AMU15 v Minister for Immigration and Border Protection
[2016] FCA 841
•16 February 2016
FEDERAL COURT OF AUSTRALIA
AMU15 v Minister for Immigration and Border Protection [2016] FCA 841
Appeal from: AMU15 v Minister for Immigration and Border Protection [2015] FCCA 2312 File number: NTD 56 of 2015 Judge: MANSFIELD J Date of judgment: 16 February 2016 Legislation: Migration Act 1958 (Cth) Cases cited: AMU15 v Minister for Immigration and Border Protection [2015] FCCA 2312
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Date of hearing: 25 November 2015 Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 46 Counsel for the Appellant: The appellant appeared in person Counsel for the Respondents: Z Kent Solicitor for the Respondents: Australian Government Solicitor ORDERS
NTD 56 of 2015 BETWEEN: AMU15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MANSFIELD J
DATE OF ORDER:
16 FEBRUARY 2016
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay to the first respondent costs of the appeal to be taxed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MANSFIELD J
The appellant appealed from a judgment of the Federal Circuit Court of Australia delivered on 25 August 2015: AMU15 v Minister for Immigration and Border Protection [2015] FCCA 2312. That Court dismissed an application for judicial review of a decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (the Tribunal). The Tribunal had affirmed a decision of a delegate of the Minister to refuse to grant to the appellant a Protection (Class XA visa) (the visa) under the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The appellant is an Indian citizen who arrived in Australia on 16 September 2008 on a student visa. The visa ceased on 1 March 2011, and he apparently lived unlawfully in the Australian community until he was taken into immigration detention on 27 July 2014.
It was only after him being taken into immigration detention that he applied for the visa. That was done on 2 September 2014.
He claimed to fear harm on the basis that he is a homosexual. He reported that he had been raped when he was only eight years old, by a male labourer, and that he has been the subject of verbal, physical and social exclusion and threats to his life since that time. He said he feared verbal threats and threats of torture, hanging or stoning if he were to return to his village.
That application was refused by a delegate of the Minister on 21 January 2015.
The appellant then applied to the Tribunal for review of the delegate’s decision on 30 January 2015. As required, the Tribunal on 5 March 2015 conducted a hearing by telephone with the appellant, with the assistance of an interpreter, to enable him to present arguments and to give evidence in support of his claim.
On 23 March 2015, the Tribunal affirmed the delegate’s decision.
THE TRIBUNAL’S REASONS
The Tribunal identified the central issue as whether it accepted the appellant’s claim that he is a homosexual.
It accepted the appellant’s claim to have been sexually assaulted at a young age, but considered that this assault was not an incident of the appellant’s claimed homosexuality and did not result in the appellant suffering serious or significant harm from verbal, physical and social exclusion.
The Tribunal identified a number of inconsistencies in the appellant’s evidence that undermined the appellant’s claimed fear of harm due to his homosexuality. The Tribunal considered that the appellant’s inability to identify any serious or significant harm he had suffered in India because of his claimed homosexual activities between the ages of 16 or 17 and 24 was inconsistent with his claimed fear of harm, and it considered the appellant’s evidence (raised for the first time orally before the Tribunal) that he took drugs in India up to the time he left for Australia to be fabricated.
The Tribunal considered the appellant’s claim that he contracted hepatitis C because of his homosexual activities but rejected it for the reasons given (see [40] of the reasons of the Tribunal set out below):
The applicant claimed that he caught hepatitis C because of his homosexual activities. The sources the Tribunal referred to do not support a claim that homosexual relations is a cause of hepatitis C, which is contracted when the blood of an infected person enters the blood stream of another person. Hepatitis C affects the liver. It is not confined to any one age group, social or economic group, race or culture. In Australia the majority of infections are attributable to unsterile injecting drug use. Other risk factors include incarceration, receipt of blood products in Australia prior to 1990, unsterile tattooing or body piercing, medical and dental procedures in developing countries, and less commonly, household transmission through shared personal effects, vertical transmission (from mother to child) and needle-stick injuries. He provided no information supporting his claim after the Tribunal hearing.
The Tribunal discussed other inconsistencies in what it regarded as implausible elements of the appellant’s claimed history of homosexual activity in Australia.
Ultimately, the Tribunal then found that the appellant’s claims to have participated in homosexual activity in Australia or in India were not credible, that the appellant is not and has not been a homosexual, and would not be forced to marry if returned to India.
The Tribunal also considered that the appellant’s history of education and living in India was inconsistent with his claimed fear of harm, and that his delay in applying for protection reinforced the Tribunal’s finding that his claims were not genuine.
Consequently, the Tribunal found that the appellant did not satisfy s 36(2)(a) or (aa) of the Act.
THE FEDERAL CIRCUIT COURT DECISION
The appellant relied upon the following grounds of review in the FCCA:
(1)Decision made with lack of information on my claim for protection.
(2)Decision is not based on law.
(3)R.R.T has misused the power of making decision on my claim
(4)Decision was made without any information about me, my past life, my situation back in my Country about my problems and fears
(5)Decision was against the Migration and Refugee acts.
(6)Decision was so irresponsible
(7)R.R.T has violated my rights as refugee
It is fair to say that the appellant’s grounds of review in the FCCA, and in this Court, reflect the disadvantage of a litigant in person in the Courts without the assistance of legal advice. As is apparent, they are of a general and assertive character. They do not focus particularly upon demonstrating error of the kind which it is within the power of the FCCA to correct under the Act.
In those circumstances, it is incumbent on the Court to examine the material presented by the appellant, and the submissions made, with care so that the question of whether he has established error of a reviewable character on the part of the Tribunal in the FCCA, and in this Court, is properly considered. In addition, on an appeal from the FCCA to this Court, it is also necessary to examine that material carefully to determine whether error on the part of the FCCA, although not precisely and appropriately expressed by the appellant, might nevertheless have been demonstrated.
That level of care is shown by the reasons for judgment of the FCCA.
Grounds (3) and (6) were considered together. In my view, they were appropriately characterised as seeking “merits review” and did not give rise to a ground of error in respect of which the FCCA could have provided a remedy. It is important to point out to the applicant that the application to the FCCA was not an occasion to simply have re-heard the decision of the Tribunal. It was not a “merits review” hearing where the Court could look at all of the material before the Tribunal, perhaps receive additional evidence, and then substitute its own decision on the facts. Nor was it an occasion when the appellant could re-present his evidence in support of the visa application, adding such further evidence as he chose, and have the FCCA make a fresh decision on the facts. The FCCA’s role was to review the Tribunal decision and to decide whether it was made by some legal error – procedural or substantive – which warranted the setting aside of the Tribunal decision and the application for the visa being remitted to the Tribunal for rehearing. In short, s 474 of the Act means that the appellant had to satisfy the FCCA that the Tribunal’s decision was infected by jurisdictional error in order to engage the FCCA’s power and discretion to grant relief with respect to the Tribunal decision: see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.
Each of those two grounds were regarded by the FCCA as seeking to re-argue findings of fact on the part of the Tribunal, but without identifying any way in which the Tribunal might have misused its power in doing so.
The FCCA also grouped grounds (1) and (4) above together. It did not consider that there was any material to suggest that the applicant was unable to present to the Tribunal material which he wished to present to it, or to say to the Tribunal what he wanted to say about that material. The appellant, in the view of the FCCA, did not establish that the Tribunal misunderstood that material. It considered that the Tribunal could not properly have reached the findings of fact it made in relation to those allegations, in the light of that material.
As to grounds (2), (5) and (7), the FCCA reviewed the Tribunal’s processes. It did not consider that they demonstrated any error of law or failure to comply with the Act, or in any respect a lack of procedural fairness. There was nothing to which attention was drawn by the appellant in the course of submissions which persuaded the FCCA that those grounds had any substance.
Consequently, the application for judicial review before the FCCA was dismissed.
THE GROUNDS OF APPEAL
The appellant’s grounds of appeal in this Court are as follows:
(1)Unreasonableness and Unfairness of Procedures, as failure in accept original documents and Unwillingness and disregard to further investigate its veracity.
(2)There are some jurisdictional errors in R.R.T decision.
(3)Trying to send me back home will result in jeopardising my life, pushing me into life threatening situations being physically harmed, mentally tortured and emotionally unstable for the rest of my life.
(4)The R.R.T member made an error of law since the Decision the R.R.T member made regarding my case is wrong.
(5)Decision made with lack of information on my claim for protection.
(6)Decision was against the migration and refugee acts.
(7)Failure to consider relevant information and paying regards to irrelevant information.
(8)The R.R.T deprived me of natural justice.
On 8 October 2015, the appellant filed an affidavit attaching a copy of the Federal Circuit Court decision, a newspaper article dated 4 February 2015 and the classifieds section of a newspaper. While it is not the role of the Court to consider new information about the appellant’s claims, these two newspaper articles were before the Tribunal in any event.
The appellant has also served on the first respondent a document dated 16 November 2015 apparently as his written submissions.
In addition, although it is not precisely clear why, the appellant in a further affidavit of 18 September 2015 in support of this appeal produced two further annexures: a letter from a medical practitioner of 28 October 2015 and a medical report of 11 September 2014. The former is from the Health Service Manager, International Health and Medical Services, Wickham Point Immigration Detention Centre acknowledging receipt of a complaint regarding his treatment for hepatitis C whilst there and containing the response of that officer. The second (apparently an attachment to the first) is a radiologist’s report on an ultrasound examination of his abdomen.
Those documents cannot show error on the part of the FCCA itself, because they were not presented to the FCCA, and at least the first of those documents post-dates its decision. Their contents, moreover, do not show any legal error on the part of the FCCA or on the part of the Tribunal, as is evident from the nature of their contents as noted.
Neither that affidavit, nor in any detailed way the written submissions of the appellant, address any complaint about the manner in which the FCCA conducted the hearing of the appeal to review the Tribunal decision. Again, it appears from those documents that, in large measure, the appellant has simply sought again to re-argue the merits of the decision of the Tribunal.
The adjournment application
At the commencement of the hearing, the appellant sought an adjournment of the hearing so that he might procure legal advice. He produced, in support of that application, three documents. A letter of 16 November 2015 from the Northern Territory Legal Aid Commission to himself indicating that a solicitor had been appointed to review his claim to determine whether legal assistance would be provided to him. That claim was then referred to counsel. The second document is a memorandum from counsel to the solicitor so appointed, MSP Legal, of 17 November 2015 indicating that, in the view of that counsel, the appeal to this Court had no real prospect of success and so that legal assistance should not be provided. The third document is a letter from MSP Legal to the appellant of 18 November 2015 indicating to the appellant that he would not be granted legal assistance.
The appellant said that he had applied for legal assistance on 3 September 2015, and had been informed that there may be some delay in processing his application. He said that he had not therefore taken other steps to procure legal advice for the hearing of this appeal until recently, and then had not been notified that legal assistance was refused until 18 November 2015.
There was no material to indicate whether he had sought legal assistance for the purposes of the application to the FCCA, nor any material to indicate that he had resources available to him which he might otherwise have used to procure legal assistance for that hearing or for the appeal to this Court. He said, but there was no evidence to support it, that his cousin would pay for his legal representation. He did not indicate that he had approached his cousin either in relation to the FCCA hearing, or in relation to this hearing, either before or after his application for legal assistance or after 18 November 2015.
The application for an adjournment was opposed by the Minister.
After hearing submissions, I declined to adjourn the hearing. I was not satisfied that any delay in the hearing would present any realistic prospect of the appellant being legally advised. Nevertheless, in case that were erroneous, I conducted the hearing, and then gave leave to the appellant to file and serve further written submissions through any solicitor he engaged by 14 December 2015 (with leave to the first respondent to respond), so that he did have a further opportunity to seek legal advice and to make further submissions through that legal representative. I indicated that, depending upon any further material, I would determine the appeal on the papers unless I considered it desirable to call the matter on for further hearing.
The appellant has not provided any further written submissions.
CONSIDERATION
The appellant and the respondent then made oral submissions in relation to the appeal.
It is not shown that the Tribunal overlooked any material information, or any submissions, made by the appellant to the Tribunal. As explained, the subsequently acquired documents cannot demonstrate error on the part of the Tribunal in reaching its conclusions of fact on the material that was presented to it. In any event, I do not think that additional material could have made any difference to the conclusions of fact made by the Tribunal.
It is appropriate to consider each appeal raised by the appellant. They are all directed towards the Tribunal decision. So I infer that it is said by him that the FCCA itself erred by not recognising those matters in its analysis of the Tribunal’s decision.
In my view, the FCCA properly reviewed the procedures adopted by the Tribunal and properly concluded that there was no unfairness in those procedures, either by reference to the procedural steps imposed by the Act or otherwise. There is no material to suggest that it did not accept documents adduced in evidence by the appellant or did not properly consider his submissions in relation to them. He did not advance the suggestion of further investigation, other than by reference to a newspaper report which, in my view, could not legally have obliged the Tribunal to adopt any additional investigative procedure and could not rationally have demonstrated that the Tribunal’s decision was untenable.
Ground 2 concerning jurisdictional errors is obviously a ground which the appellant had derived from discussion with others. He did not understand the concept of “jurisdictional error”. When questioned about it, he simply sought to re-argue the decision of the Tribunal as to whether he should have been granted the visa, in essence because of his very adverse childhood experience. That, generally, was his approach to each of the grounds which somehow appear to argue legal error: grounds (4), (6) and (8). He complained of the conduct of the hearing before the Tribunal, because of its emphasis in questioning upon whether he was homosexual. He complained about the conclusion of the Tribunal. He complained about the assessment of the medical material which he asserted supported his claim to be a homosexual.
In my view, those complaints or submissions do not demonstrate that the FCCA erred in its consideration of that material, and indeed in my view the FCCA properly considered the like complaints and properly concluded that, in essence, the appellant was simply endeavouring to have reversed the adverse factual findings made by the Tribunal in relation to his claims. Those factual findings were available to be made by the Tribunal for the reasons it gave. There was nothing to indicate that its conduct of the hearing with the appellant was in any way inappropriate, or that when it was questioning the appellant about his claimed homosexuality, it was unfairly doing so. The Tribunal was entitled to raise with him matters of concern to ensure that it procured from him such comments as he was able to make to ensure that it reached a correct decision.
The other grounds, grounds (5) and (7), concern the complaint that the Tribunal’s decision was reached without supporting material, or without giving the appellant the opportunity to advance additional material in support of his claims. There is nothing to indicate that the Tribunal precluded the appellant from advancing information to it, or that it did not then have regard to that information, or that it had regard to information other than that which was formally before the Tribunal.
In his written submissions, the appellant has made reference to some recent examples of what he regards, understandably, as mistreatment of individuals in India for diverse reasons including the treatment of homosexual persons. However, he has not demonstrated any error of a reviewable kind on the part of the Tribunal in its conclusion that he was not and is not a homosexual. That was a factual finding made by the Tribunal which was available to the Tribunal and was reached without reviewable error on its part. It is apparent that he firmly disputes it. However, that position was identified by the Tribunal in the first place, as an issue it had progressed, and it was rejected.
In my view, the appellant has not demonstrated that the FCCA erred in the way it approached or considered his application for judicial review to it and he has not demonstrated on this appeal that the FCCA erred in some undefined way by the way in which he approached its assessment of the Tribunal decision.
The appeal is dismissed. The appellant should pay to the first respondent costs of the appeal to be taxed or agreed.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate:
Dated: 16 February 2016