MZALO v Minister for Immigration and Border Protection

1. The appeal be dismissed.
2. The appellant pay the first respondent's costs of and incidental to the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MORTIMER J: 1 The appellant applied for a Protection (Class XA) visa, but her application was refused by a delegate of the first respondent. She was also unsuccessful in her application for review before the then Refugee Review Tribunal. She sought judicial review of the Tribunal's decision in the Federal Circuit Court, which was also unsuccessful: MZALO v Minister for Immigration and Border Protection [2016] FCCA 1071. 2 The appellant's notice of appeal raises four grounds of appeal. She did not file any written submissions in accordance with directions made by the appeals Registrar. 3 A national of India, the appellant's claims for protection centred on abuse she claimed she would suffer in India at the hands of a vindictive man who was the son of her neighbour, who she alleged had tried to kidnap and rape her and who she alleged was politically influential and a "gangster". She also alleged her former husband's attitude towards her was influenced by this man. The appellant entered Australia in November 2006 on a student visa, and was subsequently granted further student visas. She married in Australia. She later divorced her husband after experiencing domestic violence perpetrated by him. 4 The delegate found the appellant did not seek to remain in Australia because of any genuine fears of persecution should she return to India. The basis for this finding is set out in the Federal Circuit Court decision at [10]-[14]. 5 The appellant did not appear in response to the hearing invitation issued by the Tribunal. The Tribunal determined to exercise the power conferred on it by s 426A of the Migration Act 1958 (Cth) to proceed to determine the application for review. It said: 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. 6 The Tribunal dealt with the appellant's claims to fear persecution on return to India. It found there was insufficient material or evidence about the appellant's former neighbour in India, whom she had identified as a likely persecutor. It also found that although the appellant did give evidence about suffering domestic violence at the hands of her former husband (which the Tribunal broadly accepted) the appellant had made no claims to fear harm in India from her former husband, who had residency in Australia. 7 Accordingly, the Tribunal was not satisfied the appellant met the protection visa criteria. 8 On judicial review, the appellant appeared for herself, with the assistance of an interpreter. She did not file any written submissions. However, she described the grounds of review and the nature of her fears to the Court. Although it dismissed her application, the Federal Circuit Court said (at [27]): 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. 9 The appellant failed to appear for the hearing of her appeal when it was called on at 10.15 am. Prior to the hearing, the appellant was provided with the usual notifications about the hearing of her appeal. The Minister's lawyers had sent her the Minister's submissions and the Court book. Over the last two weeks, Registry staff and my associate attempted to contact her on numerous occasions by phone, with a Punjabi interpreter at hand, and by email. On each occasion, there was either no reply or the phone was not answered. 10 On the failure of the appellant to appear at 10.15 am, with both the Court officer and my associate checking to see if she was outside the courtroom, I asked the Minister's legal representative what she submitted should occur. She submitted the Court should dismiss the appeal under s 25(2B)(ba) and (bb) of the Federal Court of Australia Act 1976 (Cth) and r 36.75 of the Federal Court Rules 2011 (Cth). I accepted that submission, and commenced to deliver reasons for judgment, indicating I would pronounce orders at the conclusion of those reasons. When I was some way into my reasons, the appellant came into the courtroom accompanied by a member of Registry staff. The appellant explained she had been sitting outside the wrong courtroom. I asked her why she had not responded to any emails or telephone calls. Distressed, she gave no intelligible explanation, and apologised. She appeared to think it was sufficient that she had attended for the appeal. She did not bring the Court book the Minister's lawyers had sent her, although she acknowledged she had received it. She said, in substance, she thought it was enough to bring the hearing notice. It was apparent she had no real idea of what she was required to do, had not absorbed any of the information the Court had sent her, and did not have the capacity to conduct the appeal herself. This situation was not going to improve with explanation, however clear: the appellant was simply not in a position to marshal arguments of the kind necessary in a judicial review proceeding; nor was she in a position to respond as required to the processes of a Court on judicial review. That incapacity stems from her distressing personal circumstances and lack of financial means to afford legal representation, not from any lack of intelligence. It seems to me from what the appellant said in Court that she is an intelligent woman. 11 The appellant asked for the assistance of an interpreter, although she informed the Court she had drafted the grounds of the notice of appeal herself. Those grounds are in very good English and express quite complicated concepts. Composing a document in one's own time and in private is a very different exercise to being put under a spotlight in a court situation, and it was entirely appropriate and understandable that even if the appellant had a reasonable grasp of English, she should ask for an interpreter for the hearing. She was entitled to feel as comfortable as possible in understanding what was being said in Court, and in taking part in the proceeding herself. 12 As it turned out, Registry staff had failed to arrange for a Punjabi interpreter to attend the appeal hearing. This necessitated the adjournment of the hearing while Registry attempted to locate an available Punjabi interpreter. I informed the appellant she should use the time to compose her thoughts about what she wanted to say about each of her grounds of appeal. The Minister's legal representative provided her own copy of the Court book to the appellant for her use during the adjournment. The appellant was subsequently provided with a Court copy of the Court book. 13 After approximately an hour, an interpreter was located, and the hearing resumed. I informed the parties that my previous unfinished reasons should be disregarded and the hearing would proceed afresh as a hearing of the merits of the appeal. The Minister's representative accepted this was appropriate. 14 I invited the appellant to make her submissions. She proceeded to give an account of how she had experienced domestic violence at the hands of her former husband. She described what had happened to her in some detail, which I need not disclose in these reasons. She became extremely distressed while recounting what had happened to her. She described circumstances in which her former husband deliberately set out, through violence, to defeat her ability to satisfy the necessary visa criteria to attain permanent residency, and how he went on to apply for permanent residency for himself. Acutely, she questioned how could it be that he, as the perpetrator of domestic violence, had obtained a permanent visa and she, as the victim of it, had not. 15 On several occasions, she pleaded with the Court to give her a visa. I explained to the appellant the limited nature of the Court's role on judicial review, the similarly limited role of the Federal Circuit Court, and the incapacity of judges in either Court to grant a visa. I doubt the appellant properly understood the distinction, and given her unfamiliarity with the law and the Australian legal system, that is hardly surprising. It is equally possible that she simply did not wish to believe the Court was unable to grant her a visa, such was her desperation. 16 Like the learned Federal Circuit Court judge, I have no doubt that the appellant was genuinely distressed at recounting her relationship with her former husband, and that the nature and level of her distress may well explain her lack of engagement with the Tribunal process, and with the subsequent court processes.