MZANP v Minister for Immigration

[2015] FCCA 2896

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZANP v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2896

Catchwords:
MIGRATION – Judicial review of a decision of the Refugee Review Tribunal – application for a Protection (Class XA) visa – Applicant’s ground impermissible merits review – no arguable case – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a)

Migration Act 1958 (Cth), ss.424AA, 425, 425A, 426, 426A, 441A, 441(c)

Migration Regulations 1994 (Cth), reg.4.35B

Applicant: MZANP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2361 of 2014

Judgment of: Judge Hartnett

Hearing date: 25 September 2015

Delivered at: Melbourne

Delivered on: 25 September 2015

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Ms Senanayake

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. The name of the Second Respondent be changed to the Administrative Appeals Tribunal.

2. The Application filed on 24 November 2014 is dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

3. The Applicant pay the costs of the First Respondent fixed in the sum of $3,300.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2361 of 2014

MZANP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

1. Before the Court is an Application filed by the Applicant on 24 November 2014 seeking judicial review of a decision of the Refugee Review Tribunal (as it then was) (‘the Tribunal’) dated 31 October 2014.  The Tribunal affirmed a decision not to grant the Applicant a Protection (Class XA) visa.  The ground of application as set out in the Applicant’s application is as follows:-

   “MRT has made a jurisdictional error in my application.  My husband poses severe threat to my life in India.  My explanations and claims are genuine but the MRT has not considered my case.  I would like to make an appeal for this matter on compelling, compassionate and jurisdictional grounds.  Please look into my case and give me a chance for the case to be heard under the principle of natural justice.”

2. As submitted by Counsel for the First Respondent, the Applicant’s ground seeks impermissible merits review. It repeats the Applicant’s claims and takes issue with the Tribunal decision. The First Respondent submits there is no arguable case for the relief sought and the application should be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) with costs following the event.

3. The First Respondent relies upon Written Submissions filed by him and dated 16 September 2015.  Although Registrar Burns, on 3 March 2015, made Orders which included that the Applicant file and serve written submissions and a list of authorities 14 days before the final hearing, the Applicant has failed to file any such submissions.  On the hearing of the matter this day the Applicant was assisted by an interpreter. She was unable to make any oral submissions, let alone any submissions that would go to establishing jurisdictional error in the decision of the Tribunal.

History

1. The Applicant is a female citizen of India who arrived in Australia as the holder of a Subclass 573 Student visa on 24 May 2008.  She arrived with her husband.  The Applicant was the main applicant, and her husband was her dependant spouse.  The Applicant’s husband returned to India on 17 April 2010.  The Applicant made subsequent applications for a Student visa.  On 2 April 2013, the Migration Review Tribunal (as it then was) affirmed a decision of the Department not to grant the Applicant a Student visa.  On 30 April 2013, the Applicant submitted a request for Ministerial Intervention.

2. On 10 May 2013, the Applicant became an unlawful non-citizen, and on 17 May 2013, the Department emailed the Applicant advising her of her unlawful status and requesting that she approach the Department as soon as possible to discuss her situation. On 5 June 2013, the Applicant approached the Department and was granted successive bridging e-Visas to enable to her to await the outcome of her Ministerial Intervention request.

3. On 2 December 2013, the Minister for Immigration and Border Protection declined to intervene in the Applicant’s case.  On 7 January 2014, the Applicant submitted an application for a Protection (Class XA) visa.  The Applicant claimed to fear harm relating to her former husband, who was in India and who, she claimed, was a drug addict.

4. The Applicant did not attend an interview with the Delegate.  The Delegate refused the visa on 28 April 2014.  The Applicant sought review of that decision with the Tribunal on 13 May 2014. 

5. The Applicant appeared before the Tribunal on 13 October 2014 pursuant to an invitation to attend the hearing and to give evidence and present arguments.  She submitted medical documents in relation to her husband after the hearing and on 22 October 2014. 

6. The Tribunal afforded the Applicant procedural fairness. Its hearing invitation to the Applicant complied with all of the statutory and regulatory requirements as set out in ss.425, 425A, 426, 426A, 441A, 441(c) of the Migration Act 1958 (Cth) (‘the Act’) and reg.4.35B of the Migration Regulations 1994 (Cth).

7. At the hearing the Tribunal canvassed with the Applicant all of the issues dispositive of the review and discharged its obligations under s.424AA of the Act relating to notes taken at a compliance interview conducted with the Applicant on 16 December 2013.

8. The Tribunal said at paragraph 52 of its Decision Record:-

   “The Tribunal put to the applicant adverse information pursuant to s 424AA of the Act regarding her conversation with a compliance officer. Specifically, the tribunal explained that records of her conversation with a compliance officer on 16 December 2013 indicated that the applicant had advised she and her husband had discussed the need for her to return home if her ministerial request was unsuccessful and that she had indicated her husband would pick her up from the airport and that she had a home to return to. The Tribunal further stated that the records indicated that the applicant had not raised any matters relating to an inability to return to India. The Tribunal explained that the information was relevant because it may lead it to conclude that her claims of her husband divorcing her and threatening to harm her were not credible. It advised that the information may lead the tribunal to have doubts about her general credibility and the credibility of all her claims. This may lead the tribunal to doubt that she faces a real chance of serious harm or a real risk of significant harm if the applicant returned to India which may lead the Tribunal to conclude that she is not owed protection obligations. The applicant was advised that if the tribunal relied on this information it would be the reason or part of the reason to affirm the decision to refuse her a protection visa. The applicant was asked whether she would like further time to comment or respond to the information.”

9. The Tribunal accepted that the Applicant’s husband began using drugs as claimed by her in Australia, which affected his ability to work, and that he suffered from health complications in Australia, as evidenced by documentation provided by the Applicant post-hearing.  The Tribunal accepted the Applicant’s evidence that her husband’s drug use and inability to work led her and her in-laws to agree that he should return to India where he resides with his family.  The Tribunal also accepted that the Applicant continues to be legally married to her husband and that the couple’s daughter resides with the husband’s family.

10. The Tribunal said at paragraphs 68 and 69 in its Decision Record:-

    “68. The Tribunal has sympathy with the applicant’s situation in India.  However, having regard to all the evidence before it the Tribunal does not accept that there is a real chance that the applicant will face serious harm at the hands of her husband, her husband’s family, her own family or anyone else for a Convention ground if she returns to India now or in the reasonably foreseeable future.  Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution if she returns to India.

    69. Having regard to the evidence before it and its findings of fact, the Tribunal further is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that she will suffer significant harm.”

11. Such findings were open to the Tribunal on the material before it. 

12. The application fails to raise an arguable case for the relief claimed.  It shall be dismissed with costs following the event.

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

Associate: 

Date:  27 October 2015