ANV15 v Minister for Immigration

[2015] FCCA 2859

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANV15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2859

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – application for a Protection (Class XA) visa – no jurisdictional error – oral application for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) is dismissed – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.417, 476, 477(1), 477(2)

1951 Convention Relating to the Status of Refugees
1967 Protocol Relating to the Status of Refugees

Applicant: ANV15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 864 of 2015

Judgment of: Judge Hartnett

Hearing date: 29 September 2015

Delivered at: Melbourne

Delivered on: 23 October 2015

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Mr Young

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The name of the Second Respondent be changed to the Administrative Appeals Tribunal.

2. The Applicant’s oral application for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 864 of 2015

ANV15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application for an extension of time to apply for judicial review, under s.476 of the Migration Act 1958 (Cth) (‘the Act’), of a decision of the Second Respondent (‘the Tribunal’) dated 11 March 2015 affirming the decision of the Delegate of the First Respondent (‘the Delegate’) to refuse the Applicant’s Protection (Class XA) visa (‘protection visa’) application.

2. The substantive Application was filed on 23 April 2015. It was amended by Amended Application filed on 23 September 2015. The substantive Application should have been made within the 35 day period specified by s.477(1) of the Act, that is, by 15 April 2015. Accordingly, the application is eight days out of time.

3. Section 477(2) of the Act provides that this Court may, in certain circumstances, order that the 35 day period be extended. Section 477(2) of the Act is as follows: -

   “(1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

   (2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

   (a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

   (3) In this section:

   date of the migration decision means:

   (a) in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975—the date of the written decision under that subsection; or

   (b) in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal—the date of the written statement under subsection 368(1) or 430(1); or

   (c) in the case of an oral migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal—the date of the oral decision; or

   (d) in any other case—the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.

   (4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).

   (5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.”

4. The non-exhaustive list of factors to be considered by the Court in determining whether an extension of time is “in the interests of the administration of justice” include:-

   a)the extent of the delay; 

   b)the reasons for it;

   c)the merits of the proposed substantive application;  and

   d)any prejudice to the respondent. 

   There is no prejudice to the First Respondent that cannot be satisfied by a costs order.  The extent of the delay is not substantial, and the Applicant says in an Affidavit filed by him and dated 14 April 2015 in paragraph 6 therein:-

   “I hereby submit to the Court an Application for an extension of time in this proceeding due to lack of any form of legal assistance that I have at this time, and as my intellectual disability and inequal (sic) psychological health greatly reduces my ability to comprehend and understand legalities and the processes related.”

5. Although the Applicant sought an application for an extension of time in his Affidavit, he did not do so in his Application or in his Amended Application. Indeed, in answer to the question - does the Applicant apply for an order that the time for making an application be extended under s.477 of the Act as set out in the Application, the Applicant responded, “No”. I am satisfied, however, that the Applicant indeed intended to apply, and on the hearing of this matter did apply, for an extension of time within which to file his application. No objection to that was taken by Counsel for the First Respondent, and the matter proceeded on the basis that the Applicant sought such extension of time.

6. The Applicant relies in the proceedings on his initial Affidavit as referred to above and a Supplementary Affidavit affirmed on 22 September 2015, together with his Outline of Submissions filed 23 September 2015.  The First Respondent relies upon his Response dated 8 May 2015, wherein the First Respondent seeks dismissal of the application and notes that the Court has no jurisdiction to review the Tribunal decision, on the basis that it was not filed within the requisite 35 day period.  That matter has subsequently been addressed by the Applicant, and on the hearing of the matter the First Respondent sought orders that the application for an extension of time be refused or, alternatively, that the substantive application be dismissed on the grounds that the application reveals no jurisdictional error in the Tribunal’s decision.  The First Respondent also sought that costs of the First Respondent be paid by the Applicant.

7. The Applicant’s Supplementary Affidavit annexes to it as annexure “JW1” the Decision Record of the Tribunal dated 11 March 2015 (‘the Decision Record’);  Annexure “JW2” is a copy of the Convention on the Rights of Persons with Disabilities and Optional Protocol;  Annexure “JW3” is a copy of the 1951 Convention Relating to the Status of Refugees; Annexure “JW4” is headed “Conclusion on refugees with disabilities and other persons with disabilities protected and assisted by UNHCR” (EXCOM Conclusions, 12 October 2010); and Annexure “JW5” is a copy of the Alfred Psychiatry Discharge Summary of the Applicant on his admission to that hospital of 25 November 2014, and discharge date of 28 November 2014. 

8. The Court relies on the Affidavit evidence that has been filed in the proceedings and the evidence as contained in the Court Book filed on 10 June 2015, which is tendered in evidence in the proceedings.  The Amended Application seeks final orders as set out therein, and has some six grounds.  I shall not set them all out herein.  They appear in the Amended Application with various parts of the Decision Record interspersed amongst them. 

History

1. The Applicant was born on 23 November 1987 in Honolulu, Hawaii, in the United States of America.  He first visited Australia from 8 to 20 July 2009 as the holder of a Subclass 976 (Electronic Travel Authority) (Visitor) visa (‘visitor visa’).  He most recently arrived on 26 September 2012, again holding a visitor visa.  His visitor visa expired on 26 December 2012 and aside from holding a Subclass 041 (Bridging D) visa from 18 to 21 January 2013, he has remained in Australia unlawfully.

2. The Applicant’s medical records indicate that he attempted suicide on 23 November 2014.  He was subsequently admitted to the Alfred Hospital in Melbourne.  He was taken into immigration detention upon being discharged from hospital on 28 November 2014.  He applied for a Protection (Class XA) visa on 7 January 2015.  He withdrew his application for an associated bridging visa on 9 January 2015.  He remains in immigration detention at Maribyrnong. 

3. The Applicant claims to fear harm as set out in a statutory declaration dated 7 January 2015.  This declaration was made at the Maribyrnong Immigration Detention Centre before his authorised recipient, Mr Attila Mete, of BMA Lawyers Pty Ltd.  In summary, the Applicant claims that he will be killed by his parents or their criminal associates if he returns to the United States of America.  He claims he will be denied adequate mental health care, suffer racism, because of his mixed race, and religious (Baha’I Faith) persecution and will not be able to subsist.  He claims the authorities will not assist him and that his father has many connections within the navy, so they would be able to track him down and cause his death anywhere in the United States of America.

4. The Applicant and his authorised recipient attended an interview at the Maribyrnong Immigration Detention Centre on 15 January 2015 with the Delegate at which the Applicant elaborated on his claims and responded to specific questions.  The Delegate noted in his Decision Record dated 23 January 2015 that the Applicant had no formal psychiatric history, but reports a long standing history of depressed mood.  It was also noted that he had been diagnosed with bipolar affective disorder in Hawaii after a one-off assessment.  However, when presented with this information at interview, the Applicant denied ever receiving that diagnosis.  The discharge papers also recorded that the Applicant travelled to Thailand for a bilateral orchiectomy after diagnosing himself with testicular cancer and that he requires follow-up oncological care and testosterone replacement.

5. The Delegate found:-

   “no objective reason to apprehend that he [the Applicant] may face racial or religious persecution in the USA.”

6. In relation to the Applicant’s claims to fear harm from his parents or their criminal associates for reason of his race, the Delegate could not find any credible information which suggested that the authorities in Hawaii systematically discriminated against people on the basis of their race, nor had the Applicant advanced any objective information to support this claim.  The Delegate found that the Applicant’s fear of racially or religiously motivated harm did not amount to serious harm.  The Delegate further found that there was no credible evidence to suggest the Applicant would be denied adequate mental healthcare or that he would be unable to subsist in the United States of America.

7. On 27 January 2015, the Applicant made an application for review of the Delegate’s decision to the Tribunal.  On 4 March 2015, the Applicant appeared before the Tribunal to give evidence and present arguments relating to the issues in his case.  The Applicant provided a copy of the Delegate’s Decision Record dated 23 January 2015 to the Tribunal.  The Applicant was assisted before the Tribunal by his migration agent, Ms Kathleen Coffey, of BMA Lawyers Pty Ltd.  The Tribunal noted in paragraph 3 of its Decision Record that the Applicant did not appear to have any difficulties providing his evidence to the Tribunal at the hearing, and the Tribunal formed the view that the Applicant was able to appropriately take part in the hearing.

8. The Tribunal affirmed the decision of the Delegate not to grant the Applicant a protection visa.  The Tribunal firstly set out, accurately, the relevant law when considering an application of the type before it.  It considered the claims and evidence provided by the Applicant, both in the statement attached to his Application and the additional matters raised before the Delegate as set out in the Delegate’s Decision Record dated 23 January 2015.  The Tribunal also considered relevant country information.  The selection of same and weight to be attributed to it, a matter for the Tribunal.

9. The Tribunal did not accept that there was a real chance or real risk that the Applicant will suffer serious or significant harm upon return to the United States of America.  These findings were based on the following findings and reasons as set out in the First Respondent’s Written Submissions:-

   (a)as the Applicant resiled from his claims based on religion at the hearing, the Tribunal found that the applicant does not face a real chance of serious harm arising from his religion;

   (b) the Tribunal found that the Applicant does not face a real chance of serious harm as a result of his ethnicity;

   (c)in relation to the Applicant’s claims based on possible harm from his parents, the Tribunal found, on the Applicant's evidence, that the Applicant is not at risk of serious harm from his parents;

   (d)in relation to the Applicant’s claim to fear harm from criminal syndicates, the Tribunal found that this claim was not supported by evidence.  The Tribunal did not accept that criminal syndicates would harm the Applicant as a result of him being a possible informant on their affairs, or for any other reason.  The Tribunal found that the Applicant does not have a well-founded fear of serious harm in this regard;

   (e)in relation to the Applicant’s claims regarding his mental health, and being able to subsist if he returned to the United States of America, the Tribunal found that these claims were not Refugees Convention related;[1] and

   (f)the Tribunal considered whether Australia owed the Applicant complementary protection obligations, and found that it did not.

   [1] 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees.

Consideration

1. The application for an extension of time in these proceedings should be dismissed, as the Court finds there is no merit in the substantive application of the Applicant.  It must be remembered that these proceedings require the Applicant to establish that he fears persecution for a Refugees Convention reason.[2]  The Applicant submitted orally on the hearing of this matter, that the Tribunal committed jurisdictional error because it did not inquire further about his mental health.  Allegations by the Applicant that the Tribunal did not afford him procedural fairness were enmeshed in claims as to his mental health issues, in that the Tribunal was said to fail to afford the Applicant procedural fairness because it did not seek out, or require, further psychiatric investigation in relation to him.  The Applicant submitted that the Tribunal did not read the Alfred Hospital discharge papers, and that as he is a person with disabilities he should have been assisted in circumstances where he claims he was not.  The assistance which he submitted the Tribunal should have provided to him, was the arranging of a further psychiatric evaluation of him. 

   [2] 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees.

2. To the extent that the Applicant’s grounds of application contend that the Applicant was not afforded procedural fairness by the Tribunal, there is no evidence before the Court and nor is it apparent from the Tribunal’s Decision Record, that the Tribunal did not comply with its obligations under div.4 of pt.7 of the Act. The Tribunal validly invited the Applicant to the hearing, which he attended in company with his authorised representative, and at which he gave evidence in support of his claims. At the hearing the issues discussed between the Tribunal member and the Applicant were those same issues as before the Delegate, and the Applicant had provided a copy of the Delegate’s Decision Record dated 23 January 2015 to the Tribunal. The Applicant was on notice as to the determinative issues on review by the Tribunal, and was provided an opportunity to respond to such issues. The Tribunal was not required to do something more than it did, including to obtain some further assessment of the Applicant’s mental health. The Tribunal was not required to make further inquiries in that regard, nor to take further steps. It conducted a fair and open hearing; there was no breach of natural justice; and there was no illogicality or unreasonableness attending the decision or the reasoning process of the Tribunal. Rather, the Tribunal considered all of the integers of the Applicant’s claims and made findings on the basis of the evidence before it. It consulted relevant country information. The Applicant disagrees with the factual findings of the Tribunal, but factual findings are the role of the Tribunal and not this Court.

3. The Tribunal accepted that the Applicant suffered from mental health issues.  The Tribunal asked itself what that meant in respect of the Applicant’s application for protection.  The Tribunal said at paragraphs 62, 63, and 64 of its Decision Record the following:-

   “62.  With respect to the applicant’s mental health concerns and what this means for his application for protection, the Tribunal does not accept that the applicant will be denied the opportunity to access appropriate medical care in the US.  The applicant has previously had some mental health care, though disengaged when he disagreed with the preliminary diagnosis.  He then went without care for some time.  he (sic) has maintained himself in Hawaii and Australia for an extended period of time without any treatment, however came to the notice of the Department of Immigration in Australia after a significant self-harm incident after being in Australia unlawfully for around 2 years.

   63.  The Tribunal discussed the applicant's medical care in the US.  He stated that he did not qualify for health insurance as he had not been working for the requisite period to get such assistance.  The applicant acknowledged that there was a basic insurance system, but that this would mean that he would have to pay for certain treatments.  The Tribunal noted that the Affordable Care Act (ObamaCare) had been introduced in 2010 and had gradually been rolled out to provide low income adults with access to medical treatment.  The applicant was unsure about how this health assistance would affect him, as it has only been introduced since he left Hawaii in 2012.

   64.  The Tribunal considers that the introduction of this healthcare reform in the US has the ability to provide the applicant with medical treatment that he may need in the future to assist him deal with his mental illness.  The Tribunal notes that it will be up to the applicant to access such treatment options, unless he is so incapacitated that he is treated without his ability to provide consent. The Tribunal does not accept that the applicant will be denied healthcare in the USA.”

4. The Tribunal made a number of findings about the Applicant’s mental health:-

   a)the Tribunal found, at paragraph 20 of its Decision Record, when referring to the Applicant’s migration history at page 2 of the Delegate’s Decision Record dated 23 January 2015, as follows:-

   “The applicant’s medical records indicate that he attempted suicide on 23 November 2014.  He was subsequently admitted to the Alfred Hospital in Melbourne.  He was taken into immigration detention upon being discharged from hospital on 28 November 2014.  He applied for a Protection (Class XA) visa on 7 January 2015.”; and

   b)at paragraph 22 of the Tribunal’s Decision Record when referring to page 7 of the Delegate’s Decision Record dated 23 January 2015, the Tribunal said :-

   “It was noted in the applicant’s discharge papers from the Alfred Hospital that he has ‘no formal psychiatric history but reports a longstanding history of depressed mood’.  It was also noted that ‘he had been diagnosed with BPAD [Bipolar Affective Disorder] in Hawaii after [a] one off assessment’;  however, when presented with this information at interview, the applicant denied ever receiving that diagnosis.  The discharge papers also recorded that he travelled to Thailand for a bilateral orchidectomy after diagnosing himself with testicular cancer, and that he requires follow up oncological care and testosterone replacement.”

1. I note that paragraph 22 of the Tribunal’s Decision Record commenced as follows:-

   “In addition to the information in the statement, the delegate provided further information from the interview.”

2. Moreover, at paragraph 60 of the Decision Record, the Tribunal said:-

   “The Tribunal discussed the applicant’s mental health issues.  The applicant disclosed that he believes that he has severe depression, though he does not take any medication.  He saw a psychiatrist or psychologist in Hawaii, but this did not help.  He did not agree with a diagnosis of bi-polar, he said this was not helpful, he felt let down, that he was wasting his time.  in (sic) Australia he has not had any mental health assistance.  The applicant self-harmed in November 2014, the applicant presented to (sic) [at] the hearing with significant scarring on his arms which he described as suicide.  The applicant was admitted for emergency surgery at the Alfred Hospital, before being transferred to the psychiatric unit.  However he was determined to be unlawful, so was transferred to the MIDC within four days of being admitted to the psychiatric unit, no diagnosis was made.  Since he has been in detention he had weekly visits from psychologists until this stopped without warning 3 weeks prior to the hearing.  Again no diagnosis was forthcoming.  The applicant has been offered to see the counsellor by the medical team at the MIDC.” 

3. The Tribunal said at paragraph 54 of its Decision Record:-

   “The Tribunal finds that the applicant’s fears arising out of his mental health concerns and ability to subsist are not Convention related.  The Tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention reason arising out of these claims, now or in the reasonably foreseeable future.”

4. The Tribunal nonetheless made a finding that the Applicant would be able to earn a wage as he had done before in Hawaii, and subsist.

5. The Tribunal further noted in paragraph 53 of its Decision Record that the Applicant had not claimed that he would be persecuted because of his mental illness, rather that he would not receive adequate treatment for his mental illness.  The Tribunal did not consider that in that claim the Applicant fears harm due to race, religion, nationality, membership of a particular social group or a political opinion.

6. The Tribunal completed its Decision Record with a consideration of the Ministerial guidelines relating to the Minister’s discretionary power under s.417 of the Act as set out in Procedures Advice Manual 3, Minister’s Guidelines on Ministerial Powers (‘PAM 3’). The Tribunal considered the Applicant’s case should be referred to the Department of Immigration and Border Protection to be brought to the Minister of Immigration and Border Protection’s attention. The Tribunal noted in particular at paragraph 71 of its Decision Record, that it was concerned by the lack of information about the Applicant’s mental health condition. The Tribunal noted that the Applicant had self -harmed in the past and further that he stated that he would self-harm in the future should he be required to depart Australia. The Tribunal noted that it did not have the opportunity to view any medical information about the Applicant based on the evidence of the Applicant, save, obviously, that which it did view and referred to, being the Alfred Hospital discharge summary. The Applicant impressed the Tribunal as a person who required some form of medical intervention and said:-

   “The lack of information regarding the applicant’s health circumstances, and the lack of appropriate medication to minister (sic) to the applicant’s illness, is of concern to the Tribunal.”[3]

   [3] The Tribunal’s Decision Record at [71].

7. On a fair reading of the Tribunal’s Decision Record, it is clear that it carefully considered the Applicant’s claims and evidence and made findings open to it on the evidence before it. There is no merit in the substantive application as it cannot be said that jurisdictional error attends the decision. Thus, there should be no extension of time granted to the Applicant. Costs shall follow the event.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date: 23 October 2015