BPH16 v Minister for Immigration

[2018] FCCA 1880

FEDERAL CIRCUIT COURT OF AUSTRALIA

BPH16 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1880

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant applicants protection visas – whether Tribunal prevented applicants from making submissions on an aspect of their claim – whether the Tribunal considered whether there was a real risk applicants would suffer significant harm if returned to their country of nationality – no jurisdictional error.

Legislation:
Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 48A

Cases cited:
SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71

First Applicant: BPH16

Second Applicant: BPI16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3804 of 2017

Judgment of: Judge Manousaridis

Hearing date: 20 June 2018

Date of Last Submission: 20 June 2018

Delivered at: Sydney

Delivered on: 11 July 2018

REPRESENTATION

Applicants in person assisted by an interpreter

Solicitor for the First Respondent: Ms S Given of HWL Ebsworth Lawyers

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3804 of 2017

BPH16

First Applicant

BPI16

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants, who are citizens of the Republic of Korea (Korea), apply for judicial review of a decision of the second respondent (Tribunal) setting aside the decision of a delegate of the first respondent (Minister) not to grant the applicants a Protection (Class XA) visa (Protection visa) and substituting a decision to refuse to grant the applicants a Temporary Protection (Class XD) visa (Temporary Protection visa).

Background

1. The first applicant and second applicant are husband and wife. They entered Australia on transitional (temporary) (Class UA) visas on 21 August 1990. These were valid until 21 February 1991.[1] The applicants remained in Australia as unlawful non-citizens and they lodged an application for protection visas on 20 December 1993 (First Protection visa application). Only the first applicant made substantive claims for protection; the second applicant was included as a member of the first applicant’s family unit. A delegate refused the First Protection visa application on 31 May 1994,[2] and the Refugee Review Tribunal (RRT) affirmed the delegate’s decision on 31 May 1995.[3]

   [1] CB4

   [2] CB1-10

   [3] CB11-39

2. On 29 June 1995 the applicants lodged a second application for Protection visas (Second Protection visa application) with the second applicant making claims for protection and the first applicant included as a member of the second applicant’s family unit.[4] A delegate refused the Second Protection visa application on 22 May 1996[5] and the RRT affirmed the delegate’s decision on 3 September 1996.[6]

   [4] CB40-49

   [5] CB62-75

   [6] CB76

3. The applicants remained unlawfully in Australia from 18 July 2003 to 1 August 2012.[7] On 16 April 2014 the applicants lodged a third Protection visa application (Third Protection visa application). That application was treated as a valid application, notwithstanding s.48A of the Migration Act 1958 (Cth) (Act), because of the decision of the Full Federal Court in SZGIZ v Minister for Immigration and Citizenship.[8] In the Third Protection visa application the first applicant made claims for protection with the second applicant being included in the first applicant’s family unit.[9]

   [7] CB202, [4]

   [8] [2013] FCAFC 71

   [9] CB93-121

Claims for protection

1. The first applicant stated his claims for protection in a statement dated 2 April 2014 that accompanied the Third Protection visa application. They were as follows:[10]

   [10] CB110-111

   a)The first applicant left his country for a better life and better education for his children in Australia, especially after his involvement in a demonstration in Kwangju. The first applicant continues to have “disturbing memories as a result of the demonstration” and “at the time” the first applicant considered it as persecution.

   b)Even though the first applicant did not suffer persecution at the time, he continues to have a subjective fear of persecution and he “strongly believes that the main aim coming to Australia was for the education and better life” for his children.

   c)The first applicant did not suffer physical harm in his country but he did experience “emotional and mental harm” as he always had some fear of being detained and persecuted.

   d)The first applicant was originally self-employed and owned a carpentry business in Korea, which he closed when he came to Australia.

   e)At the time of the first applicant’s arrival in Australia he had a genuine fear of returning to Korea. The “Department took into view” and the first applicant “admitted openly” his high skills as a carpenter and how he “worked in Australia” and why he does not wish to return to Korea.

   f)When the first applicant came to Australia he continued to fear returning to Korea for “political opinion such as my involvement in demonstration”. In around 1980 the first applicant was involved with the “huge student demonstrations against the military regime”. “At the time” the first applicant’s brother in law was injured and the first applicant was under the constant watch “by the CIC of the Military regime”.

   g)The first applicant cannot “forget the bad memories” and he has “always wanted to go back but had the fear to return to Korea”.

   h)The first applicant asks the Department of Immigration to take into consideration the length of time he has spent here and how long he has been away from Korea and that the majority of his family is here.

   i)If the first applicant goes back to Korea he will be persecuted. The first applicant, however, will not suffer harm by “my own Koreans” but he will suffer because he will be take away from Australia, “a country which I consider as my own country” and at the first applicant’s age he will be hurt and seriously affected to be away from his family here.

   j)The first applicant considers Australia to be his country; that he has worked very hard here; that he has paid his taxes; that his children and grandchildren are well adjusted here; and if for some “technical issues” the first applicant needs to go back, he will go back but the first applicant hopes “that the Australian government will welcome me back to join my family soon”.

Before the Tribunal

1. The applicants appeared before the Tribunal on two occasions. The first was on 27 May 2016 (First Hearing), and the second was on 8 November 2017 (Second Hearing). That there were two hearings is due to the Tribunal’s having made a decision (First Decision) after the first hearing which was set aside by this Court. The second hearing occurred after the First Decision was set aside. The matter came before the Tribunal member who made the First Decision. I mention these matters because the Tribunal’s decision record refers to the First Decision having been set aside, and to the applicant appearing again before the Tribunal. The decision record, however, states that the applicant “re-appeared before the Tribunal on 27 May 2016 to discuss the jurisdictional error”.[11] That is obviously an error, and I find the Tribunal intended to record that the applicants appeared again before the Tribunal on 8 November 2017.

   [11] CB275, [13]

Tribunal’s decision

1. Applying the reasoning of SZGIZ v Minister for Immigration and Citizenship[12] the Tribunal found that it did not have the power to consider whether the applicants satisfied the criterion in s.36(2)(a) of the Act. It therefore considered the first applicant’s claims only under the complementary protection provisions under s.36(2)(aa) of the Act.[13]

   [12] [2013] FCAFC 71

   [13] CB274, [8]

2. The Tribunal first set out the matters that occurred at the First Hearing. The Tribunal noted it had there discussed with the applicants in some detail the criteria for protection under s.36(2)(aa) of the Act noting that it explained to the applicants that to meet the complementary protection criteria provided for in s.36(2)(aa) of the Act the Tribunal must have substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to the Republic of Korea there is a real risk they will suffer significant harm.[14] After discussing elements of the complementary protection criteria, the Tribunal set out matters that were discussed at the First and Second Hearings.

   [14] CB276, [19]

3. As to what was said at the First Hearing, the Tribunal referred to the following:

   a)The first applicant was “quite clear” he did not meet any of the criteria relevant to determinations under s.36(2)(aa) of the Act, and that the first applicant said in effect that the essential and significant factor in his leaving and remained outside Korea was economic and emotional.[15] The first applicant also said he was still adept as a carpenter.[16]

   b)The second applicant asked the Tribunal to consider that requiring the applicants to leave Australia, after being in Australia for so long, would be akin to leaving them to die, as they have no pension in Korea and no support there; that the  applicants have a married daughter in Korea and according to tradition she must look after her husband’s parents, not her own; that the financial support they receive from their adult children in Australia might not be sufficient to sustain them in Korea; and the second applicant would feel better if the applicants could help with the raising of their Australia grandchildren in exchange for some financial support.[17]

   c)The applicants argued that they have made significant and continue to make a significant and emotional contribution to their family in Australia.[18]

   [15] CB277, [24]

   [16] CB277, [25]

   [17] CB277, [25]

   [18] CB277, [26]

4. The Tribunal concluded that the matters raised by the applicants at the First Hearing were “social and emotional factors for wanting to remain in Australia with their children, grandchildren and local parish”.[19]

   [19] CB277, [26]

5. As to what was said at the Second Hearing the Tribunal noted the following:

   a)It asked the applicants whether there were any additional facts they wished the Tribunal to consider. The applicants said they had an additional grandchild whom they would miss if they were removed to Korea.

   b)The applicants’ son said that the applicants’ migration agent had sought judicial review due to a perceived failure by the Tribunal to consider supporting letters and other material that had been submitted with their application. The Tribunal responded by acknowledging there were some letters of support relating to the applicants’ bonds with family members in Australia, and that the Tribunal generally accepted the applicants’ claimed attachment to family members in Australia, and their fears about economic and social hardship had generally been accepted as fact.[20]

   c)The second applicant said she would feel trauma were she required to leave her grandchildren behind in Australia, notwithstanding that five of them lived far from Sydney in Melbourne.[21]

   d)The Tribunal went through the “five forms of “significant harm” exhaustively defined in the Migration Act”, and the applicants both said they did not claim that “the disaffection they might experience in the event of removal to Korea would rise to the level of “significant harm” as defined in the Act”.[22]

   e)The applicants’ son raised concerns that the prospect of separation from family in Australia might exacerbate the second applicant’s health issues; and that if the second applicant were to return to Korea she would be disadvantaged because all her medical records are in Australia and this would impact on her ability to attend to her health in Korea.[23] After it recorded these submissions the Tribunal noted that the applicant’s son “did not identify any element of an intentional infliction of harm in making these points”.[24]

   [20] CB277, [28]

   [21] CB277, [28]

   [22] CB277, [29]

   [23] CB277-278, [30]

   [24] CB278, [30]

6. The Tribunal concluded that, having considered the applicants’ claims separately and cumulatively, it was not satisfied that the problems they raised, and the reasons they gave for not being removed to Korea, involves harm sufficient to be regarded as “significant harm” for the purposes of the Act.[25] The Tribunal concluded, therefore, it was not satisfied it had substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Korea there is a real risk they will suffer significant harm.[26]

   [25] CB278

   [26] CB278, [34]

Grounds of application and course of hearing

1. The applicants’ grounds of application are:

   1.    The decision of the Tribunal failed to consider the significant harm and risk or cruel and inhumane treatment we will suffer if we return to Korea especially the issue of relocation. The Tribunal unreasonably stated that it would be reasonable to relocate. Such decision is wrong because of the age factor and other circumstances provided to the Tribunal which were not considered properly.

   2.    The Tribunal misunderstood and misapplied the law.

2. As is my usual practice, I explained to the applicants, who are not legally represented but who appeared with the assistance of an interpreter, that the purpose of the hearing before me was to hear submissions from the applicants in support of their application that I set aside the Tribunal’s decision, and to hear submissions from the Minister that oppose the applicants’ submissions. After I explained the procedure to the applicants, and admitted documents into evidence, I invited the applicants to make submissions, and these were made by the second applicant.

3. The second applicant referred to matters she stated to the “immigration officer”, by which I understood the second applicant meant an officer of the Department of Immigration and Border protection (Department) which, in turn, I infer the second applicant intended to refer to the delegate. The second applicant said she stated that she had a problem so, therefore, she should stay in Australia; the applicants’ daughter in Korea was not sufficiently financially secure to look after the applicants; that at the moment the applicants are living in Australia “relying on insurance”; and the second applicant has a joint problem requiring an injection every month. After the second applicant confirmed to me that these were matters that occurred before the Department I informed her I did not have any power to do anything about what the delegate did, and that my focus is on what the Tribunal did or did not do.

4. I then asked the second applicant whether she had any complaint about what the Tribunal did or did not do. The second applicant mentioned two matters. First, the second applicant said the Tribunal “didn’t let me talk”. I asked the second applicant a number of times what she meant by her statement that the Tribunal did not let her talk. The effect of what the second applicant said to me is that when the second applicant explained her health conditions, the Tribunal said it already knew, and that the second applicant did not need to tell the Tribunal anything further. The second applicant later said that it was the delegate who told the second applicant not to say anything further about her health. The second matter the second applicant mentioned is that “at the immigration, the male officer” at the Department told the first applicant he was not eligible and he should get out.

5. I then asked the interpreter to interpret each of the grounds stated in the application, and I asked the second applicant whether she wanted to say anything about each ground. As to the first ground, the second applicant said that if she goes back to Korea, nobody could help her; that all the applicants’ children are “paying the insurance”; that everything is done by their children; and that if the applicants return to Korea the children will not be able to help. The second applicant said nothing in relation to the second ground.

6. From this description of what occurred at the hearing before me, I will take the applicants as relying on the two grounds stated in the application, and on the two matters the second applicant identified at the hearing before me.

Did the Tribunal tell the second applicant not to say anything further about her health?

1. There is not in evidence a transcript of the hearing before the Tribunal. I did read, however, over objection from Ms Given who appeared for the Minister, an affidavit made by the applicants’ son. In that affidavit the applicants’ son deposes that he listened to the audio of the hearing before the Tribunal on 8 November 2017, and he “transcribed English part of it”. What he transcribed is attached to the affidavit (Partial Transcription).

2. Ms Given directed my attention to the following passage from the Partial Transcription (errors in original):

   Tribunal:[27]      We’ve also done a third thing today which is to discuss the question of asking the minister to intervene on humanitarian ground.

   [27] The Partial Transcript described the Tribunal member as “Judge”

   Ok now, if we discussed, basically all we need to discuss within those points.

   Second App:  Can I talk?

   Tribunal:Go ahead.

   Second App:  Whenever I have similar situation like today my heart is tumbling and I feel like dying.

   Tribunal:Thank you. I might stop you there. That might be you wanna put in your request for ministerial intervention. You are here today and you have spoken for yourself and your husband.  

   I say again, having discussed the reason for remittal, referenced to appropriate visa, having discussed whether there is new information, having discussed the question of ministerial intervention.

   Are there any other issues we haven’t discussed?

   Second App:  I mentioned before but if I go back to Korea I cannot live there.

   Tribunal:Ok. You have mentioned that before. . . .

   . . . .

   Tribunal:Now I’m thinking to close hearing shortly. Anything else to raise?

   First app:No.

3. Ms Given submitted that the second applicant appears to have been confused when making submissions to me about the occasion in which she was told she did not need to say anything further about her health condition; and that this extract from the Partial Transcription – to the extent it can be accepted as accurate – appears to be the closest in the evidence before me of the Tribunal telling the second applicant she need say nothing further about her health condition. Ms Given submits, however, that nothing in this passage, when read with the Tribunal’s reasons for decision, indicates the Tribunal prevented the second applicant from putting to the Tribunal all she wanted to put in relation to her health. Ms Given submitted that although the Tribunal did suggest to the second applicant she might stop, that related to the discussion the Tribunal member was having about the possibility of the applicants applying for Ministerial intervention. Ms Given further submitted that the hearing before the Tribunal continued and the applicants were given a further opportunity to say what they wanted to say. In these reasons I will assume the Partial Transcription is accurate.

4. Given the Partial Transcription relates only to part of the hearing of before the Tribunal, it must be considered with what the Tribunal in its reasons for decision says occurred at the hearing. In particular, it must be considered with what the Tribunal recorded in its reasons was said about the first applicant’s mother’s health. As I have already noted, the Tribunal’s reasons record that the applicant’s son raised a number of matters relating to the first applicant’s health; and as I have also already noted, the Tribunal said that the points the applicants’ son made “did not identify any element of an intentional infliction of harm”.[28]

   [28] CB278, [30]

1. The passage from the Partial Transcription certainly records the Tribunal member stating to the first applicant that she “might stop there”. I am not satisfied, however, that this should lead me to find that the second applicant was prevented from putting to the Tribunal everything that she wished to say in support of her application for protection based on her health. First, the exchange occurred towards the end of the hearing. By that stage the applicants’ son had made submissions relating to the second applicant’s health. Second, the Tribunal stated to the applicants the reasons why the second applicant “might stop there”. These were that what the first applicant intended to say was something that should be submitted in support of an application for Ministerial intervention, and that the second applicant was “here today and you have spoken for yourself and husband”. I find that this ought reasonably to have been understood by the applicants and their son that the Tribunal stated to the second applicant that she “might stop there” because the Tribunal was of the view that the second applicant was intending to repeat what she or the applicants’ son had already said about the second applicants’ health. Third, if the applicants and their son felt they had not already said all the second applicant wished to say about the second applicant’s health, the Tribunal gave the applicants the opportunity to do so. That opportunity was near the end of the meeting when the Tribunal asked “are there any other issues we haven’t discussed?” and also asked whether there was “[a]nything else to raise”.

2. In my opinion, therefore, the Tribunal made no jurisdictional error by stating you “might stop there”; and I am not satisfied the Tribunal did anything that prevented the applicants from putting to the Tribunal all they wanted to put to the Tribunal.

3. As for the second matter the second applicant said she had a complaint about – the applicants being told the first applicant was not eligible and he should get out – there is nothing in the material before me that suggests the Tribunal said any words to that effect to the applicant.

Ground 1 of grounds of application

1. The reference in this ground to “relocation” might suggest the applicants contend the Tribunal considered the question of relocation within Korea. The Tribunal, however, did not consider that question. I therefore interpret use of “relocation” in ground 1 to be intended to refer to the applicants’ relocation from Australia to Korea.

2. So understood ground 1 makes two claims. First it is said the Tribunal failed to consider the significant harm and risk or cruel and inhumane treatment the applicants will suffer if they were to return to Korea. So stated, this claim assumes the applicants would suffer significant harm and risk of cruel and inhumane treatment if they return to Korea. Whether they would suffer significant harm, however, or be exposed to the risk cruel or inhumane treatment if they were to return to Korea, were questions for the Tribunal to consider; and as I have already set out, the Tribunal did consider those questions. There is no error in the manner in which the Tribunal considered those questions, and find that it was reasonably open to it to conclude, for the reasons it gave, that it was not satisfied it had substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Korea there is a real risk the applicants will suffer significant harm.[29]

   [29] CB278, [34]

3. The second claim ground 1 makes is that the Tribunal acted unreasonably in concluding it was reasonable for the applicants to relocate to Korea. The Tribunal did not consider whether it would be reasonable for the applicants to relocate from Australia to Korea. The Tribunal, however, made no jurisdictional error by not considering that question. Whether or not it would be reasonable for the applicants to relocate to Korea was not the question the Tribunal was required to consider. The question the Tribunal was required to consider, and which it did consider, was whether the applicants satisfied the complimentary protection criterion provided for by s.36(2)(aa) of the Act.

4. Ground 1, therefore, fails.

Ground 2 of grounds of application

1. Ground 2 makes an unparticularised claim the Tribunal misunderstood and misapplied the law. There is nothing in the material before me that suggests the Tribunal misunderstood the statutory tasks it was required to perform when reviewing the application for review that was before it; nor is there any suggestion that in performing those tasks the Tribunal misapplied any principle of law or statutory provision that was relevant to the conduct of its review.

2. Ground 2, therefore, also fails.

Conclusion and disposition

1. The applicants have failed to demonstrate the Tribunal made any jurisdictional error. I propose, therefore, to order that the application be dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  11 July 2018