AKO15 v Minister for Immigration

[2015] FCCA 2291

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKO15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2291

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – whether the Tribunal failed to take into account the applicant’s mental health – whether the Tribunal’s adverse findings in relation to credit were the result of the applicant’s anxiety disorder – whether the Tribunal gave proper reasons – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Applicant: AKO15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 970 of 2015

Judgment of: Judge Street

Hearing date: 24 August 2015

Date of Last Submission: 24 August 2015

Delivered at: Sydney

Delivered on: 24 August 2015

REPRESENTATION

Counsel for the Applicant: Mr Leydon

Solicitors for the Applicant: George Pikoulas and Associates

Solicitors for the First Respondent: Mr E Elliott
DLA Piper

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further documents in this regard is dispensed with.

2. The application is dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the amount of $4800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 970 of 2015

AKO15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ with in the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 16 March 2015 affirming a decision of the delegate not to grant the applicant a protection (class XA) visa. The applicant was found to be a citizen of the Arab Republic of Egypt and his claims were assessed against that country. The applicant first entered Australia on 2 March 2006, holding a subclass TU572 student visa before departing Australia on 2 August 2008.

2. The applicant re-entered Australia on 28 August 2008 before departing again on 12 August 2012.  The applicant arrived in Australia on 5 October 2012, travelling on an Egyptian passport, holding a valid subclass TU572 student visa, and lodged an application for protection on 28 December 2012.  The delegate refused to grant that visa on 26 July 2013.  The applicant applied for a review of that decision on 22 August 2015.  The applicant was invited by letter dated 5 February 2015 to attend a hearing on 11 March 2015, at which the applicant attended to give evidence and present arguments. The applicant was assisted by an interpreter.

3. The application raises the following grounds:

   1. The Refugee Review Tribunal has failed to provide reasons for its decision pursuant to section 36(2)(aa) of the Migration Act.

   Particulars:

   In dealing with the Applicants claims under section 36(2)(aa) of the Migration Act 1958 (Cth), the RRT explicitly failed to provide separate reasons to its consideration under section 36(2)(a) of the Act.

   2. The RRT has failed to apply the correct test pursuant to Section 36(2)(aa) of the Migration Act 1958

   Particulars:

   In dealing with the Applicant's claims under section 36(2)(aa) of the Migration Act 1958 (Cth), the Refugee Review Tribunal explicitly failed to disaggregate the statutory formulae under section 36(2)(a) and 36(2)(aa) of the Act.

4. Mr Leydon, counsel on behalf of the applicant, drew attention to the medical evidence identifying the applicant as being a person who was receiving treatment for acute anxiety disorder according in a report from a Dr Arshad Malik issued on 11 April 2013, which relevant recorded that he would be unfit from meeting or conferences as from 11 April 2013 to 17 April 2013.  It is clear from para.16 that the Tribunal took into account that medical report, by reason of which the interview of the applicant was re-scheduled before the delegate to 30 April 2013.

5. The Tribunal also asked the applicant when the last time he had been to see a doctor about his acute anxiety disorder and the applicant stated that was before the delegate’s interview when they sent the note; see para.53.  Mr Leydon of counsel took the Court to the Tribunal’s reference to the complementary protection criteria (see paras.139 to 141 of appendix A to the Tribunal’s reasons), which appendix was clearly incorporated as a summary of the relevant law, (see para.2).  Whilst attention was drawn to para.140, the thrust of Mr Leydon’s attack on behalf of the applicant was in relation to the adverse finding made in para.120, as follow:

   120. The Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Egypt, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Having found that the applicant is not being truthful in his claims and having rejected all his claims for protection, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Egypt, there is a real risk that he will suffer significant harm.

6. Mr Leydon of counsel submitted that the applicant’s evidence before the Tribunal that a fear of persecution had been consistent and that the inconsistencies identified by the Tribunal could be explained away by reference to the acute anxiety disorder and that it would have been more reasonable for the Tribunal to conclude that the applicant was telling the truth.  It is clear that this is a case where the Tribunal did make adverse findings in relation to the applicant’s credit and found that the applicant was not a witness of truth, and found that he was fabricating all of his claims. 

7. That adverse finding in relation to the applicant’s credit was not confined to a mere consideration of inconsistencies.  There was a detailed identification of the cumulative factors in para.111 that led to the conclusion adverse to the applicant in relation to credit.  It was clearly a matter for the Tribunal to determine whether to accept the applicant’s claims and evidence.  Moreover, it is clear that Tribunal did take into account that at one point in time, there was a period where the applicant had suffered an acute anxiety disorder.  This is not a case where it could be said that the Tribunal had failed to take into account any relevant factor in relation to the applicant’s mental health.

8. The Tribunal has set out detailed reasons in relation to the adverse findings of credit and I am satisfied those adverse findings of credit were open on the material before the Tribunal. The adverse credit findings have a logical foundation.  Further, the adverse findings cannot be said to lack an intelligible and evident justification.  There is no substance in relation to the proposition identified in ground 1 of the application that the Tribunal failed to provide reasons in support of the adverse decision in respect of complementary protection.  Ground 1 fails to make out any jurisdictional error. 

9. In relation to ground 2, it is clear from the Tribunal’s reasons that pick up the summary of the relevant law through appendix A in respect of complementary protection to which I have referred and the adverse findings in paras.120-123, 125 and 126 that the correct principles have been applied in relation to complementary protection. Mr Leydon of counsel sought to focus on the applicant’s claims as coming from a Sunni Muslim family and in particular, his fear from the Muslim Brotherhood.  The adverse findings in relation to those claims of the applicant were open to the Tribunal and the reasoning of the Tribunal in relation to complementary protection does not reveal any failure to apply the correct test.  The applicant has failed to make out ground 2 of the application.  The application is dismissed. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 27 August 2015