BDB15 v Minister for Immigration

[2017] FCCA 2601

FEDERAL CIRCUIT COURT OF AUSTRALIA

BDB15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2601

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – extension of time application – adequate explanation for eight month delay – no reasonable prospects of success in substantive application.

Legislation:
Migration Act 1958, ss.477, 477(2)
Mental Health Act 2014 (Vic)

Cases cited:

SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556; [2016] FCAFC 69
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
Tisdall v Webber and Others (2011) 122 ALD 49; [2011] FCAFC 76

Applicant: BDB15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 1415 of 2015

Judgment of: Judge Riley

Hearing date: 27 April 2017

Date of last submission: 19 September 2017

Delivered at: Melbourne

Delivered on: 27 October 2017

REPRESENTATION

Counsel for the applicant: Angel Aleksov

Solicitors for the applicant: Victoria Legal Aid

Counsel for the first respondent: Julia Lucas

Solicitors for the first respondent: Clayton Utz Lawyers

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Clayton Utz Lawyers

ORDERS

1. The application for an extension of time filed on 23 June 2015, amended on 21 March 2017 and further amended on 4 April 2017 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1415 of 2015

BDB15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for an extension of time in which to file an application seeking review of a decision made by the Refugee Review Tribunal (“the Tribunal”).  In that decision, the Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a protection visa. 

2. The decision of this court was reserved pending the decision of the High Court on appeal from SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556; [2016] FCAFC 69. The High Court upheld the decision of the Full Court of the Federal Court in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34.

Extension of time application

1. The Tribunal’s decision was made on 8 September 2014. Under s.477 of the Migration Act 1958 (“the Act”), any application to this court was to be filed within 35 days of the date of the Tribunal’s decision, subject to any extension of time granted by the court.  The application to this court was not filed until 23 June 2015.  Consequently, the application was about eight months late.

2. Under s.477(2) of the Act, the court has power to extend the time for the filing of an application if the court is satisfied that it is necessary in the interests of the administration of justice to do so.

3. In considering whether to grant an extension of time, the court must consider:

   a)the length of the delay;

   b)the reasons for the delay;

   c)the prejudice to the parties of the grant or refusal of an extension of time;

   d)the public interest in there being an end to litigation about the efficacy of the acts or decisions of public bodies or officials; and

   e)the merits of the substantive application.

4. As stated, the delay was about eight months. 

5. In his original application, when the applicant was unrepresented, the applicant said that the grounds of his extension of time application were:

   1.mental + medical issues

   2.homelessness

   3.recent hospital visit

6. The applicant said in his affidavit affirmed on 23 June 2015:

   1.My circumstances – medical & mental health

   2.Decision record & health reports are attached

   
   

   Social service letter

   3.I wish to provide further documentation if requested

7. The applicant attached a number of documents to his affidavit.  The first attachment was a letter dated 18 August 2014 addressed to the Tribunal.  It was from a psychiatrist at Orygen Youth Health.  It indicated that the applicant was 24 years old at the time.  It said:

   a)the applicant had a chronic depressive disorder with psychotic symptoms and suicide risk;

   b)the applicant’s mother had died and the applicant had lost all contact with the remainder of his family; and

   c)the applicant lacked motivation and had some problem drinking behaviour.

8. The second attachment was a letter from the emergency services section of the Royal Melbourne Hospital.  It said that the applicant presented to the emergency department on 29 November 2013 with a fractured wrist following an assault.  It said that the applicant:

   a)had a personality disorder and depression;

   b)had a laceration to his wrist following an episode of self-harm in August 2013; and

   c)had had surgery for a brain cyst on 16 October 2013.

9. The third attachment was a letter dated 30 September 2013 from the department of neurosurgery at the Royal Melbourne Hospital to the psychiatry unit at Western General Hospital.  It said that the applicant had depression and a personality disorder.  It also said that the applicant had a cyst in his brain which required surgery.

10. The fourth attachment was in substance a copy of the third attachment.

11. The fifth attachment was a letter dated 23 May 2014 from the Australian Red Cross.  It said that the applicant had applied for an income payment through the Australian Red Cross Asylum Seeker Assistance Scheme and that he was currently receiving no income.

12. In both his amended application filed on 21 March 2017, and his further amended application filed on 4 April 2017, at both of which times the applicant had legal assistance, the applicant said that he was not seeking an extension of time.  That was clearly in error.

13. The hearing before this court occurred on 27 April 2017, at which time the court reserved its decision pending the High Court’s decision on appeal from the decision of the Full Court of the Federal Court in SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556; [2016] FCAFC 69. Following the High Court’s decision in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34, on 18 September 2017, by consent, the court gave the applicant leave to file and serve a supplementary affidavit by 20 September 2017 dealing with the extension of time issue, and gave the Minister leave to file a response by 27 September 2017. The applicant filed a supplementary affidavit on 19 September 2017. The Minister did not file any responding material.

14. In his supplementary affidavit, the applicant explained that he now understood that, for his extension of time application, he needed to provide material relating to the period between the Tribunal’s decision, on 8 September 2014, and the date of his application to this court, which was filed on 23 June 2015.  The applicant attached a number of documents to his supplementary affidavit.

15. The first attachment was a clinical review and management plan from Orygen Youth Health.  It said that:

    a)the applicant’s mother had died from TB when the applicant was three years old;

    b)his father remarried when the applicant was about five years old;

    c)the applicant’s brother had died from TB when the applicant was 16 years old;

    d)the applicant’s grandfather died in the same year as his brother and his grandmother died the previous year;

    e)since his brother’s death, the applicant’s father had tried to get rid of him;

    f)on 6 August 2013, the applicant had surgery on his left wrist for a laceration resulting from an impulsive suicide attempt;

    g)the applicant had a full range of depressive symptoms;

    h)he had researched psychosis on the internet;

    i)he had auditory and visual hallucinations which involved hearing and seeing his deceased brother, grandmother and grandfather who tell him to join them;

    j)he was concerned that the Royal Melbourne Hospital had planted a tracking device in his brain during brain surgery;

    k)birds spoke to him and told him to leave the material world;

    l)he had researched bipolar disorder on the internet and felt that he identified with the diagnosis;

    m)between August 2014 and October 2014, the applicant was offered weekly appointments at Orygen Youth Health but did not attend them;

    n)in January 2015, Orygen Youth Services and the Asylum Seeker Resource Centre arranged housing funding for the applicant but he disappeared;

    o)in September 2013, the applicant attempted to jump off a bridge at Southern Cross Station in front of a VLine train but a friend prevented him;

    p)the applicant had a past history of other suicide attempts;

    q)he could drink half a bottle of scotch on a single occasion;

    r)he uses 1g of cannabis every two days; and

    s)the applicant has some friends with whom he does DJing.

16. The second attachment is a discharge summary from North Western Mental Health dated 25 May 2015.  It repeated many of the statements in the first attachment but also said:

    a)a friend had told the applicant’s father he was a drug dealer and gambler and the father said he never wanted to see the applicant again;

    b)the applicant became difficult to contact after October 2014;

    c)he attended St Vincent’s Hospital emergency department on 23 April 2015 and said he had been couch surfing;

    d)he discharged himself prior to follow up being arranged;

    e)his principal diagnosis was major depressive disorder, which was recurrent and severe with psychotic symptoms; and

    f)his additional diagnoses were post-traumatic stress disorder, borderline personality disorder requiring further assessment, alcohol dependence, polysubstance use, lack of supports, homelessness and visa issues.

17. The third attachment is an Orygen Youth Health discharge checklist dated 2 June 2015.  It said:

    a)the applicant had an unplanned discharge and was lost to follow up;

    b)the last face to face contact was on 5 January 2015;

    c)there was no liaison with family or carers regarding discharge; and

    d)the applicant had disengaged.

18. The fourth attachment is nursing notes from the Royal Melbourne Hospital emergency department for an attendance on 24 March 2015.  It said that:

    a)the applicant had been brought in by the police under s.351, presumably of the Mental Health Act 2014 (Vic.);

    b)he had been hiding in Officeworks;

    c)he believed people were out to get him and there were snipers about;

    d)the police were called;

    e)he was not sure if he had used ice that day, but later admitted that he had;

    f)he was highly anxious, agitated and possibly homeless;

    g)he had no suicidal thoughts; and

    h)he was discharged at 4am.

19. I am satisfied that the applicant’s physical, mental health and social issues provide an adequate explanation for his delay in filing an application to this court.

20. The first respondent did not point to any prejudice arising from the grant of an extension of time.  Clearly, the applicant would suffer considerable prejudice if an extension of time were not granted.

21. I am conscious of the public interest in there being an end to litigation about the efficacy of the acts or decisions of public bodies or officials.

22. I turn now to a consideration of the merits of the substantive application to determine whether the applicant has a reasonable prospect of success.

The applicant’s claims

1. The applicant is a citizen of India.  He arrived in Australia on a student visa in October 2008.  The student visa expired on 15 March 2012: CB80. On 7 October 2013, the applicant applied for a protection visa.

2. The applicant claimed to fear harm from his family.  He said that they had deprived him of financial support, had forced him to follow a religion and had subjected him to torture, violence, mental harassment and cruelty.  He claimed that he would not be afforded state protection because the Indian authorities were corrupt and were allied with those who were threatening him.

The delegate’s reasons

1. The delegate considered that the applicant’s claims were not credible or genuine. The delegate considered that the applicant had probably applied for a protection visa as a last bid to remain in Australia (page 5 of the delegate’s decision).

The Tribunal’s reasons

1. The Tribunal accepted that the applicant’s father is a practising Sikh but that the applicant had ceased to be a practising Sikh.  The Tribunal accepted that the applicant’s relationship with his father had completely broken down.  The Tribunal accepted that, if he returned to India, the applicant would not be able to live with his father and that the Sikh community would reject him.  However, the Tribunal did not accept that the applicant would be subjected to mental harassment, cruelty, assault or torture by his father or his community if he were to return to India.

2. The Tribunal accepted that the applicant would be on his own in India with no support and no money.  However, the Tribunal noted that the applicant had worked while he was in Australia and concluded that he did have the capacity to earn an income.

3. The Tribunal accepted that the applicant had a mental illness and considered that his symptoms were currently controlled by treatment.  (The Tribunal’s decision was dated 8 September 2014.)  The Tribunal considered certain country information.  The Tribunal accepted that there were limited mental health resources in India and that the applicant may have difficulty accessing them.  However, the Tribunal considered that any difficulty the applicant may face in accessing adequate health care was not due to his membership of a particular social group but was for reasons of a lack of resources.  In those circumstances, the Tribunal did not consider that the applicant faced a real chance of serious or significant harm as a result of his mental health needs.

Ground 1

1. The first ground of review in the application filed on 23 June 2015, amended on 21 March 2017 and further amended on 4 April 2017 is:

   The relied upon finding for which there was no evidence before the Tribunal being that certain country information indicated that the lack of care for mentally ill people is not due to an intention by the Indian government to inflict cruel or inhuman treatment or punishment or cause extreme humiliation.

2. The essence of this ground, as explained in oral submissions, is that there was allegedly no evidence that the lack of care afforded to mentally ill people in India was the result of a lack of resources, rather than the result of an intention by the Indian government to inflict cruel or inhuman treatment or punishment or cause extreme humiliation.

3. In relation to this ground, the Tribunal said in its reasons for decision:

   53.The Tribunal accepts that the applicant has a mental illness and the symptoms are currently being controlled by treatment. As discussed with the applicant the delegate noted:

   The Ministry of Health and Family Welfare estimated that 6 to 7 percent of the population experienced a mental or psychosocial disability. Of the individuals with mental disabilities, 25 per cent were homeless, and many in rural areas did not have access to modern mental health-care facilities. Disability rights activists estimated that the country had 40 to 90 million persons with disabilities. The NGO CRY estimated that one in 10 children in the country had disabilities. There were three mental-health institutions run by the federal government and 40 state-operated mental hospitals nationwide.

   Most of those with mental disabilities were dependent on public health-care facilities, and fewer than half of those who required treatment or community support services received such assistance5.(emphasis added)

   5     US Department of State Country Reports on Human Rights Practices for 2013 India 

   54.The UK Home Office report quoting World Health Organization (WHO) Project Atlas Country Profile for India, 2005 stated:

   ―A large, mostly indigenous, pharmaceutical industry ensures that most psychotropic drugs are available often at a fraction of their cost in high-income countries6

   The WHO report further stated, ―NGOs are involved in advocacy, promotion, prevention, treatment and rehabilitation. NGOs are involved in counselling, suicide prevention, training of lay counsellors and provision of rehabilitation programmes through day care, sheltered workshops, halfway homes, hostels for recovering patients and long-term care facilities. Parents and other family members of mentally ill persons have recently come together to form self-help groups.

   55.The Tribunal accepts that mentally ill people amount to a particular social group. The country information indicates that mentally ill people in India are an identifiable group. They are distinguished by their illness and need for treatment and there are NGOs invoked (sic) in advocacy, promotion, prevention, treatment and rehabilitation which indicates that they are a cognisable group. Their common attribute is not a shared fear of persecution. The Tribunal finds that mentally ill people in India are a particular social group.

   56.The country information indicates that there are limited mental health facilities in India and that many are homeless and fewer than half of those who required treatment or community support services received such assistance. The Tribunal does not accept that the applicant will be unable to obtain any treatment for his mental illness in India but accepts that in his situation with no support that it may be difficult to access. However the essential and significant reason why the applicant may not be able to access adequate health care is not for reasons of his membership of this particular social group but rather due to a lack of resources and therefore is not persecution within the meaning of s91(1) of the Act. The Tribunal finds that the applicant does not have a well-founded fear of persecution due to his membership of the particular social group of mentally ill people.

   57.Under Australian law, cruel or inhuman treatment or punishment must be intentionally inflicted and degrading treatment or punishment must be intended to cause extreme humiliation.7 Mere negligence or lack of resources does not suffice to give rise to cruel or inhuman or degrading treatment or punishment under Australian law. The country information above indicates that the lack of care for mentally ill people is due to a lack of resources, rather than an intention by the Indian government to inflict cruel or inhuman treatment or punishment or cause extreme humiliation. Inadequate health care does not appear to give rise to significant harm under Australian law. The Tribunal finds that there are no substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to India there is a real risk that he will suffer significant harm on this basis. (emphasis added)

   6     At para 27.11

   7 See SZSPE v MIBP [2013] FCCA 1989 27 November 2013

4. The applicant argued that there was no evidence for the Tribunal’s positive finding in paragraph 57 of its reasons for decision that:

   the lack of care for mentally ill people is due to a lack of resources … .

5. The applicant specifically said that he did not attack the Tribunal’s findings with respect to the intention of the Indian government.[1] The applicant said that he attacked the positive finding that the lack of care of people with mental health problems in India was due to a lack of resources.

   [1]     Tr. p.8, ll.21-22

1. The court noted during oral submissions that the US State Department Report cited by the Tribunal at paragraph 53 of its reasons for decision said that:

   fewer than half of those who required treatment or community support services received such assistance … .

2. The court asked whether that meant that there was a lack of resources.  The applicant said that it did not[2], and the Tribunal did not have any evidence to support the conclusion that the lack of care for mentally ill people in India was due to a lack of resources.  The applicant accepted that there was evidence of a lack of care and evidence of a lack of resources, but said that there was no evidence that the latter led to the former.[3]

   [2]     Tr. p.9, l.3 and 9

   [3]     Tr. p.9, l.17 to 37.

3. The applicant said in his written submissions that the country information relied on by the Tribunal was the country information set out in paragraphs 53 and 54 of its reasons for decision and no other country information.  However, those paragraphs had footnotes to other country information that was annexed to an affidavit affirmed by Sarah Fisher on 26 April 2017.

4. The Minister submitted, firstly, that the Tribunal actually found that the applicant would be able to access mental health treatment in India, and, by implication, the issue raised by the applicant was irrelevant.  The finding relied on by the Minister was in paragraph 56 of the Tribunal’s reasons for decision, where the Tribunal said:

   The Tribunal does not accept that the applicant will be unable to obtain any treatment for his mental illness in India but accepts that in his situation with no support that it may be difficult to access.

5. The Tribunal did not say how difficult it thought it might be for the applicant to obtain treatment.  It is also noteworthy that the Tribunal said that it did not accept that the applicant would be unable to obtain any treatment. The Tribunal did not suggest that the applicant would be able to obtain adequate treatment.

6. In circumstances where fewer than half those people in India needing mental health treatment are able to obtain it, and in circumstances where the applicant did not have any family support, it cannot be assumed that the Tribunal meant that the applicant would be able to obtain adequate mental health treatment.  It is perhaps for that reason that the Tribunal went on to consider whether the limited mental health resources in India gave rise to the applicant facing a real risk of serious or significant harm.  Consequently, I do not accept that the applicant’s point is made irrelevant by the finding that:

   The Tribunal does not accept that the applicant will be unable to obtain any treatment for his mental illness in India …

7. Secondly, the Minister submitted that there was evidence supporting the positive finding that:

   the lack of care for mentally ill people is due to a lack of resources …

8. The Minister said that evidence was firstly the country information cited by the Tribunal at paragraph 53 of its reasons for decision that:

   fewer than half of those who required treatment or community support services received such assistance … .

9. It is true that, as the applicant submitted, that passage does not contain specific evidence of a causal effect between the lack of resources and the lack of care.  However, in considering the no evidence ground, the court must consider whether there was evidence before the Tribunal from which rational inferences could be drawn, as opposed to mere speculation.[4]

   [4]     Tisdall v Webber and Others (2011) 193 FCR 260 at [127] to [131]; (2011) ALD 149; [2011] FCAFC 76

10. In addition to the country information cited by the Tribunal in its reasons for decision, the Minister secondly relied on other country information that was before the Tribunal.  The Tribunal referenced that country information in footnotes and was obviously aware of it. 

11. For example, the WHO report, which is annexure 3 to Ms Fisher’s affidavit, said under the heading, General Information:

    The country [ie India] is a low income group country (based on World Bank 2004 criteria). …

    …

    The country spends 2.05% of the total health budget on mental health. …

12. The US State Department Report mentioned by the Tribunal said at page 53 that:

    The Persons with Disabilities Act (PDA) provides equal rights for persons with a variety of disabilities, including … mental illness.  The law is weakened by a clause that links implementation of programs to the “economic capacity and development” of the government.

13. The same report, at page 2, referred to an overburdened and underresourced court system. At page 48, the report said that the Constitution provided for free education for children aged six to 14 but said that the government did not always provide this education.

14. The country information clearly indicated that there were limited resources in India for a variety of governmental programs, and that India is a low income country.  Based on all of this country information, it seems to me that it was well open to the Tribunal to infer that the lack of care in India of people with mental health issues was due to a lack of resources.  That is, I do not consider that it is reasonably arguable that there was no evidence to sustain the finding that:

    the lack of care for mentally ill people is due to a lack of resources …

Ground 2

1. The second ground of review in the application filed on 23 June 2015, amended on 21 March 2017 and further amended on 4 April 2017 is:

   The Tribunal applied the wrong test in relation to the assessment of the “intention” of the state actor with respect the infliction of cruel or inhuman treatment or punishment.

2. In the light of the decision of the High Court is SZTAL, this ground does not have a reasonable prospect of success.

Conclusion

1. After taking into account all of the factors discussed above, and giving particular weight to the fact that neither of the applicant’s grounds has reasonable prospects of success, the application for an extension of time will be refused with costs. I will hear the parties on the quantum of costs.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date:      27 October 2017