BWE18 v Minister for Home Affairs

[2019] FCCA 1523

FEDERAL CIRCUIT COURT OF AUSTRALIA

BWE18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1523

Catchwords:
MIGRATION – Protection Visa – whether Administrative Appeal Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeal Tribunal’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36

Cases cited:

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1

First Applicant: BWE18

Second Applicant: BWF18

Third Applicant: BWG18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 356 of 2018

Judgment of: Judge Vasta

Hearing date: 13 May 2019

Date of Last Submission: 13 May 2019

Delivered at: Brisbane

Delivered on: 13 May 2019

REPRESENTATION

Counsel for the Applicants: Ms Palaniappan

Solicitors for the Applicants: Holding Redlich

Counsel for the First Respondent: Ms S. Forder

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. That the Application filed 29 March 2018 and amended on 5 September 2018 are dismissed.

2. That the Applicant pay the costs of the First Respondent fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 356 of 2018

BWE18

First Applicant

BWF18

Second Applicant

BWG18

Third Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 26 February 2018, the Administrative Appeals Tribunal (“the AAT”) affirmed a decision not to grant the Applicant, BWE18, and his co-applicants, BWF18 and BWG18, protection visas.  On 29 March 2018, the Applicants filed an originating application asking this Court to review that decision. 

2. The background to this matter is that the First Applicant is a citizen of India, born in 1987.  He is a member of the Sikh religion.  In 2009, his wife, who is BWF18, arrived in this country on a student visa. The Second Applicant arrived in Australia with her as a “family member of a person with a student visa”.  That visa was for two years. 

3. In 2011, before that visa expired, the Second Applicant, BWF18, had an extension to that visa, which allowed her to stay here until March 2013. That had the consequential effect of extending the visa of the First Applicant.

4. The First Applicant and his wife had a son who was born in 2011 and that son is the Third Applicant, BWG18.  In February 2012, the First Applicant was charged with an offence of rape.  I don’t need to go into the details of that charge at all.  Suffice to say, he was refused bail by the Magistrates Court. 

5. I do note that it is extremely probable that my wife, who is a State Magistrate, was the Magistrate before whom the Applicant appeared on that first application and was refused bail.  I mentioned this fact to the parties before the matter started today, for them to consider any consequences.  Both parties indicated that, because of the actual issue of this particular matter, such a fact was not something that caused either party to want me to recuse myself.

6. Of course, I do not believe that it was a matter that would cause recusal in any event, but if the parties had actually asked, I would have had to consider the matter.  I simply mention that for the purpose of the chronology. 

7. I do also note that, notwithstanding that bail was refused in the Magistrate’s Court, the First Applicant did make another application to the Supreme Court, where Philippides J refused bail. 

8. For a reason that is not quite evident on the record, the prosecution declined to proceed with the matter and the charges were struck out.  That occurred in November 2012.  It meant that the First Applicant spent from February to November 2012, a period of approximately nine months, in remand custody.

9. The Applicant said that such a time had a profound impact on him.  He said he was assaulted whilst in prison, but, more importantly, that his village in India came to know of this event.  He claimed that everyone in his community insulted him in front of his parents; that his father, who was a politician with a good reputation, suffered because of that and, even though he died in a road accident in 2012, it did have an effect on him. 

10. The Applicant said that his father died before it was that the charges had been withdrawn.  He claimed that his brother’s fiancé refused to marry the brother because of the immoral reputation of the Applicant.  He claimed that his sister had also been humiliated by her colleagues and she finds it now hard to find a husband because of the fact that the First Applicant had been in custody in Australia.

11. He fears that if he had to go back to India, he would be, in effect, ostracised by society; his son would not be able to go to school or play outdoors and that meant that his son would become illiterate and unemployed.  The Applicant said that he didn’t have a future in India and therefore needed protection and help from Australia to start a new life here. 

12. Those claims were reiterated before the AAT, but, immediately prior to the hearing, the First Applicant wanted, or requested, that his own mental health be included as a claim and that his son’s mental condition and speech condition be included as a claim.

13. This meant that the First Applicant put before the Tribunal a range of material which included a report from a psychologist that was prepared, it would seem, for what was ultimately an unsuccessful application for an ex gratia payment, as well as other reports from specialists who have been looking at the progress of the son.  There’s also a letter of support from the First Applicant’s treating psychiatrist. 

14. The Tribunal must look at the claims that are made by the First Applicant to support the application; that is, it must engage with the claims that the First Applicant has made to see whether it is that Australia does owe a duty of protection to the First Applicant.

15. However, s.36(3) of the Migration Act 1958 (Cth) (“the Act”) says:

    (3) Australia is taken not to have protection obligations in respect of a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non‑citizen is a national.

16. The AAT, in this case, noted that, because of an arrangement that India has with Nepal, the First Applicant has a right to enter and live in Nepal. There are some restraints upon that. Section 36(4),(5) and (5A) states that:

    (4) However, subsection (3) does not apply in relation to a country in respect of which:

    (a) the non‑citizen has a well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

    (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non‑citizen will suffer significant harm in relation to the country.

    (5) Subsection (3) does not apply in relation to a country if the non‑citizen has a well‑founded fear that:

    (a) the country will return the non‑citizen to another country; and

    (b) the non‑citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.

    (5A) Also, subsection (3) does not apply in relation to a country if:

    (a) the non‑citizen has a well‑founded fear that the country will return the non‑citizen to another country; and

    (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non‑citizen will suffer significant harm in relation to the other country.

17. Therefore, what the AAT did was to look at whether or not the First Applicant would suffer those detriments that have been expressed in the legislation if the First Applicant went to Nepal.  The AAT looked at the Article 7 of the Indo-Nepal Treaty of Peace and Friendship of 1950.  That article says,

    The Governments of India and Nepal agree to grant, on a reciprocal basis, to the nationals of one country and the territories of the other the same privileges in the matter of residence, ownership of property, participation in trade and commerce, movement and other privileges of a similar nature.

18. Upon that material, the Tribunal found that the First Applicant could go to Nepal. 

19. The Tribunal ended up adjourning the hearing, which was held in November of 2017, for some three months and resumed it in February 2018.  The reason for the adjournment was stated at paragraph 109:

    109. It was apparent to the Tribunal that the applicants were not in a position to discuss the application of subsections 36(3), (4), (5) and (5A) of the Act during the hearing. Accordingly, the Tribunal invited the applicants to offer further evidence before or during the next hearing.

20. Now, the way in which the Tribunal expressed its reasons, which were given in February 2018, is that the Tribunal, after coming to a conclusion that the First Applicant could go to Nepal, then looked at what would occur if the First Applicant did go to Nepal. 

21. The AAT looked at DFAT reports, looked at what the healthcare system was like and, more importantly, looked at whether there was a real chance of persecution, a real risk of significant harm in Nepal.  Having gone through all of those things, the Tribunal then, in the reasons, looked at whether Nepal would return the First Applicant to India. 

22. Having gone through that aspect in the reasons, the Tribunal then talked about the adjournment and what evidence had been provided to the Tribunal by the Applicants, both before the hearing resumed and actually at that hearing.

23. What has been submitted to me is that the Tribunal has, in effect, conducted another hearing in February 2018 and that, if one looked at the way in which the reasons were written, what the Tribunal has done is to come to, in effect, a preliminary conclusion and had given all the reasons for that.  In February 2018, it was simply conducting a supplementary hearing, which meant that it had to, in effect, go through the whole process again, because the hearing that occurred in February 2018 was, actually, a new or supplementary hearing, which meant that all of the provisions that the Tribunal had looked at previously, had to be looked at again.

24. I do not accept that submission.  The Applicant has looked at the reasons and come to the conclusion that what the Tribunal has done is to give a linear approach to what had happened.  That is, that having raised the prospect of Nepal as a place that the Applicants could go, had already come to a particular view at the time that the adjournment occurred. 

25. If one goes through what the Tribunal has spoken about, it is clear that the Tribunal has turned its mind to all of the matters that the Tribunal has to look at when the hearing occurred.  There are plenty of references to DFAT reports and what has occurred in Nepal that simply were things that the Tribunal had not, and did not, talk about prior to the adjournment. 

26. All that was said, if one looks at the statement of reasons in their proper context; that is, looking at the decision as a whole, was the Tribunal simply going through the reasons why, in the Tribunal’s view, having applied s.36(3), that s.36(4), (5) and (5A) did not apply.

27. What the Tribunal has then ensured was contained in their reasons, is the fact that the Applicants did have the chance, during a three-month adjournment, to put more material before the Tribunal. The Tribunal has detailed what that other material is and how it has dealt with that, which does, to use the word I have used earlier, supplement the reasons that the Tribunal has already given.

28. The Tribunal found that s.36(3) applied and, therefore, Australia did not owe protection obligations to the Applicants. For that reason, they affirmed the decision.

29. On 5 September 2018, in accordance with orders that Registrar Belcher had earlier made, the Applicants filed an amended originating application. That application had one ground, which was that the Tribunal failed to consider s.36(5) of the Act in its application in the particular circumstances of the First Applicant.

30. There have been a number of particulars given in the application itself, but the argument boiled down to this; the claim was made that the Tribunal did not engage with a claim that the First Applicant’s mental health was a matter that could cause Nepal to return the First Applicant to India. 

31. The First Applicant did raise his mental health.  As I’ve already spoken, this is one of the matters that he wanted to have as a claim before the Tribunal.  It was a claim that was in addition to his claim of persecution because of his imprisonment on a charge that was ultimately not proceeded with.  He also wished to add the claim regarding his son’s condition.  So therefore there were three aspects to his claim before the AAT.

32. The aspect of mental health was one that the Tribunal did go through quite thoroughly. Paragraph 102 reads as follows:

    102. The Tribunal has noted that the applicant has claimed that he suffers from depression and PTSD. The Tribunal has considered the medical report submitted and accepts the applicant suffers from a depressive disorder for which he is receiving treatment…

33. Therefore, this aspect of his mental health was accepted by the Tribunal.  However, when looking at whether the Applicant would be persecuted because of this in Nepal, the Tribunal further said in that same paragraph:

    However, the applicant has not claimed, and when asked, has not responded that he fears he will be persecuted or that he will be subjected to significant harm because of that depression in Nepal.  The Tribunal asked the applicant whether he felt he would be denied medical assistance in India or Nepal because of his mental health.  The applicant replied that he is of a different culture and spoke a different language, and wouldn’t be able to speak to them.  The Tribunal noted that he and the Nepalese spoke Hindi. 

34. The Tribunal also looked at whether the son would be persecuted as well and could not come to a conclusion that the First Applicant’s son would be persecuted.

35. The Tribunal then looked at s.36(5) and (5A); paragraphs 106 to 108 are recorded this way:

    106. The Tribunal has considered whether s.36(5) or (5A) apply, such that s.36(3) does not apply.  That is whether the applicant has a well-founded fear that Nepal will return him to India. 

    107. There is no evidence before the Tribunal that Indian citizens residing in Nepal, under the terms and administrative arrangements relevant to the Indo-Nepal Treaty of Peace and Friendship of 1950, have been returned without reason. 

    108. The Tribunal is satisfied that given all of the applicant’s circumstances, and as particularly outlined in paragraph 96 above, there is no real chance that the applicant would be returned to India by Nepal.  There is not a well-founded fear that Nepal would return the applicant to India or any other country.  The Tribunal finds the qualifications in s. 36(5) and (5A) are not enlivened.

36. The First Applicant says this could not be so because the Tribunal did not consider, realistically, a specific reason that the First Applicant would be returned and that is because of his mental health.  The First Applicant says that this claim was squarely raised. 

37. The First Applicant pointed to the articles that the First Applicant had submitted to the Tribunal regarding how Nepal dealt with mental health.  That article is contained in the court book at page 79.  That article, from 30 December 2010, noted that more than 6 million Nepalese, that is, 20 per cent of the population, had symptoms of mental health disease in 2010.  The article itself spoke of the appalling state of mental health treatment in Nepal, and, in effect, was saying that there was very little done for people who have suffered mental health.

38. The article finishes by saying that non-government organisations remain the last hope for mental health patients, but, even then, only a handful of the 275 rights-based NGOs nationwide target the mental disabled population, according to the article, and most of them do not receive enough outside funding support, and they have to rely on their own, limited funds.  Patients are treated for free by NGOs, which, however, are mostly focused on psychosocial counselling; there is little clinical treatment of patients with severe depression. 

    Deteriorating mental health was a serious concern and the consequences were quite shocking

    was a quote from one person, and the statistic given was that in less than ten months in 2010 the Nepal police recorded a total of 7,300 cases of suicide nationwide, more than half of which were women.

39. Whilst that article was used as the basis for a submission that there would be persecution of the First Applicant, it is very difficult to see that there was anything in that article that would raise a spectre of the First Applicant being removed from Nepal to India because of his mental health.  If anything, it was an article that showed that the First Applicant would be ignored and not be the recipient of government healthcare.  The Tribunal had already noted that the standard of healthcare was quite inadequate in Nepal.

40. There is nothing else to suggest that this aspect of mental health would be a reason why the First Applicant would be returned.  It is not as if a situation that is often spoken about in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 has arisen here; that is, that this was a claim that one could see had been squarely raised upon the evidence, notwithstanding that the First Applicant himself had not raised it.

41. It is instructive, as well, that the adjournment was for the purposes of the First Applicant coming to grips with s.36(3), (4), (5) and (5A). Upon all of the material and all of the submissions made afterwards, there was no suggestion made that anything of this nature would give rise to a well-founded fear of removal from Nepal back to India.

42. In much the same way, as has been pointed out by Counsel for the Minister, there is nothing to suggest that the Nepalese Government, upon finding out that the First Applicant had spent nine months in remand custody in Australia for a crime that was not ultimately proceeded upon, would use that fact as a reason to remove the First Applicant from Nepal to India.  Such a claim was not squarely raised on this evidence either. 

43. The Tribunal at the end of the decision said this:

    124. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence in submissions, country information from Nepal as discussed with the applicant, and as submitted by the applicant, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance the applicant will suffer persecution on the grounds of his being a Sikh, an Indian, as one suffering mental health issues, his son suffering speech and developmental issues, him having been accused of rape, his claims as to financial and employment issues, or any other reason if he enters Nepal now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason now, or in the reasonably foreseeable future, if he enters and resides in Nepal.

44. Those are all of the Applicant’s claims individually and cumulatively. 

45. The Tribunal, in giving an overall conclusion, said at paragraph 127:

    127. The Tribunal further finds that the applicant does not have a well-founded fear of being returned from that country to a country where he has a well-founded fear of being persecuted. Nor does the applicant have a well-founded fear of being returned by Nepal to a country where there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant availing himself of the right in s.36(3), there would be a real risk of the applicant suffering significant harm.

1. It seems to me, then, that the Tribunal has looked at all of the circumstances that had arisen and which claims were squarely raised.  This claim was not squarely raised, and, it seems to me, the failure to consider that claim is not a failure to consider a claim that was squarely raised.

2. In those circumstances, there is no jurisdictional error. 

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 27 June 2019