FEDERAL COURT OF AUSTRALIA

MZZQB v Minister for Immigration and Border Protection [2014] FCA 504

THE COURT ORDERS THAT:

1.    The application for leave to appeal from the orders and decision of the Federal Circuit Court on 29 November 2013 is refused.

2.    The applicant pay the first respondent’s costs of the application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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.

APPLICABLE PRINCIPLES

18        The power to grant leave to appeal is conferred on the Court by s 24(1A) of the FCA Act. It is an “unfettered discretion” conferred in “unqualified terms”: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399. Factors the Court must consider when exercising its discretion are whether the first-instance decision is attended by sufficient doubt to warrant the grant of leave, and whether substantial prejudice or injustice would result if leave were refused: see Décor Corporation 33 FCR 397 at 399; Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261; [2010] FCAFC 101 at [20].

19        Courts frequently have drawn the distinction between interlocutory decisions of a procedural nature and those which determine substantive rights in a proceeding, finding that, where an applicant’s substantive rights were affected, this may weigh in favour of the exercise of discretion: see Décor Corporation 33 FCR 397 at 400; Cement Australia 187 FCR 261; [2010] FCAFC 101 at [22], referring to Rigato Farms Pty Ltd v Ridolfi [2001] 2 Qd R 455; [2000] QCA 292 at [23]; Samsung Electronics Co Ltd v Apple Inc [2013] FCAFC 138 at [19]-[20].

20        It also will be necessary that the applicant demonstrate that the judge at first instance made an error of the kind identified in House v The King (1936) 55 CLR 499 at 505; in other words, that the exercise of discretion miscarried in such a fundamental way as to justify appellate court interference: see also Samsung [2013] FCAFC 138 at [17]; Christanty v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] FCA 33 at [24] per Yates J.

21        As the Minister submitted, this application concerns only the decision to refuse reinstatement. If successful, the most the applicant could secure would be to have the reinstatement refusal set aside and a direction made that the judicial review application be reinstated and heard and determined in accordance with law.

CONSIDERATION

22        The applicant has had the assistance of an interpreter for the hearing before me. The Court arranged for the interpreter and the applicant to attend prior to the commencement of the hearing so that the Minister’s submissions could be interpreted to her, although this task was only partly completed. Therefore, I asked the Minister’s representative to summarise his client’s submissions, which were then interpreted to the applicant during the course of the hearing.

23        Although this application concerns the refusal to reinstate the judicial review application, the effect of that refusal is to determine adversely to the applicant the principal means she had of trying to overturn the Tribunal’s decision. In the context of the Migration Act, that means the consequences for the applicant may be serious indeed, including exposure to removal from Australia. That factor, together with the fact she is unrepresented, and unfamiliar with the Australian legal system, means it is appropriate for the Court to consider not only the argument she has put forward in her application for leave to appeal, but more generally whether, on the material before it, the Tribunal’s decision can be said to be affected by any jurisdictional error.

24        The primary judge had a discretion under r 13.03C of the Federal Circuit Court Rules whether to dismiss the application for review when the applicant did not appear. In the circumstances, there appears to have been no suggestion prior to the date fixed for hearing that the applicant had indicated any inability to attend, or impediment to her attendance, and accordingly there can be no criticism of the manner in which the primary judge chose to exercise her discretion on that occasion.

25        On the reinstatement application, the primary judge took a favourable view of the applicant’s explanation about being in the Court precincts but not in Court, and accepted that as a satisfactory explanation.

26        In that sense, the primary judge gave the applicant the benefit of the doubt. In my opinion, the primary judge’s assessment of the application as having no reasonable prospects of success, even if it were reinstated, was correct. The Tribunal’s decision is, as the primary judge found, carefully and thoroughly reasoned. The Tribunal gives ample explanation of why it did not accept the applicant and her account of what had happened to her in India as credible. That was part of the Tribunal’s function and, where the Tribunal’s reasoning is rational and clearly explained, there is no basis for interference by a reviewing court.

27        Insofar as the applicant now seeks to raise a new complaint about the Tribunal’s decision — namely, a breach of s 424A — in my opinion there is no substance to that complaint.

28        As the Minister points out in his submissions, the terms of s 424A do not assist the applicant, in circumstances where the only information considered by the Tribunal on review was information provided by the applicant herself. That category of information is expressly excluded by ss 424A(3)(b) and (ba). Further, the country information before the Tribunal was also not required to be disclosed by reason of s 424A(3)(a).

29        In any event, it is apparent from the Tribunal’s reasons that it carefully and thoroughly put to the applicant, in considerable detail, the difficulties it had at a factual level with her account. That process would, in my opinion, have satisfied any general law obligation of procedural fairness. I conclude that the decision of the primary judge to refuse to reinstate the judicial review application is not attended by sufficient doubt to warrant the grant of leave. The primary judge was correct in her assessment that the Tribunal’s decision was not affected by jurisdictional error.

30        Although there are serious consequences for the applicant in refusing leave, in the sense of exposing to her the likelihood of having to return to India, that is not, in my opinion, a prejudice that arises from the decision of the primary judge. Rather, the serious consequence (and any prejudice) arises from the Tribunal’s decision itself and the applicant’s failure to demonstrate legal error in that decision. Accordingly, the application for leave to appeal must be dismissed.

Associate:

Dated:    6 June 2014