MZZLQ v Minister for Immigration

[2014] FCCA 877

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZLQ v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 877

Catchwords:
MIGRATION – Application for review of a decision of the Refugee Review Tribunal – Applicant claimed Refugee Review Tribunal took into account irrelevant matters and gave insufficient weight to others – unreasonable refusal to adjourn proceedings – no jurisdictional error found – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.424AA

Minister for Immigration and Citizenship v Li [2013] HCA 18

Applicant: MZZLQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 771 of 2013

Judgment of: Judge Whelan

Hearing date: 4 April 2014

Date of Last Submission: 4 April 2014

Delivered at: Melbourne

Delivered on: 4 April 2014

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the Respondents: Ms Gordon

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The Application filed 30 May 2013 be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 771 of 2013

MZZLQ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As revised from Transcript)

Introduction

1. This is an application for review of a decision by the Refugee Review Tribunal (“the Tribunal”) made on 30 April 2013. That decision affirmed the decision of a delegate of the Minister to refuse to grant the Applicant a protection visa.

2. In her application, the Applicant seeks the following orders:

   ·An order that the decision of the Tribunal be quashed;

   ·A writ of mandamus directed to the Tribunal requiring it to determine the Applicant’s application according to law; and

   ·A third order, which is not relevant to this application.[1]

   [1] Application filed 30 May 2013, at p.3.

Background

1. The Applicant is an Indian national. She arrived in Australia in December 2007 on a student visa to live with her now ex-Husband.

2. The Applicant and her ex-Husband had purportedly been married in India in 2005, but upon her arrival in Australia, the Applicant found out that her ex-Husband was already married to someone else. Upon his divorce from that person, the Applicant and her ex-husband were married in June 2010. They were divorced in September 2012.

3. The Applicant lodged an application for a protection visa in which she stated that she felt in fear of harm at the hands of her ex-Husband,

   
   

   his relatives and friends, and that this was her reason for seeking a protection visa.

4. A delegate of the Minister refused the application for a protection visa on the basis that the Applicant did not fear harm for a

   
   

   convention-related reason.

5. On 11 April 2012, the Applicant lodged an application for review of the delegate’s decision by the Tribunal. There was an initial hearing on

   
   

   12 July 2012 at which the Applicant and a Mr LS gave evidence.

   
   

   There were also written submissions provided to the Tribunal by the Applicant’s representative.[2] Further materials were lodged with the Tribunal by the Applicant on 26 July 2012.[3]

   [2] Court Book filed 20 August 2013, at pp.68-75.

   [3] Ibid, at pp.128-162.

6. Some six months later, the Applicant was invited for a further hearing. On 26 February 2013, following that invitation, the Tribunal received a letter and a statutory declaration from Mr LS.[4] He stated that his relationship with the Applicant had ended and that he no longer claimed that the Applicant’s departure from Australia would cause him harm.

   [4] Ibid, at pp.166-167.

7. On 1 March 2013, a second hearing took place at which the Applicant gave evidence. On 10 April 2013, a third hearing took place at which the Applicant gave evidence and Mr LS also gave evidence, at the request of the Tribunal. The Applicant was then given a further seven days to provide additional submissions.

8. On 30 April 2013, the Tribunal handed down its decision, and on

   
   

   30 May 2013, the Applicant lodged this application for judicial review. 

The Tribunal’s decision

1. The Tribunal, in its decision, did not accept that there was a real chance that the Applicant’s ex-Husband, or any person associated with him, would seek to harm the Applicant if she returned to India, now or in the reasonably foreseeable future.

2. The Tribunal accepted that the Applicant’s past relationship with her ex-Husband had been characterised by deceit, exploitation and abuse, but further found that the Applicant had no ongoing contact with him and, in July 2012, had withdrawn an intervention order against him.

3. The Tribunal did not accept that Mr LS had been threatened by the Applicant’s ex-Husband, as those threats had not been reported to the police and neither Mr LS, nor the Applicant, had mentioned the threats prior to March 2013.

4. The Tribunal did not accept that the Applicant’s family in India had been threatened by a member of her ex-Husband’s family.

   
   

   The Applicant’s mother had submitted two affidavits in her support, neither of which mentioned any threats. Further, the Tribunal found that the ex-Husband had always lived in the United Kingdom or Australia, and had no close relatives in India.

5. For those reasons, the Tribunal did not consider that the Applicant was a person to whom Australia owed protection.

Grounds for review

1. The Applicant, in the grounds of her application, states as follows:

   1.  I am entitled to expect a dicision (sic) according to law.

   2.  I am entitled to expect a decision according to reason.

   3.  I am entitled to expect the RRT to be reasonable.

   The RRT failed on all 3 grounds.[5]

   The Applicant, in her affidavit,[6] goes on to particularise those grounds. She referred to the Tribunal taking into account irrelevant factors concerning her relationship with Mr LS and the Tribunal failing to take into account the nature and history of her relationship with her

   
   

   ex-Husband. 

   [5] Application filed 30 May 2013, at p.3.

   [6] Affidavit filed 30 May 2013.

The Applicant’s submissions

1. The Applicant states that a failure to deal with a claim, either expressly or impliedly, is a failure by the Tribunal to fulfil its obligation to review the application.

2. The Applicant submitted that, in failing to provide more time to the Applicant to prove her claim that her ex-Husband was dangerous and a violent misogynist, the Tribunal failed to deal with an essential integer of her case. The Applicant had requested an extension of time of 90 days which the Applicant says was unreasonably refused.

   
   

   The Applicant referred to the relevant tests for determining unreasonableness.

3. The Applicant stated that the main issue is that the violence she anticipates will be coming from her ex-Husband and/or his friends and relatives in India cannot be deflected because of the lack of protection which the Indian system could afford her. Had the Tribunal allowed the Applicant more time, she could have satisfied them that her

   
   

   ex-Husband was truly a person to be feared and posed a threat to her in India where he had family and owned property. The Applicant submitted that an unreasonable refusal of an adjournment of the proceedings will not just deny a meaningful appearance to an Applicant, but it will mean that the Tribunal has not discharged its core statutory function of reviewing the decision.

4. An unreasonable refusal of an adjournment would mean that the Tribunal had not conducted its review function in a way which was fair. The preceding statements were supported by quotes from the decision of Minister for Immigration and Citizenship v Li [2013] HCA 18 (“Li”). 

The First Respondent’s submissions

1. In response, the First Respondent submits that the application ought to be dismissed. By reference to the Court Book[7] and to case law, the

   
   

   First Respondent submits the following:

   ·To the extent that the Tribunal referred to the Applicant’s relationship with Mr LS, that was in response to submissions made by the Applicant and did not involve taking into account any irrelevant consideration. Further, neither the relationship, nor its cessation, was the basis for the Tribunal’s key findings of fact;

   ·The Tribunal did take into account the nature and history of the Applicant’s relationship with her ex-Husband; and

   ·The Tribunal’s refusal of the Applicant’s request for an extension of time was not unreasonable. 

   [7] Court Book filed 20 August 2013.

Conclusions

1. Having read the written submissions and heard from both parties, my conclusions are as follows.

2. With respect to ground one, Mr LS provided three statutory declarations to the Tribunal dated:

   ·12 July 2012;[8]

   ·13 February 2013;[9] and

   ·13 March 2013.[10]

   The third statutory declaration raised claims that the circumstances in which his relationship with the Applicant ceased included that he had received threats from the Applicant’s ex-Husband and friends.

   
   

   Such evidence was material to the Applicant’s claims and was relevant because the Applicant sought to rely on it. As it was, the Tribunal rejected the evidence of Mr LS that he had been threatened by the Applicant’s ex-Husband and friends. Those conclusions by the Tribunal were findings of fact which the Tribunal was entitled to make. 

   [8] Ibid, at pp.126-127.

   [9] Ibid, at p.167.

   [10] Ibid, at p.203.

3. The Tribunal’s conclusions about the likelihood of the Applicant suffering harm at the hands of her ex-Husband or his friends are contained in paragraph 119 of the Tribunal’s decision.[11]

   
   

   The conclusions concerning the threats claimed to be made to Mr LS were just one of a number of factors referred to by the Tribunal.

   
   

   I am not satisfied that ground one is made out.

   [11] Court Book filed 20 August 2013, at pp.239-241.

4. At paragraph 107 of the Tribunal’s decision,[12] the Tribunal states as follows:

   The Tribunal accepts the applicant’s evidence that her relationship with [her ex-husband] was exploitative and abusive and that she suffered physical and emotional violence from him. 

   [12] Ibid, at p.237.

5. It is clear, from paragraphs 105 to 112 of the decision,[13] that the Tribunal accepted the Applicant’s evidence that her ex-Husband was a bigamist, and that he was violent and had assaulted her. It found, however, that there was not a real chance that he, or any other person associated with him, would seek to harm the Applicant if she returned to India now or in the reasonably foreseeable future. This was a finding open to the Tribunal to make on the material before it. It does not indicate that the Tribunal failed to give sufficient weight to the Applicant’s evidence about her ex-Husband’s behaviour and history.

   
   

   It was a conclusion that it did not accept that he would now pursue her in India if she was to return there. 

   [13] Ibid, at pp.236-238.

6. With respect to the third ground, which deals with the failure to grant an extension of time, I consider the following to be relevant:

   ·The Applicant applied to the Tribunal to review the decision of the delegate on 11 April 2012. From the outset, the behaviour and history of her ex-Husband was a significant factor in the Applicant’s claim. On several occasions, between July 2012 and April 2013, the Applicant was given the opportunity to make written and oral submissions to the Tribunal. This included additional time being given at her request following the second Tribunal hearing date to respond to matters put to her under s.424AA of the Migration Act 1958 (Cth) (“the Act”). At the conclusion of the third hearing day, another seven days were allowed to the Applicant to provide further written submissions; and

   ·

   The request for a 90-day extension of time was made in a submission by the Applicant’s representative on 13 March 2013. The purpose stated was to obtain relevant documents from the United Kingdom and India, as well as Australian Immigration records, to prove that her ex-Husband was untrustworthy and posed a threat to the Applicant based on his past behaviour and intentions. The Tribunal substantially accepted the Applicant’s evidence concerning her ex-Husband’s past behaviour. It is not clear what documentary evidence the Applicant might have obtained to prove his intentions. This matter is not one where the Applicant made a request for a specific purpose which was concrete and could affect the outcome of the Tribunal’s determinations. It is not on all fours with the decision in Li,

   
   

   the facts of which were outlined by the First Respondent in oral submissions.

7. For these reasons, I am not satisfied that any of the grounds advanced by the Applicant establish jurisdictional error on the part of the Tribunal. The application is therefore dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate: 

Date: 29 April 2014