Plaintiff M34/2017 v Minister for Immigration and Border Protection & Anor [2017] HCATrans 141 (30 June 2017)

Last Updated: 3 July 2017

[2017] HCATrans 141

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M34 of 2017

B e t w e e n -

PLAINTIFF M34/2017

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, 30 JUNE 2017, AT 9.58 AM

Copyright in the High Court of Australia

PLAINTIFF M34/2017 appeared in person.

MR L.T. BROWN: May it please the Court, I appear for the first defendant. (instructed by DLA Piper Australia)

HARPREET KAUR affirmed as interpreter.

HIS HONOUR: Madam Plaintiff, I have had the benefit of reading your documents – your application and the material you have provided in support of it. Is there anything that you wish to add now to what you have stated in your document?

PLAINTIFF M34/2017 (through interpreter): No, your Honour.

HIS HONOUR: Thank you.

By application for order to show cause dated 21 March 2017, the applicant seeks certiorari to quash the judgment and orders of the Federal Court of Australia (Kenny J), made on 1 March 2017, and mandamus to compel the Minister for Immigration and Border Protection to reconsider the applicant’s application of 11 March 2014 for Protection (Class XA) visa. The principal facts of the matter are not in dispute.

As appears from the judgment of Kenny J, the applicant is an Indian citizen who entered Australia in 2009. Her husband, at that time, held a student visa and the applicant entered Australia lawfully as the dependent spouse of her husband. In 2011, the applicant and her husband divorced in Australia and the applicant was granted a Vocational Education and Training Student (TU 572) visa to enable her to study an “English as a Second Language” course and a “Community Welfare” course. She received the necessary financial support from her family in India.

I digress, Mr Brown, to say I did not ask whether you wished to add anything orally to what is said in the papers, but I should do so.

MR BROWN: No, your Honour.

HIS HONOUR: Thank you very much.

The Vocational Education and Training (TU 572) visa was issued subject to Condition 8534 - a “no further stay” condition - and expired on 14 June 2012. In the same month, the applicant applied for, but was refused, a waiver of the “no further stay” condition.

In July 2013, the applicant married again, to an Australian permanent resident, and, in November 2013, the applicant made a second request for waiver of the “no further stay” condition in order that she might apply for a partner visa sponsored by her new husband. That request was also refused.

In March 2014, the applicant applied for a Protection (Class XA) visa and, in May 2014, the Minister’s delegate refused that application. In her reasons for rejecting the application, the delegate described the applicant’s claim as “vague and lacking in detail” and stated that the applicant’s failure to contact the Department as invited to discuss her claims led the delegate “to doubt the genuineness of [the applicant’s] claimed fear”. The delegate rejected the corroborative value of certain text messages which the applicant tendered in support of her claims and further found that the applicant’s delay in making her application for a protection visa raised “serious concerns about the immediacy, gravity and credibility of her claims of fearing persecution in India”.

On 2 June 2014, the applicant applied to the Refugee Review Tribunal (now the Administrative Appeals Tribunal) for review of the delegate’s decision. On 28 January 2015, the Tribunal affirmed the delegate’s decision. Like the delegate, the Tribunal found that the applicant’s evidence in support of her claims was “vague and generalised”. The Tribunal also expressed “significant doubts about the credibility” of the applicant’s claims to have suffered harm at the hands of her former husband in the past and her claims to face harm from him or anyone else in the future. In particular, the Tribunal noted the following, as summarised by Justice Kenny in her reasons for judgment:

“1. The [applicant’s] account of the physical harm she had suffered in the past from her former husband was inconsistent, when what she said in her statement accompanying her protection visa application was compared with what she told the Tribunal at the hearing. In her statement accompanying her protection visa application she said that her former husband began to harm her physically after they arrived in Australia, but she said to the Tribunal at the hearing that she had only been harmed by him once, when he slapped her twice on her face in India before they arrived in Australia, and that he did not harm her after their arrival in Australia.

2. The length of time between when the [applicant] claimed her relationship with her former husband ended (in 2011) and when she lodged her protection visa claim (in 2014) was inconsistent with the [applicant’s] claimed fears. The Tribunal rejected the [applicant’s] evidence that she had told her migration agent about her fears concerning her former husband when she made her first request for waiver of the “no further stay” condition and held that the reason she did not tell the agent was “because she did not fear harm at the hands of the ex-husband at that time”.
   
3. Her delay in applying for a protection visa and “the lengths of time when [the applicant] was without a visa but did not apply for protection . . . strongly suggest[ed] that she did not fear harm at the hands of the ex-husband during those times or at any other time”.
   
4. Her former husband’s text messages and translations, which the [applicant] provided to the Tribunal, made no reference to harming or threatening to harm the [applicant]. The Tribunal rejected the [applicant’s] claim that her husband was “very careful” about how he had worded his texts because he knew that she could show them to the police, noting that the [applicant] had conceded that she never contacted the police about the claimed harm or threats of harm. The Tribunal accepted only that the texts showed that the former husband had demanded money from the [applicant] and her family during 2010. The Tribunal gave the texts and other statements in her second waiver request “very little weight in assessing whether the ex-husband has harmed the [applicant] or her family in the past or seeks to harm them in the future”.
   
5. The [applicant’s] current husband did not attend the hearing before the Tribunal or provide any information in support of her protection claims. The Tribunal gave significant weight to the fact that the husband did not arrange to be available to give evidence at the hearing, at least by telephone if not in person, in assessing the credibility of her claims.”
   

In the result, while the Tribunal accepted that the applicant’s marriage to her former husband had ended in divorce in 2011, and that during 2010 he had requested financial support from her, the Tribunal did not accept that the applicant’s former husband had harmed or threatened to harm her or any member of her family at any time, either in India or in Australia. The Tribunal also found that the applicant did not fear serious or significant harm on returning to India on the basis of her present marriage and, in any event, as the Tribunal observed, any such fear did not arise from a reason related to the Refugees Convention, but from her former husband’s “desire for financial gain”.

Nor did the Tribunal accept that there was a real chance the applicant would suffer serious harm on return to India. It was not satisfied that there was a “real chance that the applicant [would] encounter serious harm capable of amounting to persecution at the hands of the ex-husband or anyone else, or in the form of a denial of State protection by the Indian security forces”. Accordingly, as the Tribunal concluded, the applicant did not satisfy the criteria in section 36(2)(a) or (aa) (or section 36(2)) of the Migration Act 1958 (Cth).

The applicant applied to the Federal Circuit Court of Australia, (Judge Jones), for judicial review of the Tribunal’s decision, but, on 29 August 2016, Judge Jones dismissed the claim, holding that she could find no error in the Tribunal’s reasoning or decision. The applicant appealed to the Federal Court of Australia but, on 1 March 2017, Kenny J dismissed the appeal, holding that the applicant had not identified any jurisdictional error on the part of the Tribunal which the Federal Circuit Court failed to discern.

In my judgment, this application for an order to show cause is hopeless. It does not identify any arguable basis to conclude that the Federal Circuit Court erred in its rejection of the applicant’s application for judicial review. As Kenny J rightly concluded, it is not possible to identify any jurisdictional error in the reasoning or decision of the Tribunal which the Federal Circuit Court should have discerned. In effect, the applicant’s claim is no more than assertions that the Tribunal should have accepted the truth of her testimony; and, as such, it presents as an incompetent claim for further merits review.

Accordingly, the application is dismissed.

Do you seek costs, Mr Brown?

MR BROWN: Yes, your Honour.

HIS HONOUR: The application is dismissed with costs. Thank you, you are excused.

AT 10.10 AM THE MATTER WAS CONCLUDED