Afb20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1862
•11 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
AFB20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1862
File number(s): SYG 104 of 2020 Judgment of: JUDGE DRIVER Date of judgment: 11 August 2021 Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Fiji – applicant not believed – whether the Tribunal failed to consider an integer of the applicant’s claims or by failing to give reasons considered – no jurisdictional error. Legislation: Migration Act 1958 (Cth) ss 5J, 36, 424A, 430
Federal Circuit Court Rules 2001 (Cth)
Cases cited: CSV15 v Minister for Immigration and Border Protection [2018] FCA 699
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088
EZC18 v Minister for Home Affairs [2019] FCA 2143
GLD18 v Minister for Home Affairs [2020] FCAFC 2
Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362
NABE v Minister for Immigration and Multicultural Affairs (No 2) (2004) 144 FCR 1
SZDCD v Minister for Immigration and Border Protection [2019] FCA 326
Number of paragraphs: 30 Dates of hearing: 14 May, 11 August 2021 Place: Sydney The Applicant appeared in person Counsel for the Respondents: Ms K Hooper Solicitor for the Respondents: Australian Government Solicitor ORDERS
SYG 104 of 2020 BETWEEN: AFB20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
11 AUGUST 2021
THE COURT ORDERS THAT:
1.The application filed on 15 January 2020 is dismissed.
2.The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $7,467 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
REASONS FOR JUDGMENT
(revised from transcript)JUDGE DRIVER:
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 18 December 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. Background facts relating to this matter are conveniently set out in the Minister’s outline of submissions, which I adopt.
The applicant is a male citizen of Fiji. He arrived in Australia on 29 April 2001 as the holder of a tourist visa.[1]
[1] Court Book (CB) 780 [19]; [24]
On 10 September 2018, the applicant lodged an application for a protection visa.[2]
[2] CB 2
The applicant claimed that he would be harmed in Fiji because of his involvement as a whistle-blower and former informer to the Fijian Government and Prime Minister in relation to an illegal visa scheme.[3]
[3] see CB 35
On 5 December 2018, the delegate refused the applicant’s visa application.[4] The delegate found the applicant’s claims were not plausible and did not accept them.[5]
[4] CB 154
[5] CB 159-160
The applicant sought review of the delegate’s decision by application to the Tribunal made on 5 December 2018.[6]
[6] CB 170
On 23 October 2019 (and on other dates) the applicant sought an adjournment of the Tribunal hearing.[7] A part of an attachment in support of that adjournment application was a counselling report prepared by Michael Kirton dated 15 April 2019.[8] The applicant in his covering email requesting an adjournment invited the Tribunal to call Mr Kirton for a recent update and also said that he (the applicant) was experiencing major depression affecting his memory.
[7] CB 346
[8] CB 441 (also CB 498, under cover of the email at CB 458). There are also reports by Mr Kirton in the Supplementary Court Book (SCB) (containing documents relating to the applicant’s visa cancellation, revocation application, and non-revocation decision). They are dated 1 May 2014 (SCB 185), 14 April 2015 (SCB 188) and 10 September 2015 (SCB 191)
In his April 2019 report, Mr Kirton referred to the applicant attending counselling sessions most recently in January 2016. Mr Kirton stated that, at his most recent session, the applicant had reported that most of his previous symptoms of depression were gone and that he was positive and looking forward to the future.
The Tribunal ultimately convened a hearing of the application on 6 November 2019,[9] at which the applicant gave oral evidence and presented arguments on dispositive issues. Prior to that hearing, there were a number of adjournments sought by the applicant and granted by the Tribunal. A chronology of those procedural steps is set out at Attachment A to the Tribunal’s statement of reasons and appears at CB 825.
[9] CB 600
At its November 2019 hearing, the Tribunal attempted to contact Mr Kirton by telephone twice but was unable to reach him.[10] The Tribunal discussed Mr Kirton’s report with the applicant, at the hearing. At [47], the Tribunal stated:[11]
The Tribunal also discussed with him the report of Michael Kirton, his mental health claims, and, as outlined below, an attempted to call Mr Kirton on two occasions as requested by the applicant. The applicant confirmed he had not had counselling with Mr Kirton since 2016 but said he talks to him and has sessions over the phone or on Skype. It also raised with him country information as to the availability of mental health treatment in Fiji and that it does not appear he has a real chance of serious harm or real risk of significant harm on account of any mental health issues he is claiming if he returns to Fiji.
[10] at CB 778 [10]
[11] CB 791
By email dated 28 November 2019[12] in response to a s 424A invitation, the applicant provided the Tribunal with documents including International Health and Medical Services (IHMS) reports. At CB 727 in his s 424A response, the applicant referred to the report of Mr Kirton as being corroborative of his protection claims. Likewise, also at CB 727, the applicant referred to the IHMS reports as indicating that he had mentioned his fear of returning to Fiji. The IHMS records start at CB 748, and are dated 2017 to 2019. Various records refer to the applicant being diagnosed with major depressive disorder and adjustment disorder.[13]
[12] CB 725
[13] There are IHMS records at SCB 132-166
On 18 December 2019, the Tribunal made its decision, affirming the decision under review refusing to grant the applicant a protection visa.[14]
[14] CB 776
In short, the Tribunal rejected the applicant’s credibility as a witness and the entirety of his material factual claims, for a series of cumulative reasons corresponding with the matters the Tribunal had put to the applicant in its s 424A letter. The Tribunal’s summary of its rejection of the applicant’s claims commences at [128].[15]
[15] CB 812
The Tribunal considered Mr Kirton’s report of April 2019, and the IHMS records, and whether they were corroborative of the applicant’s claims.[16] Essentially, it did not accept that either Mr Kirton’s report or the IHMS reports outweighed the significant credibility concerns that the Tribunal had. Additionally, the Tribunal considered, and did not accept, that the inconsistencies and concerns it had with the applicant’s evidence were the result of his mental conditions.[17]
[16] CB 814 [136]-[137] (Kirton) and 814-815 [138] (IHMS)
[17] CB 815-816 [139]-[141]
THE PRESENT PROCEEDINGS
These proceedings began with a show cause application filed on 15 January 2020. The applicant continues to rely upon that application. There are two grounds in it:
Ground 1: Error of Law - The Tribunal erred, amounting to jurisdictional error, by failing to consider an integer of the Applicant's claim that squarely arose on the materials (as was recognised by the Tribunal at [47]) that as a mentally ill person being returned to the Republic of Fiji he faced a risk of significant harm.
Ground 2: Error of Law - The Tribunal erred, amounting to jurisdictional error, by failing to give adequate reasons for decision, as required by section 430 of the Migration Act 1958 (Cth) by failing to give reasons for its conclusion that the Applicant did not face a risk of significant harm on account of being a mentally ill person being returned to the Republic of Fiji.
The application is supported by an affidavit which I received. I also have before me an extremely extensive court book and supplementary court book, which I also received.
This matter came before me for a final hearing on 14 May 2021. At that time, the applicant sought and was granted an adjournment of the hearing until today. The reasons for that adjournment were the applicant’s assertions concerning his mental state and the applicant’s loss of legal representation and inability to present his case himself. The Court granted the applicant a certificate under Part 12 of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules). Unfortunately, the Court was unable to find a legal practitioner willing to take on the case on a pro bono basis.
The applicant was again examined by Mr Kirton on 30 July 2021. The applicant tendered that report, which became Exhibit A1. Mr Kirton concludes from his examination of the applicant that he suffers from an ongoing depressive disorder with anxiety features. The applicant advanced that report in support of a further adjournment application. I declined to grant a further adjournment. I took into account that Mr Kirton has examined the applicant over an extended period of time which included the proceeding before the Tribunal. Several adjournments were granted before the Tribunal, but ultimately it concluded that it needed to proceed to make a decision.
The applicant proved himself capable of participating in the Tribunal review and hearing in a meaningful way. Likewise, before me, the applicant was attentive and responsive, although not being a lawyer, he was not able to advance any legal arguments. I have formed the view, with support from the opinion of Mr Kirton, that the applicant’s symptoms are linked, at least, in part to his lengthy detention and uncertainty as to his future. I declined the application for a further adjournment and also declined to make a further attempt to find pro bono assistance for the applicant.
The applicant asserts that an element or integer of his claims was overlooked. In my view, all of the claims were considered by the Tribunal. The Tribunal decision is lengthy, but the very short conclusion to be drawn from it is that the Tribunal, while considering the applicant’s claims, did not believe them. The mental health assessments of the applicant were available to the Tribunal in drawing its adverse credibility conclusions. The Tribunal was not persuaded that the applicant’s mental health symptomology provided an adequate explanation for the problems with his account.
I have considered whether it might be argued that the applicant was not provided a fair hearing opportunity before the Tribunal. In my view, he was given a fair opportunity. The review was extensive both in terms of the time and the attention directed to it by the Tribunal member. As I have already noted, there were several adjournments, but the Tribunal ultimately needed to make a decision. I otherwise agree with the Minister’s legal submissions on the grounds of review advanced.
Where the Tribunal fails to make a finding upon a substantial, clearly articulated argument relying upon established facts, such failure can amount to a constructive failure to exercise jurisdiction by way of the Tribunal’s failure to consider an integer of the applicant’s claims.[18] An unarticulated claim must emerge squarely from the materials before the Tribunal will be obliged to consider it.[19] A claim requiring such consideration will not depend for its exposure on constructive or creative activity.[20]
[18] NABE v Minister for Immigration and Multicultural Affairs (No 2) (2004) 144 FCR 1 at 17-21 [55]-[63]; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at 1092 [24] per Gummow and Callinan JJ, Hayne J agreeing at 1102 [95]
[19] NABE at 22 [68]
[20] NABE at 18-19 [58]
The applicant did not claim that as a mentally ill person being returned to Fiji, he faced a real risk of significant harm. The applicant relied on Mr Kirton’s report of April 2019 and IHMS records as potentially corroborative of his factual claims, and Mr Kirton’s report in support of his adjournment application. The Tribunal raised the availability of mental health services in Fiji with the applicant, at its hearing, and there is no evidence he made any claim arising out of this matter.
Nowhere did the applicant articulate any claim, whether expressly or impliedly, to fear harm in Fiji because of his mental condition(s). He did not, for example, submit that he would be denied medical treatment in Fiji for a s 5J(1)(a) reason, or that he would experience stigma to an extent giving rise to serious harm for reason of his membership of a particular social group, or amounting to significant harm as defined by ss 36(2A) and 5(1). None of the applicant’s country information concerned the treatment of persons with mental illness in Fiji.
The applicant had told the Tribunal that if he was sent back to Fiji that would give him a reason to hang himself before he left Australia. This was incapable of amounting to a claim to fear serious or significant harm because it was not harm inflicted by another person.[21] At [133],[22] the Tribunal did not accept that the applicant would hang himself. Ground 1 of the application does not reveal jurisdictional error by the Tribunal.
The Tribunal did not breach s 430 of the Migration Act 1958 (Cth)
[21] CSV15 v Minister for Immigration and Border Protection [2018] FCA 699 at [31] and [34]; GLD18 v Minister for Home Affairs [2020] FCAFC 2 at [37]; EZC18 v Minister for Home Affairs [2019] FCA 2143 at [47]; SZDCD v Minister for Immigration and Border Protection [2019] FCA 326 at [43]
[22] CB 813
The Tribunal did not have to give reasons for any “conclusion that the applicant did not face a risk of significant harm on account of being a mentally ill person being returned to the Republic of Fiji”. For the reasons submitted above, this was not a claim that the applicant made.
More generally, there is no deficiency in the Tribunal’s reasons and, without more, a breach of s 430 of the Migration Act does not amount to jurisdictional error.[23]
[23] Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 at 377[46] (citing Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 348-349[75], 379[54]
CONCLUSION
I conclude that the Tribunal decision is free from jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
In consequence of the dismissal of the application, the Minister seeks and order for costs in accordance with the Court scale. The applicant claims impecuniosity, but as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $7,467 in accordance with rule 44.15(1) and Item 3 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 18 August 2021
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