MZACS v Minister for Immigration

[2015] FCCA 1388

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZACS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1388

Catchwords:
MIGRATION – Refugee Review Tribunal – application dismissed for non-appearance – application for reinstatement – no reasonable prospect of success.

Legislation:
Federal Circuit Court Rules 2001, r.13.03C(1)(c)
Migration Act 1958, s.426A

Applicant: MZACS

First respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 625 of 2014

Judgment of: Judge Riley

Hearing date: 29 April 2015

Date of last submission: 29 April 2015

Delivered at: Melbourne

Delivered on: 29 April 2015

REPRESENTATION

Counsel for the applicant: The applicant appeared in person

Solicitors for the applicant: The applicant was not represented

Solicitor Advocate for the first respondent: Natasha Bosnjak

Solicitors for the first respondent: Clayton Utz

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Clayton Utz

ORDERS

1. The application in a case filed on 9 April 2015 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding, fixed in the sum of $1,984.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 625 of 2014

MZACS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First respondent

REFUGEE REVIEW TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for reinstatement of a proceeding. The applicant filed an application on 3 April 2014 to review a decision of the Refugee Review Tribunal. That matter was listed for final hearing on 19 March 2015. The applicant did not attend court when the matter was listed. The application was dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001. 

2. On 9 April 2015, the applicant filed an application in a case in incorrect form, which I understand to be an application for reinstatement of the proceeding.  The first respondent does not take any point in relation to the form of the application in a case, and I proceed on the basis that it is in fact a proper application in a case. 

3. In considering an application for reinstatement of a proceeding that has been dismissed for non-appearance the court must consider:

   a)whether there is an adequate reason for the failure to attend the hearing;

   b)whether there is an arguable case in the substantive application; and

   c)whether it is in the interests of justice to allow the application to proceed.

4. The applicant explained in an affidavit, which was sworn or affirmed on 8 April 2015, that she was late for court because her train was cancelled.  She said that she was 45 minutes late, by which time the substantive application had already been dismissed.  The applicant did not provide any evidence about train cancellations on that day.  However, I am prepared to accept the statement made by the applicant in her affidavit.

5. In relation to the merits of the substantive application, I note that the applicant first arrived in Australia as a dependant in relation to her husband’s student visa.  She arrived here first on 18 April 2010. 

   
   

   She applied for a protection visa on 8 April 2013.  On 20 August 2013, an officer of the Department of Immigration emailed the applicant to schedule an interview.  The applicant did not respond.  On 21 August 2013, an officer of the Department of Immigration sent another email, but again the applicant did not respond.  On 30 August 2013, the delegate of the Minister refused the application. 

6. On 27 September 2013, the applicant applied to the Refugee Review Tribunal for review of the delegate’s decision.  The tribunal sent the applicant a letter dated 23 January 2014 inviting the applicant to a hearing on 4 March 2014.  The letter said:

   If you do not attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable you to appear before it.

7. The applicant did not attend the hearing on 4 March 2014 and did not contact the tribunal.  On 4 March 2014, an officer at the tribunal telephoned the applicant's mobile telephone, but the call went to a generic voicemail system.  The tribunal affirmed the delegate’s decision not to grant the applicant a protection visa on 7 March 2014. 

8. The tribunal made its decision pursuant to s.426A of the Migration Act 1958.  That provision enables the tribunal to make a decision where the applicant has failed to attend a hearing after being properly notified of it, without giving the applicant a further opportunity to be heard. 

   
   

   The court book indicates that the applicant was properly notified of the hearing.  She indicated a particular address in her application to the tribunal, and the hearing notice was sent to that address. 

9. The tribunal proceeded to reject the applicant's claims.  Those claims were that:

   a)she had formed a relationship with a student who was from a different caste;

   b)she had secretly married him;

   c)when her family and his family found out about the relationship they reacted very badly and threatened to kill both of them;

   d)after they came to Australia they decided to divorce in order to bring peace between the two families;

   e)in the Punjab, thousands of girls are killed in honour killings; and

   f)if she went back to India, her family would take her life. 

10. The tribunal accepted that the applicant was an Indian citizen. 

    
    

    The tribunal considered that the applicant's claims were vague and lacking in detail.  The tribunal was prepared to accept that the applicant is a Sikh and was prepared to accept that she had married a student in India.  However, the tribunal did not accept that he was from a different caste.  The tribunal did not accept that her family and his family were upset about the relationship, and otherwise did not accept any of the applicant’s claims.  Consequently, the tribunal did not accept that the applicant faced serious or significant harm if she were to return to India. 

11. The application to this court appears to have been prepared by the applicant without the benefit of legal assistance.  The grounds of application are as follows (errors in the original):

    1.I applied for the visa to department of immigration which was refused.

    2.Then I apply to RRT for review of that decision,.

    3.I think RRT and department of immigration did not look my situation. 

12. The tribunal’s reasons showed that it did look at the applicant’s situation.  The reasons set out verbatim the applicant’s claims.  The tribunal’s reasons address why the tribunal did not accept the bulk of those claims.  I consider that there is no substance in the claim that the tribunal did not look at the applicant’s situation. 

13. The applicant’s affidavit in support of her application to this court filed on 3 April 2014 simply says:

    I AM SENDING YOU MY RRT DECISION

14. No jurisdictional error is identified in the affidavit.  The applicant did not file written submissions in the substantive proceeding or in the reinstatement application.  When asked today if she was able to say anything about jurisdictional error in the tribunal’s process or decision, the applicant told the court that she did not want to say anything. 

    
    

    The nature of jurisdictional error was explained to the applicant.  However, again, she was unable to say anything to the court. 

15. In the circumstances, I am not able to be satisfied that the applicant has a reasonable case in the substantive application.  Even though I am prepared to accept that the applicant may have missed her hearing on 19 March 2015 because of public transport difficulties, I am not satisfied that it would be in the interests of justice for this matter to be reinstated.  The application for reinstatement will be dismissed. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:  25 May 2015