BZAFT v Minister for Immigration

[2016] FCCA 1234

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAFT v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1234

Catchwords:
MIGRATION – Application for judicial review of Refugee Review Tribunal decision – application identical in substance to that in related case of applicant’s brother – whether Tribunal erred in not ordering psychiatric assessment of applicant’s capacity to give evidence – whether Tribunal erred in failing to give weight to applicant’s mental health difficulties – Tribunal not falling into error – application dismissed.

Legislation:

Migration Act 1958

Applicant: BZAFT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 973 of 2013

Judgment of: Judge Demack

Hearing date: 30 May 2014

Date of Last Submission: 30 May 2014

Delivered at: Rockhampton

Delivered on: 20 May 2016

REPRESENTATION

Counsel for the Applicant: Mr Barataraj

Counsel for the First Respondent: Ms Stoker

Solicitors for the Respondents: Clayton Utz Lawyers

ORDERS

1. That the applicant’s application for an extension of time pursuant to s.477 of the Migration Act 1958 be dismissed.

2. That the applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 973 of 2013

BZAFT

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an Application in which the applicant seeks an extension of time pursuant to s.477 of the Migration Act 1958 (“the Act”). It is common cause that his Application for judicial review of a decision of the Refugee Review Tribunal (“Tribunal”), dated 28 June 2013, was 87 days out of time. The applicant submits that this delay is satisfactorily explained and that his substantive Application has merit. The first respondent takes issue with both those contentions.

2. For the reasons that follow, I think that the submissions of the first respondent are correct and it follows that the Application for an extension of time will be dismissed.

The Application for Extension of Time

1. The applicant’s Initiating Application relevantly asserted:

   “I am not assisted by any lawyer at present and my English proficiency is poor, hence, I had difficulties with getting assistance to file this case.  I hope to send this before the 35-day deadline.  Please accept my application, which may arrive late by a few days due to these logistical reasons.”

2. It should be noted that the grounds of the substantive Application were very broadly drafted and merely asserted legal error on the part of the Tribunal.  The affidavit in support merely appended a copy of the Tribunal’s decision.

3. The applicant filed an Amended Application on 13 December 2013 which sought interim orders for the appointment of a litigation guardian and for the applicant to undergo psychiatric and psychological assessment and, if necessary, the appropriate treatment before allowing to appear before the court.  The substantive grounds of application are, in essence, largely similar to those in the matter of BZAFS, who is the applicant’s brother.  Their cases were heard together at their request before the Tribunal.  It should be noted, however, that the grounds of application had an additional ground relating to the applicant’s mental health, which was:

   “The Tribunal erred in law in interviewing the applicant without assessment of his mental capacity.”

4. I have already dealt with the extension of time issue in the decision in BZAFS, which should be read in conjunction with these reasons for judgment to avoid duplication.  I refer to and repeat my remarks at paragraphs 11-17 explaining why in general terms I find the explanation of delay unsatisfactory.

5. In this case, however, the applicant not only suffers from the difficulties which BZAFS faced, but has the added burden of his ill‑health.  He was effectively quite clearly reliant upon his brother to assist him in bringing the Application.  While I still think a measure of criticism is fair inasmuch as the Application was substantially late as a result of the failure of the applicant’s agent (his brother and possibly his migration agent) to file the material, I should make it clear that I regard this is a matter of less significance in this case than I did in BZAFS.

The Substantive Grounds of Application in the Applicant’s amended Application

Ground of application

1. The Tribunal erred in law interviewing the applicant without assessment of his mental capacity.

Particulars:

a)    Throughout the interview the Applicant was only stating that he was afraid he would be burnt.  He was unable to answer any question coherently and relied on his carer brother to answer for him.  In fact the Applicant stated words to mean that whatever his brother said will hold for him.  The Applicant denied any knowledge of being in prison but later admitted that he spent 4 years in an Sri Lankan detention centre with his brother just before he arrived in Australia.

b)    The Tribunal was aware that the Applicant had sustained severe head injury that could have caused brain damage and was being cared for and given medication by his brother.  The Tribunal was also constantly reminded by the consultant throughout the interview that the Applicant was having psychiatric problems.

1. At this point it is appropriate to examine what material was put before the Tribunal by the applicant.  The applicant was the subject of an Irregular Maritime Arrival Entry Interview recorded at Court Book (“CB”) 503-518.  It was conducted with the assistance of a Tamil interpreter.  At CB512 the applicant gave the reason why he left Sri Lanka.  He said this was because of conflict between Tamil and Sinhalese people and that he was afraid he would be burned with petrol, and that was why he and his brother came to Australia.  He identified Sinhalese as those who would burn him.  He said that:

   “In 2002 the (sic) tried to beat me up but I escaped.”

   The applicant said that in 2012 people had come in vans to ask him to join in racial conflict which scared him, so he left.  The people in the vans were Sinhalese.

2. I note that CB519-520 there is a medical certificate dated 2 July 2012 from the Psychiatry Clinic, Colombo North Teaching Hospital, Ragama, which names the applicant as a person treated for schizophrenia and gives details of his drug treatment for it. 

3. The applicant’s Application forms for the protection visa are at CB443-454, and CB455-470, respectively.  They were completed with the assistance of an identified migration agent.  The applicant’s reasons for leaving Sri Lanka are set out in a Statement at CB437-438.  Relevantly, the applicant asserted that in 1993 he was hit on the head by Sinhalese adults near his home and has suffered a mental illness since then.  At paragraphs 6-7 the applicant said:

   “6.    Because of the fight that happened between the Tamil and Sinhalese people I would be in danger and that’s why I left.  I was afraid that they would burn me with petrol and that is why me and my brother came to Australia.

   7.    A white van came and scared us.  In front of our house they burned people.  I saw the people from the white van burning people with tyres and I was scared that they would do the same to me, because I am Tamil and they are Sinhalese.”

4. The Statement went on to refer to lack of State protection and the applicant’s incapacity to relocate to somewhere safe in Sri Lanka.

5. The decision of the delegate is at CB411-431.  The delegate noted the applicant’s schizophrenia and the resultant difficulties that this would give to the quality and detail of the information in submissions he provided to the Department (CB411).  It noted that BZAFS had assumed a protective role over the applicant and had assisted him in the various processes, including the interview with the delegate.  The delegate recorded the applicant’s assertion of incarceration from 2008 for four years, and his further detention between February and March 2012 (CB412).

6. At CB413 the delegate records conversation with BZAFS at the interview about BZAFT and the history of his illness.  The delegate expressly took into consideration the various matters asserted by BZAFS about the applicant’s difficulties in recall (CB423).

7. The delegate noted that the applicant had, at least in part, been able to speak in some detail with the delegate about his childhood and early adult years (CB417) and found at CB418:

   “I accept that he has a genuine subjective fear of persecution (including by being burned) by Sinhalese persons in Sri Lanka.  I also accept all the submissions that (BZAFS) made on his behalf.  In summary, I accept that the applicant is from Wattala, a suburb of Colombo and has been suffering from schizophrenia for many years and that (BZAFS) has been his primary caregiver during this time.  I accept it is plausible that they were imprisoned during the context of the final years of the civil war.  I note that there have been reports of white van appearances in 2012 and I therefore accept as plausible that he and his brother were abducted earlier this year, as (BZAFS) has claimed.”

8. Put shortly, despite these findings, the delegate was not satisfied that the applicant would face Convention‑based persecution or significant harm within the meaning of the complementary protection regime if returned to Sri Lanka.  I note that the delegate was conscious of the applicant’s ill‑health as a separate possible cause of significant harm (CB429).

9. The applicant then applied (albeit seven days late) for a review of the delegate’s decision to the Tribunal.  The Tribunal wrote to the applicant’s agent on 14 March 2013 with an invitation to appear before the Tribunal on 11 April 2013 (CB354).

10. On 2 April 2013 the applicant’s representative emailed the Tribunal (CB346) relevantly stating:

    “Following an interview between our agent, Marg Le Sueur and the applicant and his brother on 27 March, 2013, we have serious concerns regarding the legal capacity of our client (BZAFT).

    We enclose herewith a report showing that (BZAFT) has an acquired brain injury. 

    Accordingly we ask that the Tribunal order an assessment of (BZAFT’s) mental capacity and his capacity to give instructions. 

    If he is found to be not competent to give legal instructions we ask that the Tribunal appoint a guardian from whom we can take instructions.  Furthermore we note that the attached letter from Dr Fawcett indicates that his brother may not be a suitable guardian/instructor.”

11. The medical material forwarded did indeed show significant health difficulties on the applicant’s part.

12. On 4 April 2013 an officer of the Tribunal rang the applicant’s representative and relevantly recorded (CB337):

    “I stated that the Tribunal does not intend to order that the client undertake a medical or psychological assessment or compel the client to undertake such assessments.  I said that if the representative believes that the applicant is not fit to participate in a hearing and wishes to request a postponement, the representative should submit medical evidence in relation to the applicant’s capacity to participate in a hearing.  I said that if a hearing postponement was required, that the Tribunal be informed as soon as possible, as the hearing is on 11 April.  I also asked that the representative inform the Tribunal as soon as possible before the hearing on 11 April of any matters or special needs or requirements the representative considers the Tribunal should be aware of with regard to the conduct of the hearing.”

13. The person to whom the Tribunal member spoke undertook to get back to the Tribunal as quickly as possible.  On 5 April 2013 the applicant’s representative forwarded a letter to the Tribunal to which I shall return in a moment.  The migration agent enclosed the applicant’s medical records which are at CB94-351.

14. The letter relevantly said as follows (CB93):

    “Although we continue to hold concerns about (BZAFT’s) ability to give a proper account of his circumstances, (BZAFT) will attend the interview as scheduled on Thursday, 11 April.

    Your office has asked our office for information concerning any special requirements that (BZAFT) may have.

    We email herewith a copy of (BZAFT’s) detention medical file.

    You will note from the medical file the extent to which (BZAFT) is dependent upon his brother, (BZAFS).

    Accordingly we request that (BZAFS) be allowed to remain in the hearing room throughout (BZAFT’s) evidence.  (BZAFS) understands that he will not be allowed to speak for his brother.  However, as notes in his medical records, (BZAFT) can become very stressed and distressed when separated from his brother and we believe that it might help to facilitate communication between (BZAFT) and the Tribunal if his brother were allowed to be present.

    We also advise that Sam Drew, the Red Cross Caseworker for (BZAFT) and (BZAFS) will be attending the hearing at the request of the brothers as a support person.”

15. On 5 April 2013 the applicant’s representative forwarded a review submission to the Tribunal (CB80-90).  This noted the applicant’s significant mental illness as well as possible intellectual disability and consequential inability to properly articulate his claims (CB81).  The submission drew the Tribunal’s attention to the RRT Guidelines on Vulnerable Persons.  It noted the applicant’s dependence upon his brother.  The submission also asserted at CB81:

    “We submit that these issues need to be considered cumulatively.  (BZAFT’s) significant mental illness not only makes it difficult for him to provide detailed information in support of his claim, but, more importantly, is likely to significantly affect the way in which he is likely to be able to respond to questioning by the Sri Lankan authorities and consequently, the way in which he is likely to be treated by them. 

    Accordingly we submit that as well as having claims under the Refugee Convention, we submit that (BZAFT) has strong Complementary Protection claims.  We submit that if (BZAFT) were returned to Sri Lanka he would be subject to cruel inhumane and degrading treatment because of his mental illness and his inability to properly answer questions.”

16. The matter was encapsulated at CB89 where the submission said:

    “In summary, we submit that (BZAFT) has a strong claim for protection based on his ethnicity and imputed political opinion.  We emphasise that he is at risk of a number of bases, which must be viewed cumulatively.  He is at risk as a mentally ill, intellectually disabled Tamil who was imprisoned for four years for alleged pro‑LTTE links.  Furthermore, his return from Australia after seeking asylum and leaving Sri Lanka illegally, particularly in combination with the above, places him at further risk on return.”

17. The applicant had filed an Application in Case on 3 February 2014 seeking that his brother be appointed as a litigation guardian for him.  The Affidavit filed contemporaneously referred to his mental problems and relevantly asserted at paragraph 8:

    “I am able to understand simple instructions but have difficulty recalling all the events well and always have nightmares of the burning event.”

18. On 10 March 2014 the applicant’s counsel filed written submissions in support of an Application that the applicant be assessed as to his mental capacity.  I note that this Application was dismissed by me on

    
    

    14 March 2014.

19. On 30 April 2014 I ordered the appointment of BZAFS as litigation guardian be made.  This of course was the appointment of the applicant’s brother, not counsel as had previously been sought.

20. The Tribunal’s decision shows a keen awareness of the mental problems that the applicant faced.  At paragraph 107 (CB28) the Tribunal said:

    “The Tribunal notes that submissions have been made to the Tribunal concerning the applicant’s mental health, his brain injury and a possible intellectual disability.  In this regard, the Tribunal notes that s.425 imposes an obligation on the Tribunal to provide an application with a “real and meaningful” opportunity to appear before the Tribunal to give evidence and present arguments.  Compliance with s.425 is a precondition to the valid exercise by the Tribunal of its jurisdiction (MIMA v SCAR (2003) 128 FCR 553).  The standard of fitness required before a person can participate in a hearing is not defined by the legislation.  The Tribunal notes the following observations of Branson J in NAMJ v MIMIA [2003] FCA 983 (Branson J, 22 September 2003) at [58]:

    I do not consider it wise to attempt to formulate an exhaustive test of ‘fitness’ to take part in a Tribunal hearing.  It seems likely that no single standard of fitness will be appropriate for all cases.  Fitness in the relevant sense will, in my view, require to be assessed having regard to the particular circumstances of each case including the intended purpose of the hearing before the Tribunal and the support and assistance available to the applicant.”

21. The Tribunal noted at paragraphs 108-110 (CB28-29) authority for the proposition that it was not incumbent upon the Tribunal to press the respondent to provide further evidence of his psychological problems, nor to adjourn the proceeding to enable him to provide such evidence.  The Tribunal noted in some detail and was clearly aware of the applicant’s medical condition and the fact that the Tribunal had had regard to the Tribunal’s Guidance on Vulnerable Persons and in particular persons with psychological and psychiatric conditions.  The Tribunal went on to say at paragraphs 111-113 (CB30):

    “111.     … The Tribunal was careful to ensure that appropriate arrangements were in place for the hearing.  These included the presence of a support person and acceding to the applicant’s request to have his brother present while he gave evidence.

    112.    The applicant did in fact attend the hearing.  He was accompanied by a support person from the Red Cross and gave his evidence with his brother present at all times.  Having observed the applicant at the hearing, the Tribunal is satisfied that he was in fact able to give an account of his claimed experiences and to present arguments.  He replied to questions asked by the Tribunal in a manner that was responsive to the questions and reflected an understanding of what had been asked.  He was similarly responsive in relation to issues raised with him by the Tribunal.  Subsequent submissions to the Tribunal noted that the applicant had “presented well on the day”.  The Tribunal is satisfied that he demonstrated an ability to understand and respond to questions.  As noted above, there is no “exhaustive” test of fitness to take part in a Tribunal hearing.  However, in all the circumstances, the Tribunal is satisfied that the applicant was given a real and meaningful opportunity to appear before the Tribunal to give evidence and present arguments.  The Tribunal has sought to facilitate this by adopting an approach to the hearing consistent with his own Guidance on Vulnerable Persons.  In considering these issues, the Tribunal has paid very careful regard to all of the information in the large volume of material submitted on the applicant’s behalf.

    113.    Even in circumstances where a person may be fit to participate in a hearing, it remains relevant for the Tribunal to consider the effect that any psychological or other condition may have when assessing the evidence and making findings concerning credibility.  The Tribunal notes, for instance, the impairments that may be associated with psychological and psychiatric conditions and with brain injury, as set out in the Tribunal’s Guidance on Vulnerable Persons.  It has had regard to the material that has been submitted on the applicant’s behalf in relation to the symptoms of schizophrenia, including delusions.  In assessing the applicant’s own evidence, the Tribunal has had careful regard to all of the information about his condition, including his mental illness and head injury.”

1. Counsel for the applicant’s outline of argument filed on 13 May 2014 asserts at paragraph 5:

   “… The Tribunal was in judicial error and breach of fair procedure in insisting that the Applicant was for the interview and that it was not necessary for the Applicant to be assessed if he was fit for the interview.  … This is in spite of the fact admitted by Tribunal that the Department decision maker himself had accepted that the Applicant’s mental condition had accepted the quality of his submissions and that he had not attempted to be evasive or deceptive.”

2. The written submission asserts (paragraph 15):

   “15.  The Tribunal failed to take into consideration that the Applicant, having been released after a long period of Human Rights abuse of torture and sexual abuse in prison and abusive period resulting in a trauma that has not been treated or counselled, would certainly have difficulties in being able to recall events accurately and this should not be a major factor in making the decision.  It is also known that the Applicant had and was being treated for schizophrenia. 

   16.  The Applicant when examined by the psychiatrist on 1 July 2012 … where it is shown that he has a history of observed the Applicant “as actively hallucinating and at times distress”.  … The Mental state examination MSE1 … under Appearance– facial expression of anguish, under mood and effect, the Applicant was con client unable to respond because of brain injury with brother stating that he was depressed.  There is also an attempt to suicide in that the brother had said that he jumped off the boat and had to be pulled back in by him and others.

   17.  The Tribunal has had access to the full medical history of the Applicant and could have arrived at the conclusion that he was unfit to attend the interview, but chose to do so because the Representative did not object to the interview.  This is clearly a jurisdictional error and a procedural error.”

3. The written submissions of the first respondent point to the Tribunal’s reasons and findings very much in the terms that I myself set them out above.  In my view, the matters asserted in those written submissions are indeed correct.

4. Although the applicant’s oral arguments (in fact in writing - exhibit 1) at the hearing assert at paragraph 5 “it is clear from the interview that he did not have the capacity”, there has been no application at any stage to put transcript before the Court to support any assertions that the Tribunal’s findings about its interaction with the applicant are inaccurate.

5. In my view the Tribunal’s assessment of the applicant’s capacity to properly participate in the hearing was reached in a fashion that was entirely procedurally fair.  The Tribunal considered the application for a medical assessment and in reliance on established authority exercised a discretion plainly open to it not to order medical examination.  The Tribunal received very extensive medical histories about the applicant which it should be noted the Tribunal accepted.  The Tribunal made every reasonable accommodation of the applicant’s desires in relation to the way the hearing was conducted.  The suggestion that the Tribunal fell into jurisdictional error in the way in which it dealt with this aspect of the matter is plainly misconceived.

Ground 2 - The Tribunal erred in law in not taking relevant evidence into consideration in making the decision.

1. I do not set out the particulars to this ground as they have already been set out in the matter of BZAFS.  They are identical with it.  No different argument has been advanced at any stage by the applicant as to the way in which this ground operates on BZAFT differently to how it operated in respect of BZAFS.  It should be noted that in assessing inconsistencies that were advanced by the applicant the Tribunal kept his mental health keenly in mind and found at paragraph 117 (CB31):

   “… Nevertheless, having regard to his history of mental illness and the documentation regarding his period in detention, the Tribunal accepts that he the applicant’s mental illness may have affected the applicant’s evidence to the Department as has been submitted.  It considers that it is appropriate to adopt a cautious approach to this evidence.  In all the circumstances, it does not consider that reliance can be placed on the applicant’s evidence to the Department to sustain a finding that the claimed detention did not occur.”

2. In the ultimate, in my view, as the first respondent’s written submissions point out (paragraph 32) the Tribunal reached the conclusion it ultimately arrived at as a result of the evidence given largely by BZAFS and for the same reasons.  I already dealt with the submissions advanced by BZAFS in his judgment and I refer to and repeat them here.  It is not necessary to set them out seriatim.  This ground fails.

Ground 3 - The Tribunal did not take adequate consideration in the application of the complementary protection provision in the Migration Act.  The Tribunal was unreasonable or illogical in making the adverse conclusion.

1. It should be noted that the Tribunal clearly did consider country information and the membership of a particular social group in determining the issues raised under Ground 2.

2. I accept as the first respondent submits (paragraph 46 written submissions) that the applicant’s claims about complementary protection were based on the same material facts as his claims to face persecution.  I accept that the Tribunal carefully considered the matters he raised, including the difficulties asserted to arise as a result of his mental ill-health in the event that he would be returned to Sri Lanka.

3. The Tribunal set out a detailed series of considerations about the complementary protection provision at paragraphs 171-182 (CB50-53).  In my view, without setting them out in full, they reflect a conscientious consideration of the matters the applicant raised and a set of conclusions that paid entirely appropriate regard to the applicant’s mental illness, his head injury and the information relating to his intellectual disability (see paragraph 176, CB51).  I accept the submission of the first respondent at paragraph 49 that “The Tribunal applied the right test, and made reasonable findings on the evidence before it”.  This ground must fail.

Ground 4 - The Tribunal erred in law in failing to apply Sections 354, 421(1)(b) and (2)(b), s.422(3) of the Migration Act in a way that is just and fair according to substantial justice and the merits of the case.

1. This ground appears to be a straightforward merits review (to the extent that it is comprehensible).  That is not a permissible exercise on an application such as this for judicial review.  It is not addressed in the applicant’s counsel’s outline of argument or in exhibit 1.  The ground must fail.

Conclusion

1. As earlier indicated the application for an extension of time in this particular case must turn on the assessment of the merits of the application as I have set them out above.  The delay in application, while not entirely satisfactorily explained, is less significant than in the case of BZAFS for the reasons given.

2. Nonetheless, and for the reasons I have set out at some length, the applicant’s chances of success in respect of the merits of his substantive application are simply not sufficiently good that it is appropriate in the interests of the administration of justice to extend time.  The application will be dismissed with costs.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Demack

Associate: 

Date:  20 May 2016