MZACS v Minister for Immigration and Border Protection

[2015] FCA 852

FEDERAL COURT OF AUSTRALIA

MZACS v Minister for Immigration and Border Protection [2015] FCA 852

Citation:	MZACS v Minister for Immigration and Border Protection [2015] FCA 852
Appeal from:	MZACS v Minister for Immigration & Anor [2015] FCCA 1388
Parties:	MZACS v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	VID 246 of 2015
Judge:	TRACEY J
Date of judgment:	14 August 2015
Catchwords:	MIGRATION – appeal from the Federal Circuit Court of Australia – judicial review of a decision to refuse a Protection (Class XA) visa – leave sought to rely on additional ground not argued in the Federal Circuit Court
Legislation:	Federal Circuit Court Rules 2001 (Cth), r 13.03C(1)(c) Migration Act 1958, ss 424A, 426A
Date of hearing:	14 August 2015
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	19
Counsel for the Appellant:	The Appellant appeared in person with the assistance of an interpreter
Solicitor for the First Respondent:	Ms N Bosnjak of Clayton Utz
Counsel for the Second Respondent:	The Second Respondent entered a submitting appearance save as to costs

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 246 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MZACS
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	14 AUGUST 2015
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 246 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MZACS
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE:	14 AUGUST 2015
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The appellant is a citizen of India and is of Sikh religion.  She arrived in Australia on 18 April 2010 as a dependent in relation to her husband’s student visa.  On 8 April 2013, she applied for a Protection (Class XA) visa.

2. The appellant had married a man in India who was not a Sikh and was from a different caste.  The appellant claimed, that when their families became aware of their relationship, they reacted badly and threatened to kill them both.  After the appellant and her husband came to Australia, they decided to divorce in order to bring peace between their families.

3. The appellant claimed that, in the Punjab, thousands of girls are killed in honour killings.  The appellant feared that, on her return to India, her family would take her life to save their pride. 

4. The application was refused by a delegate of the Minister.

5. The appellant appealed to the Refugee Review Tribunal (“the Tribunal”). 

6. The appellant did not attend the hearing before the Tribunal on 4 March 2014. 

7. The Tribunal affirmed the delegate’s decision pursuant to s 426A of the Migration Act 1958 (Cth) (“the Act”), which 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.

8. The Tribunal relied on the evidence submitted by the appellant with her application for review, including information contained in the appellant’s departmental decision regarding previous visa applications.  Based on the evidence before it, the Tribunal was not satisfied that the appellant’s family and her husband’s family were upset about their relationship.  Consequently, the Tribunal did not accept that the appellant faced serious or significant harm if she were to return to India.

9. The appellant sought judicial review of the Tribunal’s decision in the Federal Circuit Court.  In her application under the heading “Grounds of application”, the appellant listed the following:

   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.

10. The appellant 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 (Cth).

11. On 9 April 2015, the appellant filed an application for reinstatement of the proceeding.  She  explained in an affidavit dated 8 April 2015 that she was late for the hearing because her train was cancelled.

12. The trial judge was prepared to accept the statement made by the appellant in her affidavit that she was late for court because of public transport difficulties.  However, the trial judge was not satisfied that the appellant had a reasonable case in the substantive application.  The trial judge considered that the Tribunal had set out verbatim the appellant’s claims and that the Tribunal’s reasons addressed why it did not accept the bulk of the appellant’s claims.  The application for reinstatement was dismissed.

13. The appellant now seeks leave to appeal to this Court against the Federal Circuit Court’s decision.  The appellant’s draft notice of appeal sets out the following grounds of appeal:

    1.The FM failed to find that the tribunal’s decision was in breach of s. 424A of the Migration Act 1958 (Cth) and therefore fall under jurisdictional error.

    (a) There was certain adverse information used by the Tribunal to affirm the decision under review and the Tribunal did not disclose the information in accordance with s 424A(1).

14. The appellant appeared in person.  She had the assistance of an interpreter. 

15. The appellant said that she had not drafted the notice of appeal. This had been done by “a friend” who was not a lawyer. The appellant had no idea about the provisions of s 424A of the Act. She was unable to identify any adverse information which had been relied on by the Tribunal but not disclosed to her when it determined to affirm the delegate’s decision.

16. No complaint of this nature had been made in the Federal Circuit Court.

17. The Federal Circuit Court did deal with the grounds of review which were raised before it and was unable to discern any jurisdictional error which would warrant its intervention.

18. The appellant has failed to identify any appellable error made by the Federal Circuit Court.  The proposed appeal has no reasonable prospects of success.

19. The application for leave to appeal must be dismissed with costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Associate: 
Dated:       14 August 2015