MZZQB v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT (Delivered Ex Tempore and Revised) 1 This proceeding concerns an application for leave to appeal from an interlocutory decision of the Federal Circuit Court made on 29 November 2013, where Judge Jones made orders dismissing the applicant's application. The applicant sought orders setting aside the Federal Circuit Court's decision of 18 October 2013 to dismiss her application for judicial review in the Federal Circuit Court. Pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), the applicant seeks leave to appeal from that decision.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY 2 The applicant is a citizen of India. She arrived first in Australia on 8 June 2012, and on 9 July 2012 she applied for a Protection (Class XA) visa. The basis of her claims for protection are set out at [5] of the reasons of the Federal Circuit Court, and are as follows: 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. 3 On 23 November 2012, her application was refused by a delegate of the Minister, and on 14 December 2012 she applied for review of that decision to the Refugee Review Tribunal. On 4 July 2013, the Tribunal affirmed the decision of the delegate to refuse the protection visa application and, on 30 July 2013, the applicant applied to the Federal Circuit Court for judicial review of the decision of the Tribunal. 4 Orders were made preparing the matter for trial, and a show cause hearing was listed for 18 October 2013. However, the applicant, did not appear at that hearing. As the primary judge was empowered to do on the failure to appear, her Honour ordered that the application for review be dismissed, pursuant to r 13.03C of the Federal Circuit Court Rules 2001 (Cth), which provides that If a party to a proceeding is absent from a hearing (including a first court date), the Court may do 1 or more of the following … … (c) if the absent party is an applicant - dismiss the application; 5 On 8 November 2013, the applicant filed an application, seeking orders as follows that the orders of Judge Jones made on 18 October be set aside and that the case be reheard. 6 In support of that application, the applicant filed an affidavit, which stated: I was in the court on last hearing date but just appear after 5 minute. But my application was dismissed so please reheard my application. 7 The application for reinstatement was heard on 29 November 2013, and the applicant appeared at that hearing. The primary judge gave an ex tempore decision on that date, dismissing the application for reinstatement. 8 The primary judge heard the applicant's explanation as to why she was late to the hearing on 18 October 2013 and, noting that the applicant lives some distance from Melbourne, the primary judge accepted that the applicant had provided a satisfactory explanation for her non-attendance. 9 The primary judge clearly took some time to explain to the applicant, who has not had legal representation throughout her proceedings in the Federal Circuit Court or in this Court, what the Court's role was and what kinds of arguments the applicant needed to put before the Court. The primary judge summarised the questions and the applicant's answers in the following way (at [21]-[22]):; 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. 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." 10 The primary judge then considered the prospects of success of the matters that were put forward by the applicant and considered the question of whether the Tribunal had dealt unfairly with her because of any medical condition. Her Honour noted the Tribunal had taken the "unusual step" of inquiring as to her medical circumstances to ensure there were no medical reasons which could explain the inconsistencies in her various accounts of what had happened to her. 11 The primary judge also accepted the first respondent's submission that the applicant's complaints about the inconsistencies in her account and the Tribunal's refusal to "review her case again" amounted to no more than a complaint about the merits of the Tribunal's decision-making and did not involve any jurisdictional error. As to her need for a lawyer, the primary judge relied on the applicant's own evidence that she did not apply for an adjournment so as to secure the assistance of a lawyer. 12 Given the applicant had also complained that the Tribunal did not "believe her", the primary judge examined the Tribunal's reasoning in reaching its findings and conclusions about why it did not accept the applicant's account. Her Honour reviewed carefully the reasoning of the Tribunal as to why it decided the applicant was not a credible witness, and then concluded the Tribunal's findings were open to it. 13 Her Honour found that, if the applicant were to have her case reinstated, there would be no reasonable prospects of success, and so her Honour dismissed the application. 14 The primary judge's decision is an interlocutory decision, so that the applicant needs leave to appeal from it. The applicant's application for leave to appeal relies on an allegation of breach of s 424A of the Migration Act 1958 (Cth) (Migration Act). The grounds upon which leave is sought are as follows: 1. The FM filed to find that the Tribunal's decision was in breach of s 424A of Migration Act 1958 (Cth) and therefore fall under jurisdictional error. 2. There was certain adverse information used by the Tribunal to affirm the decision under review and Tribunal did not disclose the information in accordance with s 424A. 15 An affidavit, sworn by the applicant and filed with the application for leave on the same day, restates the second ground set out in the application for leave. A draft notice of appeal filed with the application and affidavit sets out the same grounds. The orders sought by the draft notice of appeal are as follows: 1. Leave be granted to include additional grounds of review of the decision of the Tribunal on the grounds of jurisdictional error. 2. The application be allowed 3. There be an order in the nature of certiorari to quash the decision of the Tribunal 4. There be an order in the nature of mandamus requiring the tribunal to review according to law the decision of the delegate of the Minister to refuse a protection visa sought by the applicant. 5. The first respondents pay the applicants costs. 16 The content of the application for leave to appeal, and the affidavit, suggest that the applicant is seeking to raise a new argument about jurisdictional error in the Tribunal's decision on her application for leave to appeal, rather than to challenge the primary judge's reasons for her decision. It would appear that the applicant has obtained some information about the purpose and operation, at least at a basic level, of s 424A of the Migration Act. 17 During the hearing of the application I asked the applicant to identify what was the unfairness in the Tribunal's decision-making process. She said frankly that there was no unfairness by the Tribunal; rather, that the problem was on her part because she could not answer the Tribunal's questions properly and in a way to persuade the Tribunal to believe what she was saying.