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[2016] FCA 1339
Federal Court of Australia
2016-11-11
Mortimer J
Original judgment source is linked above.
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.
RESOLUTION OF THE APPEAL 17 The notice of appeal filed on 6 June 2016 contains four grounds of appeal: 1. The decision of Federal Circuit Court was incorrect as it incorrectly disregarded my fear of harm and no State protection upon my return to India. 2. The Court and Tribunal were critical of the fact that I had not attended the hearing at the Tribunal. I was not given an opportunity to explain why I did not attend a hearing at the Tribunal. The fact is that I was not well on the day and could not go. If I had known that Tribunal was going to treat my non-attendance at the hearing, as assuming that my claimed fear was not genuine, I would have attended at the hearing and provided all the explanation required by the Tribunal. The Tribunal incorrectly used my non-attendance at the hearing to doubt the genuineness of my claimed fear. 3. The Court and Tribunal were critical of the fact that I could not provide the police report in relation to the assault, violence and attempted rape on me in India. I do have such report and to get a report I would have to go to India, which I can't. Because of the influence of the offender with the police, I am not even sure that I would even get such a report. On the other hand, I might be falsely implicated for doing something wrong. 4. The Court and Tribunal were critical of the fact that I had not raised my claim of fear and harm upon returning to India until December 2013 when I had been in Australia since November 2006. The reason for this was that I had not lodged a protection visa application until then. Again the reason for this was that I was here on student visa and my student visa was continuing and I had no need to lodge a protection visa application. The Court and Tribunal ignored the fact that I had not been to India ever since I came to Australia in November 2006. I could not go to India because of my genuine fear of what would happen to me upon return to India. 18 Grounds 3 and 4 in particular seek to put before this Court on appeal further information which could call into question the Tribunal's conclusion on review as to what was the correct or preferable decision. They do so by giving explanations for adverse findings made by the Tribunal. The appellant could not advance those explanations to the Tribunal because she did not appear at the Tribunal hearing. She cannot advance those explanations to a court on judicial review, whether at first instance or on appeal. It is not part of this Court's supervisory function to assess additional information, not before the Tribunal, in order to determine whether the correct or preferable decision was a decision other than the one made by the Tribunal. In substance, that is what the appellant's statements to the Court on the hearing of the appeal also sought to do. Grounds 3 and 4 must fail. 19 Ground 1 challenges the Tribunal's finding about the appellant lacking a well-founded fear of persecution, and contends the Tribunal disregarded the fact she would have no state protection in India. Making allowances for the appellant representing herself, it is tolerably clear that this ground challenges the way the Tribunal performed its statutory task of deciding whether, on the basis of the material before it, the appellant had a well-founded fear of persecution for a Convention reason. It is conceivable this ground of appeal raises a legal question. A similar ground was raised by the appellant before the Federal Circuit Court: 3. The RRT failed to appreciate that the Applicant has a genuine fear of harm and cannot return to India. 20 The Federal Circuit Court was correct to reject this ground of review, and the ground as reformulated on the appeal should also be rejected. The Tribunal's reasons disclose that it examined, as it was required to do, both the appellant's actual claim (about her neighbour) and a claim that fairly arose on the material (concerning her former husband's alleged domestic violence, and whether this posed a risk for her in India). It is correct that the Tribunal did not examine the adequacy of state protection, but it was not required to do so in circumstances where it had found there was no genuine fear of persecution from the neighbour, and no real chance of persecution in India from her former husband. Both conclusions were open to the Tribunal on the sparse material before it, given the appellant did not attend the hearing to explain her claims in any more detail, nor make any written submissions. If she had described to the Tribunal the kinds of matters she described to the Court, the Tribunal may well have taken a different view, but that is not what occurred. Ground 1 must fail. 21 Ground 2 challenges the decision of the Tribunal to proceed to determine the application for review without hearing from the appellant, given that she did not attend the Tribunal hearing. Although she does not use this language, it is tolerably clear from the way in which the appellant has expressed ground two that she is contending the Tribunal exercised its power under s 426A unreasonably. The exercise of a discretionary power of this nature is subject to judicial scrutiny in order to determine whether it was exercised in a legally unreasonable way: Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332. 22 The Minister is correct to submit that: The Tribunal identified further details it would have sought from the appellant if she had attended the hearing, but the Tribunal did not reason from the appellant's non-attendance that her claim to fear harm was not genuine (ground 2). Rather, because of the very limited evidence before it, the Tribunal could not be satisfied of the appellant's claims of past harm, or her claims to fear harm if she returned to India in the future. 23 However, it remains the case that it was the Tribunal's decision not to adjourn the review, but rather to determine it in the appellant's absence, which meant it had such limited material. The question is whether the Tribunal's discretion to proceed (as s 426A contemplates it could) was exercised in a legally reasonable way. Was there an "evident and intelligible justification" for the course it took? (See Li at [76]). The Tribunal's reasons state (at [6]): On 16 July 2014 the Tribunal wrote to the applicant advising her that it had considered the material before it but was unable to make a favourable decision on this information alone and inviting her to appear before the Tribunal on 27 August 2014 to give evidence and present arguments in support of her application. 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. 24 This is not a case where there had been a pattern of close contact with the Tribunal such that it was reasonable to expect the Tribunal to take the short and simple step of making a phone call to the appellant to see why she had not attended the hearing. This was not a case where the appellant's previous behaviour in relation to her review suggested a close and vital interest in its conduct, and suggested that failure to attend a Tribunal hearing was not the result of a conscious decision and was, instead, out of character: cf. my decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915; 236 FCR 393. 25 As the Full Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 observed (at [42]), the Court's evaluation of asserted legal unreasonableness in the exercise of a discretionary power is likely to be fact dependant, and to require careful attention to the evidence in each case. The evidence, such as it is on this appeal, suggests the appellant had not taken any active part in her review before the Tribunal up to the date of the hearing. I accept that her personal circumstances as she described them to the Federal Circuit Court and this Court are likely to explain why that was so, but the details of these circumstances were not known to the Tribunal because, according to the Tribunal's reasons, she did not put any material before it, or otherwise put it on notice, about those matters prior to the scheduled date for the hearing. She did not explain to the Tribunal why she could not attend the hearing. Nor did she explain to the Tribunal how her circumstances as a victim of domestic violence affected her capacity to participate effectively in the review. She simply did not communicate with the Tribunal. While, at one level, this may be understandable behaviour for a woman in her position, the consequence was that the Tribunal was given no basis to consider that there may have been justifiable reasons why she did not attend the Tribunal hearing. 26 The Minister is correct to identify, as one factual circumstance to weigh in deciding whether the exercise of the discretion under s 426A was legally unreasonable, the content of the notice sent to the appellant by the Tribunal on 16 July 2014. This was her hearing invitation. The notice was compliant with s 425A of the Act, including the requirement in s 425A(4) that the notice contain a statement as to the effect of s 426A. Relevantly, the notice stated: If you are not able to attend the hearing you should advise the Tribunal as soon as possible. Please note that the Tribunal will only change this date if satisfied that you have a very good reason for being granted an adjournment. If the Tribunal does not advise you that an adjournment has been granted, you must assume that the hearing will go ahead. If you do not attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable you to appear before it. 27 The appellant did not contend before the Federal Circuit Court, nor in her grounds of appeal, that she did not receive the hearing invitation. Rather, she contended she had a reasonable excuse for not attending. As I have noted, it was not an excuse she conveyed to the Tribunal at the relevant time. 28 I do not consider there was anything that could be characterised as legally unreasonable in the way the Tribunal exercised its discretion under s 426A, given the circumstances of this particular review, and the appellant's lack of contact with the Tribunal. There was no basis in the material before the Tribunal for it to consider that, if it adjourned the review, the appellant would attend an adjourned hearing and avail herself of the opportunity to present evidence and arguments in support of her claims: cf. Kaur. 29 The appeal must be dismissed. There is no basis in the evidence for anything other than the usual order as to costs. 30 That outcome should not be taken as a rejection of the appellant's account of what has happened to her in her marriage. To the contrary, I found it to be genuinely given, and her fears of returning to India (for, it seems, a number of reasons) appeared to be real. 31 At a broader level, it would be an unjust outcome if a woman who was a genuine victim of serious domestic violence in Australia was forcibly removed to a country where she had no support, and held real fears for her personal safety, while the perpetrator of that domestic violence retains permanent residency in this country. Whether or not, on investigation, that description is an accurate one for the appellant's circumstances is not a matter for me. It is however, in my respectful opinion, a matter which may warrant further investigation. It is appropriate that the Minister's legal representatives draw these reasons, and the transcript of what was said by the appellant to the Court on the hearing of the appeal, to the attention of the Minister, through his Department. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.
MZALO
Minister for Immigration and Border Protection