MZZQB v Minister for Immigration

[2013] FCCA 2340

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZQB v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2340

Catchwords:
MIGRATION – Application in a case to reinstate dismissed application for review – explanation for non-appearance – whether substantive application has reasonable prospects of success – application in a case dismissed.

Legislation:  

Migration Act1958, s.422B
Federal Circuit Court Rules 2001, r.13.03C

Minister for Immigration and Ethnic Affairs v Wu Shan Ling (1996) 185 CLR 259;
Nahi v The Minister for Indigenous and Multicultural Affairs [2004] FCA FC 10
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant: MZZQB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1201 of 2013

Judgment of: Judge Jones

Hearing date: 29 November 2013

Date of Last Submission: 29 November 2013

Delivered at: Melbourne

Delivered on: 29 November 2013

REPRESENTATION

Applicant appearing in person

Counsel for the First Respondent: Ms Whittemore

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application in the case filed by the applicant is dismissed. 

2. The applicant is to pay the respondent costs in amount of $3,926.00 within 21 days of this order. 

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1201 of 2013

MZZQB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from the transcript)

1. This decision concerns two applications in a case. The first, filed on 25 October 2013 by the first respondent for costs of $3,326.00 in relation to a show cause hearing on 18 October 2013 where I dismissed the applicant’s application for judicial review by the applicant pursuant to r.13.03C of the Federal Circuit Court Rules 2001 (“the Rules”) on the basis there was no appearance on or behalf of the applicant. (orders made 18 October 2013)

2. The second application in a case filed by the applicant on 8 November 2013 seeks an order setting aside the orders made 18 October 2013 and the matter reinstated.

3. I will first deal with the applicant’s application in a case. As I indicated to the applicant at the commencement of the proceedings, in deciding whether to grant her application I must consider, first, her explanation for non attendance on 18 November 2013 and, secondly, whether she has reasonable prospects of success in her principal application.

4. Turning first to the explanation for her non attendance, the applicant has stated today that she was 15 minutes late but she was in court. She stated that she lives in Swan Hill and it is far away. The respondent says that the applicant has not provided any details of why she was, in fact, late. That is, whether there were any public transport issues and why she didn’t catch an earlier train. I am prepared, given the conclusions I have reached in relation to her substantive application as to its prospects of success, to find the applicant has provided a satisfactory explanation.

5. Turning next to whether the applicant’s principal application for judicial review has reasonable prospects of success I firstly note that the applicant is a citizen of India born 18 August 1987. On 9 July 2012 she applied for a Protection (Class XA) visa after arriving in Australia on 8 June 2012 on a visitor’s visa. In her application she claimed she feared she would be killed by her husband and her husband’s family and the Panchayat of his village if she returned to India. In a statement attached to her application she stated and I summarise (CB at p.27 to 28):

   a)That in 2007 a marriage was arranged for her by her parents;

   b)After two months of marriage she got pregnant;

   c)Her husband and mother-in-law started demanding, from her father, money so they could start a business;

   d)Her father was not rich;

   e)Her father paid 200,000 rupees two or three times to her husband and mother-in-law and said to them that he couldn’t afford to pay anymore. They started assaulting her all the time, even when she was pregnant;

   f)A baby boy was born on 11 December 2007;

   g)Two months after the birth her husband and mother-in-law took the baby away from her and would not let her feed or touch the baby until she got another 200,000 rupee from her father.  She refused and they hit her with a stick and would not let her leave the house;

   h)After one and a half years she went to the local police station to complain. They made notes and then interviewed her husband at his home. One of the constables told her as they were leaving she should be ashamed;

   i)She was then hit by the husband and mother-in-law and was bleeding with scars over her. Her husband and mother-in-law threw her out of the house;

   j)She called her father, he collected her and she went back to live with her parents.  She couldn’t eat for two days;

   k)After one week members of her husband’s village Panchayat came to her father’s house and said, unless he gave her husband all the money he asked for, her family would be banned from having a relationship with anyone in the family’s village;

   l)After one month her family was ostracised in the village so after six months her father sold their home very cheap and they moved to another village;

   m)She tried to get a divorce spending 80,000 rupee but was unsuccessful as were her attempts to see political leaders and social organisations;

   n)Her family received threatening phone calls and someone attacked her home;

   o)So she applied for a passport in 2010; and

   p)An Australian visa in 2012.

6. On 23 July 2012 a delegate of the first respondent refused to grant the protection visa. On 19 December 2012 the applicant applied for a review of this decision. She was invited to attend a hearing of the Tribunal and on 4 July 2013 the Refugee Review Tribunal (“the Tribunal”) affirmed the delegate’s decision (CB at p.79 to 92). At paragraph [42] of the decision (CB p.87), the Tribunal clarified the applicant’s claim for a protection visa and I quote from that paragraph as follows:

   “The Tribunal asked the applicant if she was claiming that she feared that she would be persecuted on return to India based on the financial demands made on her family by her in-laws.  The applicant stated this was correct.  The Tribunal asked if there were any other grounds that the applicant feared returning to India.  The applicant did not disclose any other claims.”

7. The Tribunal’s findings commence with a consideration of the applicant’s credibility. The Tribunal firstly stated ([45], CB p.88) that it was aware of the importance of adopting a reasonable approach in the finding of credibility. Then it commenced to consider the issue of the applicant’s evidence and her credibility as follows:

   “47.…The Tribunal raised with the applicant a number of discrepancies with the evidence that the applicant had provided to the Tribunal during her application.  The most evident issue with the evidence of the applicant is her complete inability to recall dates of events that have occurred, and inconsistencies that arise from the provision of the limited dates that she has provided. The Tribunal stated that it did not need precise dates of events, even the year of an event would suffice. The applicant was unable to provide even a year which, given that the events that the applicant claimed occurred in a period from 2007 to leaving India in 2012, is not that long ago.

   48.The Tribunal’s concern is present with regard to the birth of the applicant’s child. The applicant was unable to explain how a healthy child was born only 5 months after the stated date of conception. The applicant could not explain the discrepancy. The discrepancy causes the Tribunal to question the timeline of further events that the applicant claims occurred.

   49.The applicant was unable to state when her father made

   
   

   100 000 Rupiah payments to her in-laws.  The applicant was unable to state when she went to the police to complain about her treatment. The applicant was unable to provide details as to when she left her husband and returned to her parents. The applicant was unable to provide details as to when she sought a divorce from the local court. The Tribunal considers the failure to give even rough dates or details of events as implausible.

   50.There are further discrepancies with the evidence of the applicant. The Tribunal questioned the applicant about the provision of money by the applicant’s father to her in-laws, given the limited means that he had, including at the time of providing a dowry. The applicant had no explanation as to why the in-laws sought money from an impecunious family. The applicant had no explanation as to where her father got the money she claimed he had provided to the in-laws.”

8. The Tribunal then dealt with the applicant’s explanation about her treatment in the home of her in-laws and questions why, if the in-laws were money-seeking individuals, they would deliberately keep the baby boy from the applicant at a financial cost to themselves.  At paragraph 51, the Tribunal stated, and I quote:

   “…The Tribunal does not accept that the in-laws would act in such a way to punish the applicant to their own financial detriment.”

9. The Tribunal at paragraph 52, pointed out the inconsistency between evidence given to the Tribunal about the departure from her husband’s home in which she said she had escaped and her statement that she had been thrown out by her husband. The tribunal noted this inconsistency was not explained by the applicant.

10. The Tribunal also noted at paragraph 53 that the applicant could not explain discrepancies as to who came to her home in her village to demand money.  The Tribunal noted she denied her previous statement that Panchayat members from her husband’s village had come to her home and that she now claimed that it was her own Panchayat who was involved in the financial demands.  The Tribunal stated the applicant could not explain why the Panchayat from her own village would be so involved.

11. At paragraph 54 the Tribunal noted the inconsistent evidence given by the applicant as to what happened to her family, and it pointed out that at the beginning of the hearing the applicant stated that her family remained in the family home, but she later stated that they were boycotted by the village and forced to sell the family home.

12. At paragraph 55, the Tribunal deals with the divorce application. The applicant’s evidence was that the Panchayet had become involved in some way and that money had been paid to make her family lose. The Tribunal pointed out that this was inconsistent with a family who was trying to get money from her own family.  The tribunal said this and I quote:

    “The Tribunal does not accept this explanation as it implausible that her husband’s family would pay money to disrupt a divorce proceedings for the purpose of punishment or further extortion, given they had initiated the separation.”

13. At paragraph 56, the Tribunal stated that the applicant was unable to explain how the threats were made to her family.  It then noted that the applicant stated that the in-laws had actually delivered the child to her parents in about September 2012, and he remains in their care. The Tribunal notes that when it pointed out that this further limited the ability of the in-laws to get money, the applicant stated that she did not trust him, that there was a plan to get her to come home and harm her. The Tribunal stated it did not accept this explanation.

14. At paragraph 57, the Tribunal stated that given the inconsistencies in the evidence as provided by the applicant, the gaps in the information, changes in account and implausible elements, the tribunal sought to determine if there was any medical reason for the applicant’s evidence.  The Tribunal noted that the applicant stated that there was a lot of tension, and this explained her discrepancies.  It noted that she stated that she had been tortured when she returned to the village. The Tribunal noted there were no other medical interventions for the injuries suffered and no medical reports were presented by the applicant. It concluded, and I quote:

    “…The Tribunal does not accept that the applicant’s evidence to the Tribunal was affected by any medical condition.”

15. Finally, the Tribunal stated at [58] (CB p.90), and I quote:

    “The Tribunal is not satisfied that the applicant is a credible witness.  As detailed above, the significant inconsistencies in the evidence as provided, the implausibility of the claims as made, the lack of detail, even at the most general level, about when events occurred, leads the Tribunal to determine that the claims of the applicant are not genuine.”

16. The Tribunal went on based on its credibility findings to make findings of fact, and they begin at [59] (CB p.90) as follows:

    “The Tribunal finds that the applicant and her family have not been in a financial dispute with her husband or her in-laws, that the applicant or her family have not been mistreated because of any dispute with her husband or her in-laws, and that the applicant or her family does not have any reason to have concern with her husband or her in-laws for financial reasons in the future. The Tribunal finds that the applicant or her family have no reason to have concern from the authorities arising out of a financial dispute with her husband or her in-laws. The applicant has not claimed any other reason for fearing harm in India.”

17. On the basis of these findings of fact, the Tribunal stated that it was not satisfied that the applicant had a well-founded fear of persecution for a Convention-based reason, nor that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant returning to India, there is a real risk she will suffer significant harm. The Tribunal therefore found the applicant did not satisfy the relevant criteria under the Act and consequently affirmed the decision of the delegate of the Minister not to grant the protection visa.

18. The application for judicial review filed on 31 July 2013 included as a ground for review:

    “I think RRT Tribunal and Department of Immigration did not look my situation.”

19. In her affidavit filed on the same date, she relevantly stated:

    “I am not happy with these decision.”

20. As the applicant was self-represented, I explained to her the nature of these proceedings and what I must consider and also the nature of the judicial review compared to a merits review undertaken by the Minister’s delegate and the Tribunal.

21. I asked her to explain her grounds. She stated that, firstly, there were some inconsistencies in her interviews, and she asked the Tribunal to review her case again. The applicant had difficulty answering what it was about her situation that the Tribunal did not look into. She said that she told the Tribunal she was confused, but the Tribunal did not believe her. She stated she did not understand the questions they asked, that she needed a lawyer to help her, and that is why she needed time. She also stated that she was suffering a toothache at the Tribunal hearing.

22. When I asked the applicant whether she had requested the Tribunal to adjourn the hearing, to get a lawyer, she said no, and when I pointed out to the applicant that the Tribunal had asked her about her medical condition, and she had not referred to a toothache, the applicant said, “The toothache happened some time later.”

23. I turn to the first respondent’s submissions as to the prospects of success of the applicant’s principal application. The respondent submits that there’s not sufficient merit to warrant an application being reconsidered. The Tribunal did look at the applicant’s claim in some detail. The Tribunal provided cogent adverse credibility findings, made against the applicant based on significant inconsistencies and implausibilities, and rejected her claims.

24. The Minister submits that, as the Tribunal rejected the factual basis of her claims, the Tribunal did not find that there is a well-founded fear of persecution, nor a risk of significant harm. The first respondent, submits that there is no jurisdictional error evident in the Tribunal’s decision, that the complaints of the applicant in relation to the inconsistencies do not rise above impermissible merits review. All the findings were available to the Tribunal on the evidence before it. As there are no prospects of success, there is no utility in reinstating the matter, and the applicant’s application should be dismissed.

25. I now turn to consider the applicant’s application for judicial review in the context of whether there would be any reasonable prospects for success. Turning first to the issue raised by the applicant as to her medical condition at the Tribunal hearing, I am unable to find that there is any probative evidence at all that she was affected by a medical condition which had an adverse effect on her capacity to give evidence. As the first respondent has pointed out, the Tribunal took the unusual step to inquire of the applicant her medical circumstances. She referred to the tension that she suffered, but there was no medical evidence before the Tribunal as to any impact on her ability to give evidence.

26. As to the applicant’s claim that she needed a lawyer to assist her because she couldn't understand the questions, the applicant has stated that she did not apply for an adjournment on that basis, and I therefore find that there was no unfairness to the applicant in the way the Tribunal conducted its hearing. I am satisfied the natural justice hearing rule, which has been codified by s.422B of the Migration Act1958 (“the Act”), was complied with.

27. It appears to the Court, as far as I can ascertain, that the applicant is simply unhappy with the outcome of the Tribunal’s decision. She could not identify any part of her situation that the Tribunal did not consider and, as is apparent from the extracts from the Tribunal decision that I have referred to earlier, there was a detailed consideration of her situation by the Tribunal. It appears to the court that as a result the applicant is simply seeking a review of the merits of her application, which is not a function of this Court: MIEA v Wu Shan Liang [1996] 185 CLR 259; and Nahi v The Minister for Indigenous and Multicultural Affairs [2004] FCA FC 10 at [10].

28. As to the credibility findings, I am satisfied that the credibility findings were open to the Tribunal. In W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703, the majority stated at [64]:

    “The tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding.”

29. I also refer to the decision in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407, where McHugh J stated at [67]:

    “If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the tribunal's view that it was inherently unlikely that the events had occurred as alleged.

30. It is apparent that I am satisfied that the decision of the tribunal discloses no jurisdictional error.  Consequently, I find that the applicant would have no reasonable prospects of success, if her case were reinstituted.  I therefore dismiss her application in a case. 

1. In relation to the application of costs, the respondent seeks costs in the amount of $3,326 for the first hearing on 18 October 2013, and $600 for today’s hearing so far as it concerns the application in the case by the applicant.

2. The costs sought are fixed in accordance with Schedule 1, Part 3, Division 1 of the Rules. I am satisfied that the costs were reasonably incurred. I therefore award costs. My orders therefore are, the application in the case filed by the applicant is dismissed and the applicant is to pay the respondent costs in amount of $3926.00 within 21 days of this order

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate: 

Date:  4 February 2014