant must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave and that substantial injustice would result from the refusal of leave: Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ.
Background
The appellant is a citizen of Malaysia who arrived in Australia on 25 June 2016. She applied for a protection visa on 21 September 2016. The delegate, after interviewing the appellant, decided on 1 December 2016 to refuse to grant a protection visa. The delegate summarised the appellant’s written claims in her visa application. She confirmed in her argument before me today that those remained as existing claims, namely:
(a)she left Malaysia because she was forced to marry a man that her family wanted her to marry;
(b)her family “forced her to be prepared for the marriage and she had decided to just leave the house”;
(c)if she did return to Malaysia her family would force her to marry the unknown man;
(d)she did not move to another part of the country because she had two brothers watching her moves;
(e)her parents will beat her up and force her to marry the man of their choice;
(f)the police cannot help her because it is a family matter; and
(g)she cannot relocate now but may be able to in a few years when she can stand on her own feet and support herself.
The delegate was not satisfied that the appellant had provided sufficient information about her circumstances to support her claims, including because she had not provided the delegate with any information concerning the man whom her family wished her to marry or any other circumstantial detail. The delegate had concerns about the appellant’s veracity. She found that while the appellant might not want to return to Malaysia, because she did not wish to marry against her will, there was no information before her to suggest that the appellant, then a 27 year old woman, would be forced to marry without her consent. The delegate referred to country information that indicated that familial and societal pressures amongst the Malay Muslim community still existed but found that the appellant was not a Muslim, but a Catholic, and that there were laws in Malaysia protecting women against forced marriage in most States.
The delegate was satisfied that the appellant would be able, if she chose, to return to Malaysia at a location removed from her family and that it was open for her to seek assistance from the many government and non-government support agencies available to vulnerable women, if she required assistance on her return. The delegate also found that the appellant had demonstrated her independence and ability to seek assistance on her arrival in Australia, and that, while she may have been unhappy to return to her home country, the delegate was satisfied that she would be able to re-establish herself on her return. She found that there was no basis on which the appellant was entitled to Australia’s protection.
The proceeding before the Tribunal
The appellant appeared before, and gave evidence to, the Tribunal. The Tribunal said that the appellant had told it that she was unemployed in Australia. It found that she was being supported by her savings and family support. The appellant told the Tribunal that the only claim she had was that she feared being harmed by her family because they wanted to force her to marry a man she did not want to marry and so she had left home.
It considered that that claim, of being threatened by her own family and forced into a marriage, appeared to be a matter that could only fall within the complementary protection ground in s 36(2)(aa) of the Migration Act 1958 (Cth) and turned to consider whether it was satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being returned to Malaysia, there was a real risk she would suffer significant harm.
The Tribunal found there no such risk. It also concluded that there was no real chance that the appellant would be persecuted for reasons of her race, religion, nationality, membership of a particular social group or political opinion were she to return to Malaysia and that, in any event, her fear of persecution was not well-founded for the purposes of s 5J of the Act and that she was not a refugee within the meaning of s 5H.
The Tribunal noted that the appellant had brought a supporting witness with her. It recounted the appellant’s claims and evidence to it. It first considered the appellant’s claims that her parents and brothers would harm her because she refused to enter into a forced marriage, and that her family, as an observant religious Catholic family, objected to her having a relationship with a Catholic man and wanted to force her to marry someone chosen by some of her relatives whom she claimed were Hindu.
The Tribunal found that those claims were not credible. That was because the appellant had lived independently for five years in Kuala Lumpur, and then returned and lived for four years with her family whom, she claimed, constantly cursed her and mentally tortured her in that regard. The Tribunal noted that, in her application for protection, she said that she was living in Australia with the financial support of her family. It noted that the appellant’s supporting witness had worked with her for three years and that they had come to Australia together and had both lodged protection visa applications. It found that, having listened to both witnesses’ evidence, it gave the supporting witness’ evidence no weight.
The Tribunal accepted that the appellant was from an observant Catholic family who attended church regularly. It found that the Catholic church did not endorse forced marriage.
It did not accept as credible the appellant’s claim that her brother had threatened to kill her boyfriend and his family, or that her family were opposed to her relationship with her boyfriend, particularly if that meant she would be married. It accepted that it was plausible that the appellant’s family wished to see her married. But, it did not accept that her family had inflicted, or would inflict, significant harm on the appellant because she refused to marry someone not of their choosing. In any event, it found that the harm claimed by the appellant did not appear to fall within the definition of significant harm in s 36(2A) of the Act, on the basis of the material before it, including country information cited in the delegate’s decision.
Because of its concerns about the appellant’s credibility, the Tribunal was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of her being returned to Malaysia, the appellant would be at risk of any significant harm. Accordingly, it affirmed the delegate’s decision.
The proceeding below
Before the primary judge the appellant raised four grounds of review, namely that:
·the Tribunal had failed to consider her claim fairly;
·the Tribunal had not considered her case properly according to the migration law;
·she would suffer harm if she returned to Malaysia; and
·the Tribunal had failed to consider her claim for complementary protection because it misconstrued the definition of significant harm.
Having heard the appellant’s submissions, his Honour concluded that the first two grounds were broad claims that the Tribunal erred in considering her claims. He held that, in the absence of particulars, those grounds were incapable of establishing jurisdictional error in the Tribunal’s decision. He found that the Tribunal had considered her claims but it had not accepted that she would suffer harm from her family; a finding which his Honour held was open to the Tribunal based on the evidence before it. His Honour also noted that the Tribunal found that the appellant had no basis to claim protection as a refugee. He found that the third ground sought to cavil with the merits of the Tribunal’s decision, and therefore had to fail. The trial judge held that the fourth ground was misconceived because the Tribunal had considered whether the appellant would suffer significant harm under the complementary protection provisions in the Act and had rejected that claim.
His Honour concluded that the appellant was unable to demonstrate an arguable case of jurisdictional error by the Tribunal, and therefore dismissed it with costs under r 44.12(1)(a).
The purported appeal
The appellant’s notice of appeal asserted that his Honour erred by failing to find that the Tribunal had failed to consider her claims under s 36(2)(a), namely that she was a refugee, and that it had only considered her claims to be entitled to complementary protection. The first ground asserted that the Tribunal simply had assumed that she had no well-founded fear of persecution without inquiring into that. The second ground simply recited his Honour’s reasons in which he had set out her claims (a), (e) and (f) (that are in [6] above) (which she repeated in the ground).
The third ground read as follows:
It is submitted that the AAT failed to consider that the appellant evidence that
(a) She belonged to a “social group of women in a conservative Tamil society where arrangement marriages are more common and love marriages are condescended in that society and is not approved by the parents and generally in that society.
(b) The women who do not submit to the wishes of the parents in relation to arranged marriages arc tortured and their liberty are deprived
(c) Police failed to help the appellant on the ground that it was family matter
This being the case that the state (police) is unable to protect the appellant fromtorture and loss of liberty, the AAT should have considered the claim of refugee under Sec 36(2)(a) of the Migration Act. (errors in original)
When I asked the appellant about ground 3(a) and whether she had ever mentioned in the course of the process before the Department, the delegate or the Tribunal, that she was a Tamil, she said she had not. She told me that she had never put forward a claim of the kind in ground 3(a) of the notice of appeal. She confirmed that the claims in grounds 3(b) and (c) were part of her claim.
Consideration
As is apparent from the above, the grounds in the purported appeal were not raised below. Moreover those grounds have no substance. The Tribunal was correct to conclude that the appellant’s claims did not raise any issue that could be characterised as giving rise to a fear of persecution by reason of race, religion, nationality, membership of a particular social group or political opinion were she to return to Malaysia. Her claims were simply that, as an individual, she was under threat from her family for not submitting to its wishes that she marry a person of their selection and that one or more of her siblings might harm her boyfriend or his family. These were claims that could not attract any of Australia’s protection obligations under s 36(2)(a) or, indeed, (aa) of the Act.
I am unable to see any basis on which the proposed grounds of appeal raise any arguable case of error in the trial judge’s decision or of jurisdictional error in the way in which the Tribunal dealt with the claims before it. I am not able to discern any error in the trial judge’s decision which was, in my opinion, clearly correct. Any appeal, were I to grant leave, would be hopeless and has no prospect of success.
Conclusion
For these reasons, I am of opinion that the appropriate order is that the appeal should be dismissed as incompetent, and to the extent that the argument before me constituted an application for an extension of time and leave to appeal, that should be dismissed with costs.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 16 November 2018
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