BYL15 v Minister for Immigration

[2017] FCCA 967

FEDERAL CIRCUIT COURT OF AUSTRALIA

BYL15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 967

Catchwords:
MIGRATION – Protection visa – factual error made by Tribunal in relation to applicant consulting medical practitioner – finding that no evidence that applicant’s capacity to recount his history was affected by a medical condition – Tribunal’s finding not affected by factual error – merits review – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: BYL15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2184 of 2015

Judgment of: Judge McNab

Hearing date: 8 May 2017

Date of Last Submission: 8 May 2017

Delivered at: Melbourne

Delivered on: 8 May 2017

REPRESENTATION

The Applicant in person

Counsel for the Respondents: Mr L.Brown

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application filed 23 September 2015 be dismissed; and

2. The applicant pay the first respondent’s costs fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2184 of 2015

BYL15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

DELIVERED EX-TEMPORE (REVISED FROM TRANSCRIPT)

Introduction

1. By an application filed on 23 September 2015, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 7 September 2015 under the Migration Act 1958 (Cth) (‘the Act’). By that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a Protection visa.

2. On 2 March 2016, the Court listed the matter for final hearing on 12 May 2017 and made procedural orders under which the applicant was required to file and serve written submissions 42 days before the hearing.

3. That order was not complied with. However, written submissions were filed by the applicant on the morning of the hearing on 8 May 2017. The Court has had regard to them and counsel for the Minister had the opportunity to review the submissions prior to him making submissions to the Court. 

4. The application filed by the applicant identified two grounds upon which he was relying on, being:

   a)a failure on the part of the Tribunal to give consideration to evidence provided by the applicant that he would be harmed on his return to Sri Lanka due to his political involvements in that country; and

   b)the failure to give consideration to the applicant’s status as a returned asylum seeker and the significant risk that he would face torture and/or imprisonment if he was returned to Sri Lanka.

5. In the written submissions filed at the hearing on 8 May 2017, a third ground was identified by the applicant, being a failure on the part of the Tribunal to:

   …It is a well-known fact that refugee and asylum seekers suffer from medical and mental problems caused by a combination of their life of persecution, struggling to escape and often treacherous journeys that they may make across countries to find safety.  The Applicant left his family, his life, suffered through a very hard journey and has had to cope with living in Australia and awaiting the stress of his application and determination outcomes.[1]

   [1] Submission of applicant dated 8 May 2015 [14].

Background

1. A summary of the claims that were made by the applicant in his Protection visa application on 18 December 2012 is set out at paragraph 11 of the reasons of the Tribunal.  Those matters are:

   a)that he was a Sinhalese Catholic who was from Negombo in Sri Lanka;

   b)he completed Year 10 at school in 2006 before working as a fisherman between 2007 and his departure in July 2012. 

   c)in January 2012, he has assisted a political party, the UNP, by working as a driver and hanging posters in support of the party at district elections held on 15 January 2012;

   d)the UNP were unsuccessful in the election.  Following the election, supporters of the rival party described by the applicant as ‘the Sri Lankan party’ were seeking to hurt UNP supporters.  A brother in law of the applicant’s friend had been injured due to being a UNP supporter.  He moved to Baththalangunduwa, an island approximately seven hours away from Negombo to avoid the risk of violence;

   e)While in Baththalangunduwa, the applicant had problems with the navy as they would take the best and biggest fish of his catch and he could not seek recourse or protection and he considered that he had jumped from the fire the to frypan and he will never be safe anywhere he goes in Sri Lanka, so decided to leave. 

2. On 12 December 2013, the delegate refused the visa application. 

3. On 16 December 2013 the applicant applied to the Tribunal for merits review.  The hearing was postponed as a result of the applicant’s ill health and was subsequently held on 24 August 2015. The applicant presented for the hearing by videoconference at a Tribunal venue in Newcastle whilst the presiding member and interpreter were in Melbourne and his representative was in Sydney.

4. On 28 August 2015, the applicant’s representative submitted country information to the Tribunal that had been referred to at the hearing.

5. The Tribunal, in its reasons for decision, which are detailed and comprehensive, considered the applicant’s evidence and affirmed the delegate’s decision not to grant the visa. In reaching its decision, the Tribunal did not accept that the applicant was politically active or that he was at risk of being harmed on account of his political opinion due to concerns about the applicant’s credibility. The appraisal of that evidence is detailed and comprehensive.

6. The Tribunal took into account the claims that had been made both in the statutory declaration that was provided in support of the Protection visa application and the evidence that was given before the delegate.[2] The Tribunal found that the applicant’s evidence about his political activities were vague and inconsistent and noted that key parts of the claim had not been made until the Tribunal hearing.[3] The Tribunal considered, in detail, the claims about political activity and went so far as to take into consideration the Sri Lanka Department of Elections website, which provided details of past elections in Sri Lanka.[4]

   [2] Tribunal decision dated 7 September 2015 [15]-[23].

   [3] Ibid [16].

   [4] Ibid [20].

7. The Tribunal stated:

   The Tribunal notes according to this website there were no local authorities elections held in 2010. In regard to the election in 2012, the applicant claimed that the provincial council elections were held in the first month or so. However, according to the Department of Elections website, provincial council elections were held in September 2012.[5]

   [5] Ibid.

8. The Tribunal noted that the applicant stated that he may have made a mistake, however the Tribunal made a finding of fact that it did not accept that the applicant had attended UNP party meetings and pasted posters or drove vehicles during those elections and that, had he done so, he would have been able to identify, with some degree of accuracy at least the month and year in which those elections were held.[6]

   [6] Ibid.

9. Further, the Tribunal did not accept that the applicant had been harassed by the navy whilst in Baththalangunduwa and noted that details of harassment by the navy were not given at earlier times when he had the opportunity to tell the delegate and the Department of those matters.[7]

   [7] Ibid [25]-[26].

10. The Tribunal considered the country information that had been provided to it by the applicant’s representative and considered DFAT information in relation to conditions in Sri Lanka and, in particular, the return of failed asylum seekers.[8] It did not accept that the applicant was at risk of harm due to the fact that he left Sri Lanka illegally or because of his status as a failed asylum seeker. In part, that finding followed the conclusions that it reached in relation to his involvement in political activities.

    [8] Ibid [30]-[40].

11. In relation to the third ground that was identified in the written submissions filed by the applicant on the day of this hearing, the Tribunal in fact did consider the health of the applicant and asked questions about it and dealt with that in some detail.[9] The Tribunal noted a submission that was made at the conclusion of the hearing by the applicant’s adviser that he may be affected by some medical or mental condition and the applicant’s adviser submitted that the applicant should be given the benefit of the doubt that this may explain some of the discrepancies in the evidence that he had given.

    [9] Tribunal decision dated 7 September 2015 [29].

12. The Tribunal noted that, in the course of the hearing, there was nothing on the Department’s file or the Tribunal’s file indicating that the applicant had received any medical attention including from psychiatrists.[10] The Tribunal noted that the applicant was given time after the hearing to submit the letters referred to by the applicant’s advisers during the hearing and that it had not received any letters or medical evidence confirming that the applicant had seen a psychiatrist or medical practitioner and was on medication either at the time he was interviewed by his adviser or at any time.[11]

    [10] Ibid.

    [11] Ibid.

13. The Tribunal did not accept that the applicant was on medication at the time he made his statutory declaration or was interviewed by his adviser and therefore did not accept that this may explain the deficiencies in the applicant’s evidence.[12] I do note that the respondent’s submissions referred to the applicant attending the Box Hill Hospital Emergency Department on 30 March 2015 (when the hearing was fixed before the Tribunal). The documents relevant to that attendance are found at pp.241-3 of the Court Book. Those documents are a medical certificate from the Hospital stating that the applicant had presented to the Box Hill Hospital Emergency Department on 30 March 2015 with a medical condition. The other document is a letter from the applicant’s legal representative dated 30 March 2015 which states (omitting irrelevant parts) that:

    At approximately 9:20 AM this morning, we received a call from Box Hill Hospital to advise us that Mr. (the applicant) has been admitted with a neurological condition. We have been instructed that the Applicant is scheduled to undergo a number of neurological tests/scans to determine the exact condition and cause thereof.

    We have asked that Box Hill Hospital provide us with confirmation of this admission by fax as soon as possible. However, it has not arrived.[13]

    [12] Ibid.

    [13] Court book, 241.

14. There was a subsequent provision of a medical report from Dr Punchieawa, a consultant neurologist, who stated in a letter to Dr McLean of the Emergency Department at the Box Hill Hospital that he saw the applicant at the Dandenong neurology clinic on 4 May 2015 as he had been referred by the neurology registrar from the Box Hill Hospital for assessment.

15. The letter states in substance that he saw the applicant at the Dandenong neurology clinic on 4 May 2015; that the applicant had been admitted to Box Hill Hospital on 30 March 2015; and that he had developed a headache in the early hours of the morning on that day while he was talking to his family on the telephone. He had described symptoms of headache that lasted about seven hours and paraesthesia that had lasted several hours before resolving. The applicant was not on regular medications; there were no persisting local neurological deficits or concerning history to suspect a significant structural lesion in the brain.

16. The Tribunal was of the view that the medical report from the neurologist did not support a submission in support of an application for an adjournment of the hearing listed on 18 May 2015. The Tribunal did adjourn the hearing scheduled to be held on 18 May 2015 on the basis of a letter from the neurologist dated 14 May 2015 which stated

    I would like to confirm and reiterate that I do not recommend inducing any stressors in my patient until the investigation which has been requested are completed to exclude a neurological conditional or underlying lesion etc. contributing to his recent illnesses.[14]

    [14] Court book, 259.

17. The Tribunal’s finding that the Tribunal had not received any letters or medical evidence confirming the applicant had seen a psychiatrist or medical practitioner was plainly incorrect in light of the documents referred to. In particular, the applicant did see a neurologist. However there is no evidence that the applicant was on medication or affected by illness at the time that he made his statutory declaration or was interviewed by his adviser or indeed when he appeared before the tribunal on 24 August 2015.

18. I do not believe that the error made by the Tribunal in relation to whether or not the applicant had seen a medical practitioner at any time is such as to constitute a jurisdictional error. The material finding was that there was no evidence that the applicant’s capacity to recount his history was affected by a medical condition is not affected by the factual error made by the Tribunal.

19. As was submitted by counsel for the Minister, the grounds of review and the submissions filed in support of those grounds are essentially challenges to findings of fact and ask this Court to engage in merits review of the decision of the Tribunal, which is beyond the jurisdiction of this Court.

20. In my view, the Tribunal dealt with the applicant’s claims in a detailed way. The Tribunal’s findings were open to it for the reasons given by it and there is no basis for a claim that the decision was not rationally based.

21. In the circumstances, I dismiss the application.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 15 May 2017