MZALO v Minister for Immigration
[2016] FCCA 1071
•18 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZALO v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1071 |
| Catchwords: MIGRATION – Application for judicial review of Refugee Review Tribunal decision – applicant’s grounds of review consisting of merits review – applicant failing to attend Tribunal hearing – Tribunal’s decision clearly open on the materials – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.36(2)(aa) |
| MIAC v SZQRB [2013] FCAFC 33 |
| Applicant: | MZALO |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1965 of 2014 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 24 March 2016 |
| Date of Last Submission: | 24 March 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 18 May 2016 |
REPRESENTATION
| Counsel for the Applicant: | In Person (with the assistance of an interpreter) |
| Counsel for the Respondent: | Ms Ngo |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed 29 September 2014 be dismissed.
The Applicant shall pay the First Respondent’s costs.
The title of the proceeding be amended so that the name of the second respondent is the ‘Administrative Appeals Tribunal’.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1965 of 2014
| MZALO |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introductory
By an application filed on 29 September 2014, the applicant seeks judicial review of a decision of the Refugee Review Tribunal dated 29 August 2014. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Protection (Class XA) visa. The grounds asserted in the application essentially challenge the factual findings made by the Tribunal and are, as the first respondent submits, clearly a matter of merits review.
Given the applicant’s self-representation, I have checked the matters in the Court Book (“CB”). I do not think that the record shows that the Tribunal fell into error such as to vitiate its findings, and accordingly the application will be dismissed with costs.
The Materials in the Court Book
In the Community Status Resolution part 1 – Client Case Plan (CB1 - 5), I note that as at 11 October 2013 the applicant asserted that her husband had been abusing her, as she had left him two weeks previously (CB2). The domestic violence commenced three days after her marriage. She was stressed about her visa situation and the fact that her husband lied and cheated her by not including her on his Permanent Residency application (CB4).
In her application for a visa form, the applicant asserted at CB9 that she separated due to domestic violence. At CB13, the applicant recorded an incapacity to provide a police complaint about her neighbour in India because the police refused to give a written copy of it.
At CB24, the applicant recorded that she left India to come to Australia on a student visa. At CB25, she asserted:
“One of my neighbour who is a youth leader of a ruling party misbehaved with me several time and tried to kidnapped me and rape me. My mother took loan to send me to Australia on student visa.
Now if I go back to India he will kidnapped me or kill me as he is an influential person. He threatened my mother about it. He wanted to take a revenge as I complained to the police against him.”
Details of this person’s misconduct are further continued at CB26 and 27. They include the fact that the applicant’s husband separated from her under pressure from this individual. The matters the applicant set out attest to a fear that if she returned her neighbour would harm her and there would be no State protection.
At CB35, there is a report from Medical One - Sunshine. This records the applicant’s claims to the medical practitioner that her husband had been physically violent to her and had threatened to kill her on several occasions.
The Community Status Resolution Part 2 – interview/assessment is at CB36 - 40. It emerged that the applicant was now living again with her husband, because it is not accepted in her culture for a married woman to be separated or to be seen without her husband. She expressed no concerns about her safety at that time. When questioned about why it had taken her so long to apply for a Protection visa, the applicant replied: “I don’t know why I applied late, it’s my fault.” The applicant referred to the person whom she feared in India as “this boy who harmed me” and said “Not a neighbour, not a friend. I don’t know who he is.” The interviewing officer advised the applicant she would need to provide evidence to support her claims. It is clear that the relevant officer explained the process of applying for the Protection visa to the applicant in some detail.
The applicant’s application was considered by a delegate of the First Respondent, whose reasons are at CB64-74.
The delegate noted that the applicant arrived on a Student visa in November 2006 and has remained in Australia since. She married after arriving in Australia and stated that she separated on 24 October 2013. The delegate noted that the applicant had lodged several applications for student visas and graduate skilled visas after she arrived in Australia, and set out the history thereof at CB65.
The applicant’s claims for protection (paraphrased above) are itemised at CB67 - 68. They are essentially to do with the fear of one of her neighbours, who is a youth leader of a ruling party, who had tried to harm her, as I have already indicated. She said he was a youth leader of the ruling Akali Party of Punjab and has influence with the police. The applicant’s mother has told her to remain in Australia, otherwise she will be harmed if she returns to India.
The delegate noted that on 13 December 2013 the applicant was sent a letter acknowledging receipt of her protection visa application and included an invitation for the applicant to contact the Department to arrange for an interview to discuss her claims. The applicant had not responded to that request (CB68).
The kernel of the delegate’s decision is at CB69. The delegate found the applicant’s claims vague and lacking in detail. The fact that the applicant had not taken the opportunity to provide further evidence at an interview led the delegate to doubt the genuineness of the applicant’s claimed fear. The applicant did not claim she was harmed in India or feared returning to India until December 2013, and there was no indication she had raised any such fear with MRT members during her interviews. The delegate noted that, following a request for Ministerial intervention, the applicant was interviewed on 10 October 2013 by a Departmental Community Status Resolution Officer and told that officer that she could return to India if the Minister did not intervene in that case. She did not claim that she feared she would be harmed if she returned to India.
When interviewed again on 11 December 2013, the applicant stated that she had previously forgotten about a boy who had harmed her, and articulated her fears. The delegate opined that if the applicant had been genuinely in fear of harm she would have disclosed this at the first opportunity. Taken in conjunction with her visa history and the extensive period of time in Australia before applying for a Protection visa, the delegate did not accept that the applicant’s claims were made out. The delegate found that the applicant was seeking to remain in Australia not out of a genuine fear of persecution but to prolong her stay, and noted the lack of detail and the lack of documentary evidence supporting her claims and her failure to refer to harm earlier.
In the light of these findings it is unsurprising that the delegate found that the applicant was not a person to whom Refugee Convention protection was owed, nor that she would be at risk of significant harm within the meaning of s.36(2)(aa) of the Migration Act 1958 (Cth).
The applicant applied for a review of the delegate’s decision, and on 16 July 2014 was sent a letter inviting her to appear before the Tribunal (CB84 - 85). The applicant did not attend the hearing.
The Tribunal’s decision is at CB95 - 99.
The Tribunal set out an overview of the applicant’s claims, and the paraphrase at paragraphs 2 and 3 (CB96) is in my opinion a fair one. The Tribunal noted that the applicant had not appeared at the hearing, and recorded at CB97, paragraph 6:
“The applicant did not respond to the Tribunal’s invitation, nor did she attend the scheduled hearing. As at the date of the Tribunal’s decision the applicant has made no further contact with the Tribunal. In these circumstances, and pursuant to section 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
It is clear from paragraphs 7 - 11 that the Tribunal was well aware of the criteria the applicant had to meet to obtain a Protection visa and had a proper understanding of the complementary protection criterion in s.36(2)(aa).
At paragraph 13 of CB98 the Tribunal noted:
“As the applicant did not attend the hearing, the Tribunal was denied an opportunity to test her claims. The Tribunal understands the applicant’s claims to be essentially that she fears harm from a boy in India whom she knew before travelling to Australia and who she describes in her Protection visa application as her neighbour, an influential person and political youth leader for the ruling Akali Party, who seeks revenge upon her because she complained about him to the police.”
The Tribunal went on, at paragraphs 15 to 18, to say:
“The Tribunal considers the applicant’s claims to be vague and lacking in meaningful detail. The applicant has provided little detail about her former neighbour, whom she does not name in her visa application, or his reasons for wishing to harm her. She claims that he attempted to kidnap and rape her, but does not say when or where this event occurred. She claims to have made a police complaint about her neighbour, but has not provided any information about the response of the authorities to that complaint. She claims her husband in Australia dumped her under the influence of her former neighbour in India, but elsewhere in her visa application states that she separated from her former husband because of domestic violence. Had the applicant attended the hearing, the Tribunal would have questioned her about these matters as well as seeking further details about the whereabouts of her own family and her former neighbour and the reasons for which she delayed seeking protection in Australia.
On the basis of the very limited evidence before it, The Tribunal cannot be satisfied that the applicant has in the past experienced harm from her former neighbour as claimed, nor that he is an influential person and political youth leader for the ruling Akali Party. On the information available to it, the Tribunal does not accept that the applicant has a genuine subjective fear of serious harm from her former neighbour or his associates in India. On the evidence before it, the Tribunal does not accept there to be a real chance that the applicant faces serious harm from her former neighbour or his associates if she returns to India, now or in the reasonably foreseeable future.
Given the applicant’s claims to have suffered violence at the hands of her former husband, the Tribunal has also considered whether the applicant has a well-founded fear of harm from her former husband if she returns to India, now or in the foreseeable future. The delegate notes in the decision recorded dated 16 April 2014 (a copy of which was provided to the Tribunal by the applicant) that the applicant married in Australia and her former husband is the holder of an Australian skilled visa. The Tribunal accepts that the applicant separated from her former husband on 24 October 2013 as a result of his violence towards her, noting that her evidence is supported by a medical report from Dr Satma Karim dated 27 May 2013 which states that the applicant has attended her practice on several occasions alleging that her husband has been physically violent towards her. The applicant has made no claims to fear harm from her former husband if she returns to India and the Tribunal finds there to be no real chance that that would occur, given that the information before the Tribunal suggests that they met and married in Australia and that her former husband continues to reside here.
Having considered the applicant’s claims, the Tribunal finds that there is no real chance that the applicant will face persecution for any of the convention reasons if she returns to India now or in the reasonably foreseeable future. The Tribunal finds that the applicant does not have a well founded fear of persecution for a Convention reason.”
The Tribunal then went on to consider the complementary protection regime and for the reasons already set out, did not accept that there was a chance that the applicant faced serious harm from her former neighbour or former husband if she were to return to India in the reasonably foreseeable future. The Tribunal referred, in my opinion, correctly to MIAC v SZQRB [2013] FCAFC 33 confirming that the real risk test imposes the same standard as the real chance test applicable to the assessment of well founded fear in the Refugee Convention definition. The Tribunal went on to conclude that the applicant did not meet that criterion.
The Submissions made at Court
The applicant appeared at Court representing herself with the assistance of an interpreter. She said that she married in 2012 and was assaulted on the third day thereafter and went to the police. She said that the husband beat her very badly and the police were going to arrest her husband, but she got scared and withdrew the complaint. The violence did not stop and she was sent out by the husband in the middle of the night and he would not let her eat. He beat her particularly before exams. She applied to the Migration Review Tribunal and wasted all her time and spoiled her future.
She did not apply for permanent residence. There were problems in India itself. A neighbour also assaulted her. A lady had relations with her husband and she got an Intervention Order against her. She said she was extremely depressed. Her father was dead. She is unable to work here and her mother supports her. Friends help her. She said she was on her own and no one helped her.
Counsel for the first respondent submitted that none of these assertions were made before the Tribunal. This not entirely accurate. The reference to the assault on the third day after marriage and the first complaint to police and its withdrawal are all consistent with materials in the Court Book. Nonetheless, to the extent that the submissions ranged over matters not asserted to the Tribunal, counsel is correct to say that they cannot be taken into consideration by the Court.
In reply, the applicant said that at the time of the hearing before the Tribunal she was not well and said she could not go. She asserted that “my assistant said they would give me the visa”. I take the assistant presumably to be some sort of migration agent, although the applicant did not clarify the matter.
Consideration
The applicant was visibly distressed when making her submissions in Court. It is clear that the memory of her relationship with her former husband is deeply distressing for her. It may well be that associated distress caused her to fail to engage both with the delegate and with the Tribunal. Nonetheless, the issue before this Court is whether the decision of the Tribunal is vitiated by jurisdictional error.
As the first respondent’s submissions correctly, in my opinion, assert, the three grounds of review are all quite clearly impermissible merits review. They seek to challenge the factual findings of the Tribunal. The Tribunal was well aware that the applicant had expressed a fear of being kidnapped and raped if she was to return to India. The Tribunal found that the applicant and her husband had divorced in Australia. There was no evidence before the Tribunal that the husband was forcing her to return to India. The Tribunal was well aware that the applicant had asserted a genuine fear of harm associated with an inability on her part to return to India.
The matter, I regret to say, from the applicant’s point of view, can be stated shortly. The Tribunal well understood the task before it. It was to determine whether the applicant was a person to whom Australia owed either Refugee Convention obligations or who faced a significant risk of harm within the meaning of the complementary protection criterion. The Tribunal’s factual findings were, at the very least, clearly open to it on the materials. The Tribunal was not required to accept uncritically the applicant’s assertions. The Tribunal, indeed like the delegate, expressly recorded that it would have wished to have put questions to the applicant to obtain a clearer understanding of her assertion. Her failure to attend deprived the Tribunal of that opportunity.
Conclusion
While no one who observed the applicant’s demeanour in the Court would fail to feel a measure of considerable sympathy for her, the fact is that her application simply cannot succeed. The Tribunal’s decision was not affected by jurisdictional error and the application must be dismissed with costs.
I certify that the preceding thirty(30) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Date: 18 May 2016
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