MZARK v Minister for Immigration and Border Protection & Anor [2016] HCATrans 132 (3 June 2016)

Last Updated: 8 June 2016

[2016] HCATrans 132

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M29 of 2016

B e t w e e n -

MZARK

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

FEDERAL COURT OF AUSTRALIA

Second Defendant

Application for order to show cause

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 3 JUNE 2016, AT 11.58 AM

Copyright in the High Court of Australia

MZARK appeared in person.

MR S.M. REBIKOFF: If your Honour pleases, I appear for the first defendant. (instructed by Australian Government Solicitor)

HIS HONOUR: Thank you, Mr Rebikoff.

SURINDER MUDHER, sworn as interpreter.

HIS HONOUR: Thank you. Would you mind having a seat next to the plaintiff, please, where you can assist him? Mr MZARK - I will call you Mr MZARK, if I may, for reasons which you will understand. Please do not think me rude. Mr Rebikoff.

MR REBIKOFF: Your Honour will recall that on the last occasion we were before your Honour I made short submissions by reference to my outline of submissions dated 24 March.

HIS HONOUR: Yes.

MR REBIKOFF: The plaintiff requested further time to consider those submissions, and that led to the matter being adjourned off to today.

HIS HONOUR: Thank you. I might hear from the plaintiff then. Mr MZARK, now that you have had a chance to consider Mr Rebikoff’s submissions, is there something further you would like to say in support of your application?

MZARK (through interpreter): What I would like to say, before they accepted that I do have some facts, nothing happened in the last six years. I am scared of India, not I am scared of Australia. They mean nothing to me because in the last six years, I did not go back to India. The conditions were told to me about the protection, and I do have a similar problem for my class. The girl I married, she belongs to the Sikh religion, and I am from the Hindu religion. As......last six years I have not been home, but I have not gone back. As I indicated this matter has not finished. I have married to a different class, which is not acceptable there. In India, politicians and members of parliaments, they are not safe. How could I be safe there?

In paragraph 2.2, I say that last time I did not have anything to say but this seemed - like last time I did get to see this paper while I was outside. I was guided by the interpreter that since we have received the paper now, what are you going to say? That is why I asked for today’s time, because.....came two days ago. When I came to Australia, I did not come for protection - to seek protection here. I came with my wife on a study visa. My marriage broke down due to some.....here, on the three point - - -

THE INTERPRETER: Your Honour, he is pointing me out something in English. Do you want me to read it in English?

HIS HONOUR: Certainly.

MZARK (through interpreter): Point three he is dealing with.

HIS HONOUR: Yes. The plaintiff is a citizen of India who arrived in Australia in - - -

THE INTERPRETER: That is correct; a citizen of India who arrived in Australia on 26 September 2007, and was dependent on his wife’s student visa, your Honour. That is the paragraph he is pointing to.

HIS HONOUR: All right. What is he saying about that, Mr Interpreter?

MZARK (through interpreter): My marriage did not break down due to.....the college in which my wife came to study, the principal of that college had to speak to my wife’s father and mother and they misguided the principal that this is – this matter is not with consent; it is against the religion. That college has been already declared bankrupt and his business was just to misguide people, not to run the business to teach people. He created more problems in my life. That is why I had to break up with my wife. Her parents seek help from the principal, and due to their discussion my marriage broke down. They spoke to me on the phone – “Do not come back to India. We will not spare you if you come back to India as you have left our daughter.”

Your Honour, point 8 assumed that I was assisted by the agent and interpreter. I was helped by the agent and interpreter as my education level is very low. They advised me to just show my paper to some lawyer and get some advice. The RRT accepted that I do have some threats and I do have some problems. After accepting 90 per cent of what I told them, they told me that I can be relocated to other part of India. Just asking a question like other people from other countries like.....when they lodge an application for protection, they are also told to go and live in any other part of the country, like relocation or not. I did not find it was being fair. That is why I come to this Court.

HIS HONOUR: Yes, I see. All right, thank you. Have a seat, please. Mr Rebikoff, is there anything further you want to say?

MR REBIKOFF: Only, your Honour, that all of the matters raised by the plaintiff were considered by the Refugee Review Tribunal, and that it is not the role of this Court to consider the merits of the plaintiff’s claim, only to determine whether there is legal error, and there is no such error.

HIS HONOUR: Thank you.

This is an application for an order to show cause why orders in the nature of prohibition, certiorari and mandamus should not go to quash a decision of the Federal Court of Australia constituted by Justice Tracey, and to require the first-named respondent Minister to reconsider a decision to grant the plaintiff a Protection (Class XA) visa under the Migration Act 1958 (Cth) (“the Act”).

The plaintiff is an Indian citizen who arrived in this country on 26 September 2007 on an Indian passport, as a dependant of his ex-wife, on a TU 573 student visa which had been granted to him on 19 September 2007. It remained in effect until 12 November 2007. On 12 November 2007, he was granted a further TU 573 student visa as a dependant. It remained in effect until 30 July 2008. On 30 July 2008, he lodged an application for an ELICOS Sector TU 570 visa, which was granted on the same day. That visa expired on 7 October 2009. After that time, he remained in Australia as an unlawful non-citizen until he was apprehended and detained on 14 December 2013.

On 30 December 2013, he lodged an application for a Protection (Class XA) visa and, on 23 April 2014, a delegate of the Minister refused the application. The delegate was not satisfied that the plaintiff faced a real chance of harm if he returned to India and therefore was not satisfied that the plaintiff was a person to whom Australia had protection obligations under section 36 of the Act.

On 5 May 2014, the plaintiff applied to the Refugee Review Tribunal for review of the delegate’s decision. The matter came on for hearing before the Tribunal on 16 December 2014. The plaintiff appeared before the Tribunal and gave evidence and presented argument in support of his application. He was assisted in the presentation of his case by a migration agent and an interpreter.

On 5 January 2015, the Tribunal affirmed the delegate’s decision. It found that much of the plaintiff’s evidence was vague and speculative. It accepted that the plaintiff’s ex-wife’s family did not approve of their marriage, but found that the plaintiff had exaggerated the extent of his ex-wife’s family’s disapproval and enmity towards him. The Tribunal did not accept that they would take any adverse action against the plaintiff or his ex-wife, or harm them in any way.

On 5 February 2015, the plaintiff applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. The matter came on for hearing before Judge Hartnett on 4 November 2015, and the plaintiff appeared in person. At the conclusion of the hearing, Judge Hartnett gave judgment ex tempore dismissing the application. Her Honour held that none of the grounds of review identified in the plaintiff’s application had been made out. In substance, they did no more than seek a form of merits review. Her Honour further held that the Tribunal had considered the plaintiff’s claims individually and cumulatively, and that its reasons for rejecting them were open to it and not illogical or unreasonable. On that basis, her Honour concluded that the application for judicial review was without merit.

On 17 November 2015, the plaintiff filed an application for leave to appeal to the Federal Court of Australia, raising four grounds of complaint. They were that first, the Tribunal had not applied the correct legal test in relation to section 36(2)(aa) of the Act, and the Federal Circuit Court had erred in failing to detect the error; secondly, the Tribunal had failed to have regard to relevant considerations and thus committed jurisdictional error; thirdly, the Tribunal denied the plaintiff a proper opportunity to be heard and erred by failing to take his health into account; and, fourthly, the Federal Circuit Court had denied the plaintiff procedural fairness in the conduct of the show cause application.

The application for leave to appeal came on for hearing before his Honour Justice Tracey on 24 February 2016. The plaintiff appeared in person. At the conclusion of the hearing, his Honour gave ex tempore judgment dismissing the application. His Honour held that the complaint about section 36(2)(aa) had not been advanced before the Federal Circuit Court and would properly have been rejected if it had been. The complaint about failing to have regard to unidentified matters was not raised before the Federal Circuit Court and, in those circumstances, it was not possible to discern any jurisdictional error on the part of the Tribunal or error on the part of the Federal Circuit Court in relation to those matters. The plaintiff had not suggested that he was ill at the time of the Tribunal hearing and there was no evidence that he had been in any way impeded by illness in the presentation of his case. In the absence of such evidence, the Federal Circuit Court could not have found that the Tribunal committed a jurisdictional error in failing to take sickness into account.

Now the matter comes before this Court. The sole ground of the application is:

“Tribunal has not considered my situation, Circuit Court hasn’t considered and Federal Court of Australia hasn’t considered my situation so I am bringing the decision to High Court”.

In oral argument this morning, the plaintiff advanced some further contentions which were largely directed to the merits of the matter determined by the Tribunal, and to the way in which the matter had proceeded before the Federal Circuit Court. Assuming, however, that the ground of application is directed to both the Federal Court and the Federal Circuit Court’s judgments and the Tribunal’s decision, I do not consider that there is a basis for relief in relation to any of those determinations. Insofar as relief is sought against the Tribunal’s decision, the application is greatly out of time, and I consider that it would be futile to extend time.

It is clear from the reasons for decision of the Tribunal that it did consider the plaintiff’s situation at length and that it made detailed findings about the plaintiff’s situation on which it based its decision. As the Federal Circuit Court observed, there is nothing about the Tribunal’s reasons for decision which is indicative of reviewable error. As it appears to me, there is nothing about the Federal Circuit Court’s reasons which suggest that there is or should be any doubt about the Tribunal’s findings or decision.

The claim for relief in respect of the decisions of the Federal Circuit Court and Federal Court’s judgments present as equally without substance. Nothing which has been said or is otherwise apparent casts any doubt upon the correctness of those decisions or the findings or reasoning which support them.

Mr MZARK, you should understand that my powers are very limited. I can only grant relief on the basis of jurisdictional error, or perhaps error of law. I do not have the legal power to consider again the factual questions determined by the Tribunal. In the result, Mr MZARK, your application is dismissed with costs.

MR REBIKOFF: May it please the Court.

HIS HONOUR: Mr Rebikoff, thank you. Adjourn now sine die.

AT 12.24 PM THE MATTER WAS ADJOURNED