MZARS v Minister for Immigration
[2016] FCCA 2419
•29 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZARS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2419 |
| Catchwords: MIGRATION – Application for judicial review – protection visa – no matter of principle – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.424AA, 36(2)(aa) |
| Cases cited: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 |
| Applicant: | MZARS |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 253 of 2015 |
| Judgment of: | Judge Jones |
| Hearing date: | 29 August 2016 |
| Date of Last Submission: | 29 August 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 29 August 2016 |
REPRESENTATION
| Counsel for the Applicant: | Self-Represented |
| Solicitors for the Applicant: | Self-Represented |
| Counsel for the Respondents: | Ms Maddocks |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The name of the Second Respondent be amended to the ‘Administrative Appeals Tribunal’.
The application for judicial review filed on 11 February 2015 be dismissed.
The Applicant pay the First Respondent’s costs fixed in the amount of $5,300.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 253 of 2015
| MZARS |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for judicial review of a decision of the then Refugee Review Tribunal (“the Tribunal”) dated 28 January 2015, affirming a decision of a delegate of the Minister for Immigration and Border Protection (“the Minister) not to grant the Applicant a Protection (Class XA) visa (“the protection visa”).
The Applicant is a female citizen of India, born on 2 February 1981. She arrived in Australia on 20 March 2009 on a student visa, and following the expiry of her student visa, she obtained a second student visa on 25 August 2011. The second student visa expired on 14 June 2012 and the Applicant did not obtain a further substantive visa. It is relevant to note, in November 2013 she applied for a waiver of the “No Further Stay” condition on her second student visa, so that she could apply for a partner visa, on the basis of her relationship with her second husband. The second waiver request was refused by the Department of Immigration and Border Protection (CB 69-74). A history of this matter is set out in the Tribunal’s decision record at CB 213 at [11]-[13].
The Applicant applied for a Protection visa on 11 March 2014. Since the Applicant has applied for a Protection visa, it is appropriate to first deal with her claims for protection, which she set out in her statutory declaration that she attached to her application for a Protection visa.
In summary, her claims can be described as follows: firstly, she had an arranged marriage in India to a man from a prominent Indian family. Secondly, after arriving in Australia on a student visa, he revealed himself to her to be an addict. She says he had an addiction to drinking, illicit drugs and gambling. She claims that during the relationship he physically abused her if she did not give him her earnings for him to gamble with. Thirdly, she claims that when she told her parents, they spoke to his parents about the matter, which made her husband’s behaviour worsen. Fourthly, she did not tell the police in Australia about her husband’s behaviour, because she believed that her student visa might be affected if she reported this abuse. She claims that her parents were threatened by his parents, and that her parents were forced to change their location. Fifthly, she claims that he divorced her in 2011 – it appears they separated earlier than that – and he returned to India, but that he continues to harass her by mobile phone calls and has threatened she will face “dire consequences” if she returns to India. She says that this is continuing to date.
She claims that women in India, including married women, are not safe from abuse. She includes in her statutory declaration links to articles about women being attacked in India. She claims she would receive no protection from the Indian authorities, because her husband’s family have political and police connections. She claims that she believes her ex-husband will kill her if she returns to India.
In addition to these claims and evidence, she provided various text messages, six in all, translated into English, which were sent by her husband to her in 2010, demanding the return of money (CB 78-88). She also provided evidence which appears to be relevant to her student visa (CB 104-151).
There was a Tribunal hearing on 27 January 2015 and the Applicant attended with the assistance of an interpreter in the Punjabi and English languages, as well as her authorised representative.
The Tribunal described the Applicant’s claims at [16] (CB 213) and also at [21] (CB 214). At [16], the Tribunal referred to the claims in her statutory declaration and at [21], just immediately after the heading “Assessment of claims”, the Tribunal summarised her claims as follows:
The applicant fears harm at the hands of the ex-husband because they are now divorced and she refuses to provide him with any money. I asked the applicant at the hearing if she feared harm from anyone else in India. She stated she did not.
The Tribunal’s findings essentially flowed from the Tribunal’s adverse view of the Applicant’s credibility. The Tribunal stated its general position at [22] (CB 214), as follows:
I found the evidence provided by the applicant at the hearing in support of her claims vague and generalised. As I advised the applicant at the hearing, I have for the following reasons significant doubts about the credibility of the applicant’s claims to have suffered harm at the hands of the ex-husband in the past and her claims to face a risk of harm generally at the hands of the ex-husband or anyone else.
I will now go through the reasoning of the Tribunal, including the reasons why it formed a general view that the Applicant was not to be believed, in terms of her claims of past harm and future harm. The first reason the Tribunal gave was at [23] (CB 214), and this involved “the substantial inconsistency” between what the Applicant stated in a statement provided with the Protection visa application about the harm she had suffered in the past at the hands of the ex-husband and what she told the Tribunal at the hearing.
The inconsistency identified by the Tribunal was that in her statutory declaration, the Applicant referred to the fact that the abuse from her ex-husband commenced after they came to Australia, whereas at the Tribunal hearing, she stated that she had only been physically harmed by her husband once, when he slapped her twice on the face in India, before they came to Australia, and that he did not physically harm her after they came to Australia. The Tribunal noted that it did raise this inconsistency with the Applicant, but she provided no real explanation at the hearing.
The next inconsistency relates to the length of time between when the relationship with her ex-husband ended, and when she lodged her application for the Protection visa. At [24] (commencing at CB 214), the Tribunal said:
The length of time between when the applicant claims her relationship with the ex-husband ended and when she lodged her protection claims is inconsistent with her claimed fears.
The Tribunal referred to the fact that the Applicant said at the hearing her evidence was that she told the registered Migration Agent, who had assisted her with her waiver request in relation to a student visa, about her fears of harm at the hands of her ex-husband. The Tribunal said regarding this evidence (CB 215 at [24]):
I do not accept that the registered migration agent would have deliberately chosen not to include a reference to the applicant’s fears in the first waiver request if the applicant had advised the registered migration agent about them.
The Tribunal went on to say that it found that it was much more likely that the waiver request included no reference to the Applicant’s fears of harm at the hands of her ex-husband, because she did not tell the registered Migration Agent, and that the reason she did not tell the Migration Agent about her fears of harm was because she did not fear harm at the hands of her ex-husband at the time.
At [25] (CB 215), the Tribunal said “…I give significant weight to the fact that the applicant did not apply for protection between July 2012, when the first waiver request was refused, and October 2013, when she lodged the second waiver request”, and from November 2013 when the second waiver request was refused and when the visa application was lodged in March 2014. As to that delay, the Tribunal said (CB 215 at [25]):
I find that if the applicant genuinely feared harm at the hands of the ex-husband or anyone else in India, she would have lodged a protection visa application either sooner after July 2012 or sooner after November 2013 than she did.
The Tribunal referred to the Applicant’s explanation for the delay at the Tribunal hearing that she did not know about Protection visas, and said that it found this evidence “highly implausible”, essentially, for two reasons. Firstly, the Tribunal said that it found that it is common knowledge among international students that it is possible to seek protection here and, secondly, it found that the Applicant would have been advised of this option when seeking advice from the registered Migration Agent, who had assisted her in respect of her student visas. The Tribunal concluded (CB 215 at [26]):
As a result, I consider the lengths of time when the applicant was without a visa but did not apply for protection to strongly suggest that she did not fear harm at the hands of the ex-husband during those times or at any other time.
The Tribunal then went on to deal with evidence the Applicant had provided by way of text messages referred to earlier in this judgment (commencing at CB 215, at [27]). The Tribunal said that it read the text messages and put to the Applicant, at the hearing, under s.424AA of the MigrationAct1958 (“the Act”), that the translations made no reference to harming the Applicant or threatening to harm the Applicant. The Tribunal noted one text messages sent on 26 April 2010 that said that if the Applicant did not call the ex-husband urgently “otherwise let’s see the results” could be referring to a range of possible consequences, not necessarily that the Applicant would face a risk of harm at the hands of the ex-husband or his family.
The Tribunal referred to the Applicant’s evidence given at the hearing, where she explained that her ex-husband had been very careful about how he worded his text messages to her, because he knew she could show these text messages to the police. The Tribunal went on to note that the Applicant had conceded, during the hearing, that she never contacted the police about the claimed harm and threats of harm she suffered at the hands of the ex-husband.
The Tribunal said that it found it implausible that the ex-husband would avoid threatening the Applicant expressly in the text messages, given she had never contacted the police about his behaviour. Ultimately, the Tribunal said (CB 216 at [27]):
I accept that the ex-husband has demanded money from the applicant and her family during 2010. However, I give these text messages and other statements made in the second waiver request very little weight in assessing whether the ex-husband has harmed the applicant or her family in the past or seeks to harm them in the future.
The Tribunal also went on to state that it gave significant weight to the fact that the (then) current husband of the Applicant did not attend the hearing or otherwise provide any information in support of the Applicant’s protection claims. It noted that in its invitation to the Applicant to attend a hearing, in correspondence dated 1 December 2014, it requested the Applicant to arrange for the husband to be available to give evidence at the scheduled hearing. The husband did not attend, and the Applicant told the Tribunal that the husband would not be attending the hearing in person.
The Tribunal records at [28] (CB 216) that the Applicant was asked if she could contact the husband by telephone. The Applicant responded that she could not, and when asked why not, she replied, “he won’t talk.” The Tribunal said in relation to this:
I find that if the applicant genuinely feared being harmed if she returns to India, she and her husband would have arranged for him to be available to give evidence at the hearing, at least by telephone if not in person, in support of her protection claims, even if he was not aware of the specifics of those claims.
The Tribunal then went on to make its ultimate findings about credibility, and it said (CB 216 at [29]):
In light of the above, my doubts about the credibility of the applicant’s claims are great that I do not accept that the applicant’s claims are true. I find that the applicant has deliberately exaggerated and provided false information about her fears of harm in India. I find that she is not a witness of truth in relation to her protection claims.
That paragraph discloses, in my opinion, that the basis of the Tribunal’s decision or reasoning, affirming the delegate of the Minister’s decision, was very significant adverse credibility findings about the Applicant. It used very strong language such as “deliberately exaggerated” and “provided false information”.
At [30], the Tribunal then went on to state that although it accepted the Applicant’s marriage to the ex-husband ended in divorce, and during 2010 the ex-husband requested that the Applicant provide him with financial support, it did not accept that the ex-husband continues to seek financial support from the Applicant or her family. It stated (at [30]):
I do not accept that the ex-husband has harmed or threatened to harm the applicant or any members of her family at any time, either in India or in Australia. I also do not accept that the ex-husband has contacted or attempted to contact the applicant or any members of her family since 2010.
The Tribunal then noted – and this is relevant to the Applicant’s grounds for review – that during the hearing it asked the Applicant if she could return to India and live with her current husband’s family, whom she had said lived in another part of the Punjab State away from her family and ex-husband. The evidence that the Applicant gave was as follows (CB 216 at [31]):
She replied that the husband’s family did not know about their marriage and that it was an inter-caste marriage. She stated that she and the husband had different religions. I asked the applicant what religion her husband was. She replied that he was not a Sikh. I asked her again what religion he was if he was not a Sikh. She stated that she did not know.
The Tribunal then went on to say, given its credibility findings and the Applicant’s surprising lack of knowledge about the husband’s actual religion, that it found that the Applicant has not made any claims for protection arising from a marriage to the husband and so she would not fear a real chance of suffering harm if she returned to India.
The Tribunal, adopting a cautious approach, then considered the Applicant’s fears, in the context of whether the fears could be treated as a claim arising from the membership of a particular social group (CB 217 at [32]-[33]). The Tribunal noted that the Applicant had not articulated claims related to any of the convention reasons, but was prepared to treat appropriately, in my view, her claim as being one of membership of a particular social group, that is, either divorced women or women victims of domestic violence. The Tribunal had earlier noted that these claims of membership of a social group are generally framed as claims that the person claiming protection would suffer discriminatory denial of protection by security forces.
However, the Tribunal found (CB 217 at [33]-[34]) that the Applicant did not face serious harm, because it had already found that the Applicant did not face serious harm at the hands of the ex-husband or anyone else. There was not a real chance that she would be denied protection from harm, at the hands of the ex-husband or anyone else, by security forces in India, for any reason, if she were to return there in the reasonably foreseeable future.
The Tribunal then made its findings that the Applicant’s claims individually and cumulatively, considering that there was not a real chance that the Applicant will encounter serious harm capable of amounting to persecution at the hands of the ex-husband or anyone else, or in the form of denial of State protection by Indian security forces for any convention reason in the reasonably foreseeable future should she return to India.
The Tribunal then proceeded to consider her claim pursuant to s.36(2)(aa) of the Act. Its consideration is short. However, I am satisfied that the manner in which it considered the criterion, in what is referred to as the complementary protection section of the Act, was sufficient in light of its absolute disbelief of the Applicant’s claims and its significant adverse credibility findings. The Tribunal said (CB 218 at [38]):
In light of my findings set out above in relation to the applicant’s claims to have a well-founded fear of being persecuted for a Convention reason, I do not accept that there is a real risk of the applicant suffering any form of significant harm at the hands of the ex-husband, the Indian security forces or anyone else.
It then proceeded to say that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to India, there was a real risk she will suffer significant harm (these being a repetition of the complementary protection provisions).
The Applicant appears today by herself. She is self-represented and was assisted by an interpreter in the Punjabi and English languages. However, it became clear very early in the hearing that she has a very good command of English. I suggested – and she confirmed this would be an appropriate approach – that where she required something to be interpreted, she could inform the Court that she did not understand and request assistance from the Punjabi interpreter. She did this on occasions, but largely responded in English.
Her grounds for review set out in her application are numerous. They amount to 22 grounds in total. They are as follows:
1. I am seeking further review at Federal circuit court under the s.476 of the Migration Act 1958
2. According to s.65 of the Migration Act 1958, I am eligible for protection visa onshore Australia.
3. I have applied the visa on 11 March 2014 and the delegate refused to grant the visa on 16 May 2014.
4. I have lodged a valid application for review of the delegate’s decision with the tribunal on 2 June 2014
5. I am a 33-year-old woman, born in sikh family from Punjab State, India. I am holding Indian citizenship.
6. I am married to my husband from India by paying dowry of 15 lakh to my husband parents.
7. I was granted student visa on 24 February 2009. And I had arrived to Australia on 20 March 2009 and again I was granted a second student visa on 25 August 2011, which expired on 14 June 2012.
8. During my student visa tenure, I have never been to my home country due to conflict between my husband and I.
9. Ex-husband and I divorced in April 2011, and never met each other, even before divorce we rarely met each other or lived together by having a physical relationship.
10. Due to my ex-husband and threatening from my community as well as my in-laws family, I am alone myself without my parents, parents passed away in India. Lack of support from the parents I wasn’t able to continue studies and totally I was in introspection for what to do in the future.
11. I am alone here where I can’t go to India and nor stay in Australia as I have no visa left or apply for another visa because of I have 8534 condition on visa previously granted.
12. And further I have been married to Australian permanent resident (present -husband) on 19 July 2013 and we both try to apply for waiver but we could not get the waiver done due to some reason, finally the relationship come to end and situation made me to apply divorce.
13. For the reasons given above, I will satisfy protection obligations under the Refugees Convention. Applicant does satisfy the criterion set out in s.36 (2) (a) and I also would satisfy the criterion obligations under s.36 (2) (aa).
14. It is barely shown that I have well-founded fear of being persecuted in India for reasons of my race and in -family members who related sikh fanatic group;
15. And also I do have real risk to my life as they will kill me somehow as my ex-husband and family members could do anything in India as they are rich and dangerous belonged to.
16. As I am satisfying the criterion of refugee onshore Australia I am begging the Federal circuit court to re look the decision of Refugee review tribunal and kindly give legitimate decision.
17. Even Article 33(1) of the Refugees Convention, Australia has an obligation not to expel me as my freedom in endanger by other majority religion.
18. Human Rights are so tangled that I won’t get any justice back in India if I go back to.
19. Even my family members or other peer groups also weak in India as they could not help me.
20. So my situation will connect to criterion by S.36 of migration regulations 1994 “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, unwilling to return to it”.
21. My family suffered with same problems in India following how I am suffering, I will be killed when I return to India.
22. I hope Federal circuit court has got Jurisdiction in this matter.
By and large, it is fair to say that the Applicant refers, in the grounds of review, in a sequential form, to matters that she referred to in her statutory declaration and in her evidence to the Tribunal. Some of the grounds were simply that she wanted the Federal Circuit Court to deal with her matter. There was one ground that could be said to give rise to a ground that the Tribunal had failed to consider a claim or an integer of a claim that she had made, and this is ground 14. At ground 14 she says:
It is barely shown that I have well-founded fear of being persecuted in India for reasons of my race and in -family members who related sikh fanatic group;
I take this to be a ground that the Tribunal failed to consider her claim to fear persecution, if she returned to India, because of her race and her inter-caste relationship with her present husband. I will deal with this shortly. However, I will recite the explanation and submissions given by the Applicant at today’s hearing.
I should note that as the Applicant was self-represented, prior to commencing, I explained to her two things. Firstly, the nature of judicial review. I explained to her that the Court’s function was not to engage in the merits of her case. In other words, the Court’s function was not to consider her circumstances and decide whether she should be granted a visa. I informed her that the Court’s function on judicial review is only to decide whether the Tribunal had made a jurisdictional error or, as I described it, a serious legal mistake. I further explained to the Applicant the procedure adopted by the Court, in the hearing.
I then asked the Applicant to explain to the Court why she believed the Tribunal was wrong. She said that her ex-husband had been threatening her and if she returned to India he will kill her. She said that she provided all of the evidence. She referred to the SMS text messages sent by the husband to her in 2010, to which I have already made reference in outlining the Tribunal’s decision. She also said that the husband continues to call at her family’s residence and continues to harass her by mobile phone, and this has not ceased up until now. I asked her if there was anything else that she wanted to say, and she said she did not.
The Minister’s submission, outlines in the Minister’s Outline of Submissions, which were filed on 19 August 2016, is that what the Applicant asks of the Court is to engage in impermissible merits review, which is apparent from the Applicant’s written grounds for judicial review and also from her oral submissions given today. The Minister points out, quite correctly, that the basis of the Tribunal’s decision was, in essence, its very significant adverse credibility findings, and there is no doubt that the credibility findings are regarded by the superior Courts as findings which are the province of the Tribunal to make and not for the Court to intrude on.
The other submission the Minister makes, which is again a correct one, is that the Tribunal was entitled to engage in the evidence and attach to the evidence what weight it wished to do so. Again this is a matter for the Tribunal and not the Court: see Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24, at [41] per Mason J, as he then was.
The Court concurs with the Minister’s submissions that, in essence, the Applicant seeks for this Court to engage in impermissible merits review: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6. The Applicant is asking the Court to simply review her circumstances and decide whether she should be granted the Protection visa. This is not something that the Court may engage in.
I will turn to the question of whether the Applicant made a claim to fear persecution based on her inter-caste marriage before the Tribunal. It certainly was not a claim made in her statutory declaration. There was no reference to that at all. To the extent that this matter arose in the Tribunal hearing, it arose in the context of the Tribunal inquiring of the Applicant whether she could relocate to an area in the Punjab State, where her present husband lived, and this was something the Tribunal was entitled to inquire of, given that if it had accepted the Applicant’s claims to fear persecution, it would be required to consider a question of relocation.
At [31], which I have earlier referred to (CB 216), the Applicant gave evidence that her husband’s family did not know about their marriage, but that it was an inter-caste marriage. The Tribunal noted that the Applicant was unable to identify what the husband’s religion was, but that she was from the Sikh religion.
I do not regard this as a claim that arises or is apparent from the material before the Tribunal: see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263. It was simply a response given by the Applicant about why she could not relocate to live with her current husband’s (at the time of the Tribunal hearing) family in India. It would be, in my view, simply creative interpretation to suggest that such a claim was made before the Tribunal.
So, to the extent that the Applicant has made a claim of judicial review that the Tribunal failed to consider her claim to fear persecution on return to India, because of her family members’ relationship to Sikh fanatic groups, I reject this on the basis that no such claim was apparent on the material before the Tribunal. Consequently, the Tribunal was not required to deal with this matter.
In conclusion, I am satisfied the Tribunal did not engage in jurisdictional error. The Tribunal dealt with all of the Applicant’s claims. It simply found the Applicant’s evidence and claims to be implausible, contrived and otherwise did not believe the Applicant. These adverse credibility findings being something it could make.
The Applicant refers to evidence that she gave to the Tribunal, but the Tribunal considered this evidence. It specifically considered the evidence about the SMS text messages and found that they did not amount to threats of harm.
The other aspect that the Applicant raises is that her ex-husband continues to threaten her by mobile phone up until this date. The Tribunal dealt with this in its general findings, that it did not believe the Applicant’s claims to fear harm. The Tribunal made it clear, on a number of occasions, based on its adverse credibility findings, that it simply did not accept that she was either harmed in the past or that she had a well-founded fear of suffering serious harm from her ex-husband or her ex-husband’s family or indeed anyone in India, should she return to India.
I am not satisfied the Applicant’s grounds of judicial review give rise to jurisdictional error. Consequently I will make Orders to dismiss the Applicant’s application for judicial review, and also Order that the Applicant pay the Minister’s costs.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 16 September 2016