CFU17 v Minister for Immigration and Anor
[2020] FCCA 3364
•10 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CFU17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 3364 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it failed to have regard to all the evidence and an integer of one of the applicant’s claims. |
| Legislation: Migration Act 1958, ss.36, 474 |
| Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Hossain v Minister for Immigration & Border Protection (2018) 264 CLR 123 Minister for Immigration & Border Protection v MZYTS (2013) 230 FCR 431 |
| Applicant: | CFU17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1618 of 2017 |
| Judgment of: | Judge Cameron |
| Hearing date: | 16 November 2020 |
| Date of Last Submission: | 16 November 2020 |
| Delivered at: | Sydney |
| Delivered on: | 10 December 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Smorchevsky |
| Solicitors for the Applicant: | HIV/AIDS Legal Centre |
| Counsel for the First Respondent: | Mr N. Swan |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1618 of 2017
| CFU17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The applicant is a citizen of Nepal who arrived in Australia on 18 July 2014. On 4 August 2014 he lodged an application for a protection visa with what is now the Department of Home Affairs (“Department”), alleging that he feared persecution in Nepal because of his positive Human Immunodeficiency Virus (“HIV”) status and membership of the particular social groups:
a)people living with HIV/Aids in Nepal; and
b)injecting drug users in Nepal.
On 20 July 2015 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Administrative Appeals Tribunal (“Tribunal”) for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In this judicial review proceeding the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application be dismissed.
BACKGROUND FACTS
In its decision the Tribunal summarised the facts alleged in support of the applicant’s claim for protection. As summarised by the Tribunal, the applicant relevantly made the following claims:
a)he feared facing serious and/or significant harm in Nepal arising from the social stigma of being HIV-positive and his history of drug use. He also feared the lack of availability of treatment, testing and care for HIV or acquired immunodeficiency syndrome (“AIDS”)-positive people in Nepal;
b)in his protection visa application form he claimed that:
i)he experienced social harassment from his HIV-positive status;
ii)because people with HIV/AIDS are not accepted by society, he would be ostracised, deprived of basic human rights and would receive no support, even from his family; and
iii)the authorities in Nepal have no control over social attitudes and cannot protect him from “social negligence”;
c)in his statutory declaration of 3 December 2014 he further claimed that:
i)only his wife, doctor, counsellor and some close friends he had met through the HIV Group knew of his HIV status;
ii)if he was not able to earn an income it would only be “a matter of time before my whole family find out about my condition” and he feared consequent ostracism from his family and community;
iii)he feared that if his family found out he was HIV-positive, his father would cut him out of the family both financially and socially and that his brother and father might try to harm him physically or kill him;
iv)he also feared that his wife and children would face harm in connection with his HIV status and history of drug use and that the community would assume that they are also HIV positive;
v)people living with HIV/AIDS in Nepal are treated badly by their communities and treatment is difficult to get, with only limited free options being available. He feared that “without adequate access to treatment [he would] develop an AIDS defining illness leading to being hospitalised and eventually death”;
d)his statutory declaration also made the following claims regarding access to HIV treatment in Nepal:
i)he was not on any HIV treatment from 2003 until 2011 but was occasionally monitored by a doctor;
ii)in 2010 he went to an AIDS conference in Vienna where he learnt the importance of being on treatment;
iii)in 2011 an aid agency made funds available for the purchase of HIV medication;
iv)he was not put on HIV treatment when first diagnosed due to high costs, limited availability and additional travel costs and time. He could also not ask his parents for money despite them providing daily financial support. Eventually an aid agency provided him money for treatment;
v)he had to travel two hours to see a doctor for treatment but for viral load testing he had to travel six hours to Kathmandu. He did not check his viral loads;
vi)he worried that aid funding might not be available to him if he returned and that along with the other costs such as travel and clinic attendance fees, it would adversely impact his ability to access HIV treatment;
vii)he also feared breaches of confidentiality amongst medical service providers which could lead to community knowledge of his HIV status; and
viii)he noted that ignorance about HIV transmission was present amongst medical service providers such that he may be denied access to non-HIV treatment;
e)his statutory declaration also addressed the issue of relocation within Nepal. He relevantly claimed that:
i)regularly travelling back and forth from his home town to Kathmandu, where treatment was more accessible, would lead to suspicion from the community;
ii)relocating to Kathmandu was not an option because he would need to go through an agency and attend a clinic with other HIV-positive people which may lead to discovery by people in his town of his HIV condition;
iii)his work with the HIV Group might raise suspicions that he was HIV-positive which could result in his wife and him not being given employment and to his family “most likely” cutting off financial support. He claimed that his mother, father and brother provided financial assistance that had helped supplement the income of his wife and the money made from conducting programs for the HIV Group which he, his wife and children could not survive without;
iv)the severe psychological harm resulting from the stigma and discrimination against HIV/AIDS-affected people may lead him to put his life at risk by resuming injecting drug use;
f)the applicant’s registered migration agent relevantly submitted the following to the Department:
i)in late 2003 the applicant booked himself into a drug rehabilitation centre (“The Centre”) where he continued to volunteer after completing his rehabilitation;
ii)while at The Centre he was introduced to the HIV Group where he volunteered and did casual work between 2004 and 2013 and had a formal period of 12 months’ employment before he left Nepal for Australia in July 2014;
iii)knowledge of the applicant’s HIV status would lead to discrimination and ostracism for the applicant, his wife and children which could impact their ability to work and study;
iv)disruptions to treatment, including missing even one dose can have serious implications for an HIV sufferer, allowing a virus to mutate into a drug-resistant form;
v)there is no state welfare in Nepal so if the applicant’s health deteriorated he would have no one to turn to for financial support and accommodation and this would cause severe psychological harm to him;
vi)he faced a well-founded fear of persecution because of his membership of the particular social groups referred to earlier;
vii)the applicant was owed complementary protection on the basis that he would be subjected to cruel or inhuman treatment or punishment as well as severe stigma, discrimination and lack of adequate access to medical care amounting to cruel and inhuman treatment or punishment;
viii)he is likely to die in the near term of “an AIDS defining illness”;
ix)the failure to provide treatment and basic human rights amounted to persecution in that the applicant required access to appropriate medication which was difficult to access in Nepal; and
x)he would be ostracised due to the stigma against HIV/AIDS- affected people in Nepal, resulting in loss of community support which would result in serious harm and cause significant psychological harm along with the impact it would have on the applicant’s ability to find employment and support himself and his family;
g)the applicant further claimed in his departmental review that:
i)he had been discriminated against by his local community due to his health, but not seriously harmed by anyone;
ii)he was concerned that his medical condition was documented in medical records and could be leaked, leading to discrimination against him, his wife and children;
iii)he received HIV treatment in Nepal but did not travel to Kathmandu for more complex treatment as he worried that people would ask why he was travelling and find out he had HIV;
h)on 2 February 2017, he appeared before the Tribunal and added that:
i)he had been “affiliated” with HIV organisations while in Australia and worked around 5 days a week to cover his expenses and send money to his wife and children;
ii)he had lived with his parents since birth. His wife and two of his three children resided there too. He also said that he stayed at The Centre for around six months in 2003 and returned for a further nine or ten month period when he relapsed;
iii)his eldest child had lived with his sister since 2012 because of an incident where a group of students at his daughter’s school, who were HIV-positive, were expelled two weeks after enrolling, highlighting that people with HIV were treated differently. He and his wife feared their daughter might be mistreated as he had conducted HIV awareness programs in schools and someone told his wife that he might be HIV-positive so they decided to send her to live with his sister.
iv)his wife was employed looking after young children at a local child care centre every Sunday to Friday;
v)when asked by his brother whether he was taking drugs or HIV-positive, he had always denied it. He added that he did not often see or hear from his brother, who had not supported the applicant when he needed support and did not know much about his current situation;
vi)his father continued to work as a security guard and when he spoke to him on the phone he would ask what the applicant was doing and when was he returning to Nepal. He said his father thought he had been “working in an office like in Nepal”;
vii)his father did not “clearly know” that he had worked with HIV-affected people and that because his father had been in the army and was very “straight forward”, he did not like those “kinds of things”;
viii)he was living at his parents’ house through his years of intravenous drug use and his mother knew and his father “suspected” his drug use. His father would say to him that he gave birth to him and knew how to deal with him if he took the wrong path and threatened him in this way;
ix)once, before he was married he was under the influence of drugs at home, his father had hit him. This was the only time his father ever physically harmed him despite being threatened with harm many times. In relation to the rumours in his community linking his prior drug use to possible HIV infection, his father threatened to harm him if the rumours were true. He said that his father has not harmed him since he married in 2004 as he “can’t in front of my wife”;
x)he told his sister he was HIV-positive before he went to the AIDS conference in Vienna in 2010 and she cried a lot. He asked his sister for money to help him access viral load testing in Kathmandu which she provided;
xi)his wife knew he was HIV-positive before marrying him and was supportive, but told him not to tell people about it; and
xii)he only heard through his wife and children of the rumours about him being HIV-positive because of his drug use and said that he had not been harmed in any other way in Nepal because of his actual or assumed prior drug addiction or his actual or assumed HIV status.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal accepted that the applicant:
i)had been HIV-positive since around 2003;
ii)had previously used drugs including heroin by injection;
iii)had received assistance from The Centre in Nepal where he eventually worked;
iv)was working with the HIV Group until coming to Australia;
v)in 2004 in Nepal married a woman who was aware of his HIV status and had three children and all four continued to reside in Nepal and were not HIV-positive;
vi)had been receiving antiretroviral therapy (“ART”) in Nepal from 2011 until he came to Australia where he had continued receiving ART and other treatment; and
vii)lived with his family before and after his drug rehabilitation and that his evidence “gave the impression of a close and supportive family”;
b)with regard to the applicant’s family and the support they had given, the Tribunal found that:
i)it did not accept that the applicant’s father did not “clearly know” of the nature of the applicant’s work for the HIV Group in Nepal as he had conducted public awareness campaigns for the HIV Group which is a locally based and known HIV advocacy service where the family have lived for decades;
ii)the applicant’s parents and family more generally were aware of his former drug use and his HIV-positive status since around 2003 or 2004 and had continued to support him;
iii)it did not accept that the local community was unaware of his former drug addiction or HIV status, nor did it accept that the conduct of his family members supported the applicant’s claim that any member of his family would ostracise, stop supporting, disown, harm or kill him because of his prior drug use or HIV status;
iv)it did not consider the applicant’s evidence about his relationship with his brother to be consistent and it did not reveal his brother to have given any indication of an intention to harm the applicant despite the Tribunal finding that the brother was aware of the applicant’s HIV status and prior drug use;
v)the applicant’s wife had maintained stable employment despite community rumours and speculation linking the applicants’ prior drug use to an HIV infection; and
vi)the applicant had not provided persuasive evidence that if his illness progressed to a point where he was unable to source employment, support himself, contribute daily income or look after himself, he would not be supported by his family in terms of his general capacity to subsist. Rather he would continue to be supported by his parents, siblings and wife;
c)the Tribunal was therefore not satisfied that the applicant’s family would contribute in any way to a real chance of him facing serious or significant harm if he were to return to Nepal;
d)with regard to the claim of social stigma and ostracism, the Tribunal found that:
i)the applicant’s evidence did not support his claims that he had experienced social harassment in Nepal, nor his claims of future harm or rejection by society in Nepal should his HIV status become known;
ii)whilst it accepted that stigma and misunderstanding around HIV/Aids persists in Nepal, the applicant and his family have not experienced and will not in the foreseeable future experience stigma and ostracism to a degree which rises to the level of serious or significant harm;
iii)despite rumours that the applicant was HIV-positive because of his prior drug use, he managed to maintain employment at the HIV Group as well as running community dances and sporting events. His wife also managed to secure and maintain employment as the carer of young children at a local school for a number of years. The Tribunal found that this did not suggest the applicant, his business or his family had been ostracised either financially or socially by their community in Nepal; and
e)the Tribunal was therefore not satisfied that, even as [if?] the applicant’s health declines, his wife or children would face a real chance of social stigma, ostracism or mistreatment which would give rise to harm, including psychological harm to the applicant, amounting to serious or significant harm or give rise to a real chance that the applicant would resume his drug use in Nepal;
f)with regard to the applicant’s access to medication, treatment and testing, the Tribunal found that:
i)the applicant’s evidence regarding his access to viral load testing was unreliable. The Tribunal noted that country information indicated that viral load testing was available close to the applicant’s home, as well as Kathmandu to which the applicant in the Tribunal interview said he went to as it was more anonymous. This was despite his earlier evidence that he did not go to Kathmandu for testing as he feared that questions would lead to his HIV status becoming more generally known;
ii)whilst it accepted that some level of stigma, ignorance and misinformation contribute to ongoing situations, the Tribunal did not consider examples such as wearing multiple layers of gloves to evidence or give rise to a real chance of serious or significant harm. Further, the Tribunal found that the applicant’s evidence did not suggest that he was ever denied appropriate medical treatment or testing in Nepal;
iii)it did not accept that the applicant did not access HIV testing or treatment in Nepal and found the applicant’s claim that he worked at the HIV Group providing public awareness to be inconsistent with his claimed reluctance to be seen in an HIV specific clinic;
iv)it did not consider the applicant’s concerns regarding privacy and confidentiality to give rise to a real chance of serious or significant harm in Nepal. While it accepted that breaches of confidentiality are possible in Nepal, it did not agree that it happens regularly, noting that based on the applicant’s evidence his confidentiality had never been breached in respect of his health status, despite him having medical records in Kathmandu and in clinics closer to his home that recorded him as HIV-positive; and
v)the applicant’s claim that that he might not be able to access charitable assistance in Nepal to move up the queues for treatment was “highly speculative” and he had not provided evidence that he would not be able to access necessary HIV testing, treatment or care in Nepal if he did not have access to the financial assistance of a charity;
g)the Tribunal was not satisfied that the applicant’s employment prospects would be adversely impacted because of a downturn in global HIV funding. The Tribunal found his evidence regarding how he spent time in Australia demonstrated him to be resourceful. It also considered his diverse work history, including running a successful side-business organising events, working as a cleaner in Australia and a social worker in Nepal as well as having an interest in further study including learning English, made the applicant an attractive potential employee in multiple industries in Nepal;
h)the Tribunal was not satisfied that the applicant faced a real chance of being “deprived of basic human rights” or of being rejected by his family and society as a person who is HIV-positive because of his former drug use. The Tribunal did not accept that the applicant faced a real chance of not being able to access “sound and reliable” HIV/AIDS testing or treatment; and
i)the Tribunal did not accept that the applicant faced a real chance of mistreatment linked to stigma or otherwise in connection with his HIV status linked to his known prior drug use. The Tribunal was also not satisfied that the applicant would be denied access to effective, appropriate medical treatment, or would not access that treatment out that fear of his HIV status would be disclosed.
THE PROCEEDING IN THIS COURT
In his amended application the applicant alleged:
1.The Second Respondent miscarried the statutory task of conducting a review in accordance with section 414 of the Migration Act 1958 (Act) by failing to consider the relevant country information squarely before the decision maker.
2.Further or in the alternate, the Second Respondent failed to perform the statutory task prescribed by section 430 of the Act in failing to refer to the evidence or any other material on which the findings of fact were based.
3.The Second Respondent failed to consider an integer of the applicant’s claim and thereby constructively failed to exercise the review jurisdiction conferred on it by the Act
Particulars
a.The applicant claimed that he had only disclosed his HIV status to a limited group of persons due to fear of repercussions to him, his wife and his children if his HIV status was more widely known.
b.In not accepting “that the applicant’s parents or siblings or local community did not know of his former drug addiction and/or his current HIV status” (emphasis added), the Second Respondent left open the possibility that persons may have known of his drug addiction but not his HIV status.
c.The Second Respondent was obliged in those circumstances to consider the applicant’s claim that he had not disclosed his illness, and went to some lengths to keep it hidden, due to the fear of the repercussions for himself, his wife and his children that he articulated.
Ground 1
The applicant submitted that the Tribunal failed to consider country information regarding persecution faced by persons living with HIV in Nepal, a matter that, it was submitted, could be discerned from the Tribunal’s failure to refer to, or to manifest the necessary evaluative assessment of, information of that sort cited in his written submissions. He argued that the Tribunal's reasons focussed on his individual circumstances, instead on the circumstances in Nepal more generally and to which he would be exposed if he were to return.
The fact that the Tribunal may not have referred to particular information cited by the applicant in his written submissions does not mean that the Tribunal was not aware of the issue to which those submissions were relevantly directed, namely the situation in Nepal generally. Its awareness of the issue is demonstrated by the contents of annexure 2 to its decision record which is a summary of country information concerning Nepal which the Tribunal considered valuable, referring to it in para.54 of its reasons as “recent country information”.
Acknowledging the Tribunal’s awareness of the situation in Nepal generally, the next relevant matter is its awareness of the evidence on that subject. There is no reason to doubt the truthfulness of the Tribunal’s statements in para.8 of its decision record that its assessment was:
… informed by a range of material including: the Department’s file relating to the applicant which includes a copy of his Protection visa application form and documents provided in support of that application such as the applicant's Statutory Declaration sworn on 3 December 2014 (2014 Declaration) and an audio recording of his Department interview held on 18 March 2015 which the Tribunal has listened to. The Tribunal's assessment is also informed by material submitted in support of the review application including its detailed exploration of the claims made when the applicant appeared before it on 2 February 2017. … Written submissions from the applicant’s RMA as well as other supporting documents and country information were also provided to the Department and Tribunal. Additional time was requested to provide additional submissions and information to the Tribunal, including further medical information. Additional time was allowed and additional information was provided to the Tribunal most recently on 28 February 2017. The Tribunal has had regard to the above as well as other material available to it from a range of sources, referred to, where relevant, in its considerations below.
The fact that the Tribunal had regard to the applicant’s submissions of 17 March 2015, 30 January 2017 and 8 February 2017 is borne out by its reference to them in, respectively, the following paragraphs of its reasons:
a)16, 22, 23, 53;
b)27; and
c)28.
I am not persuaded that the Tribunal did not have regard to the country information cited in the applicant’s submissions. Rather, I conclude that it did have regard to it. Nevertheless, as the Tribunal implied, it chose to rely on information that was current. Its decision to refer to the WHO Country Cooperation Strategy Nepal, 2013-2017 rather than the WHO Country Cooperation Strategy 2006-2011 cited by the applicant is understandable on that basis. The same may be said for the Tribunal’s preference for the Country Progress Report Nepal dated 15 June 2015 over the Country Progress Report Nepal 2010 cited in the applicant’s written submissions. As the Tribunal was not required to refer to every piece of information before it and was entitled to make its own choice as to the information it would rely on, in all the circumstances and having regard to the Tribunal’s decision as a whole I am not persuaded that its failure to make express reference in its reasons to the information cited by the applicant manifested a failure to give that material the level of consideration the law required.
But in any event, it was not demonstrated that any failure of that sort affected the exercise of power: Hossain v Minister for Immigration & Border Protection (2018) 264 CLR 123 at 134-135 [29]-[30]; Minister for Immigration & Border Protection v MZYTS (2013) 230 FCR 431 at 451 [68]. In that connexion I note and accept the Minister’s submission that the information in question was not central to the Tribunal’s review, which was concerned with the applicant’s individual circumstances. Although the general social environment in Nepal had some contextual relevance to that inquiry, the fact is that the Tribunal found that the applicant’s health status was no secret to his family, and was at least rumoured in his local community, and yet he had suffered no family rejection or societal discrimination, let alone persecution. It was not unreasonable or illogical of the Tribunal, particularly in light of the country information it chose to rely on, to conclude that the same situation would obtain if the applicant were to return to his home in Nepal. It has not been shown that any failure to consider the information in question might have affected that conclusion. That being so, no jurisdictional error has been demonstrated in connexion with the first ground of the amended application.
Ground 2
The applicant accepted that, even were the allegation advanced in the second ground of the amended application to be made out, jurisdictional error would not have been demonstrated.
Ground 3
The burden of the third ground of the amended application was that the applicant had concealed his condition from all but his intimates and the Tribunal failed to consider what would happen to him if information about his HIV status became more widely known.
However, as the summary of the Tribunal’s finding set out earlier in these reasons makes sufficiently clear, the Tribunal did not accept that version of the facts. It was satisfied that the applicant’s family did know of his health status and that the local community speculated that he might well be HIV-positive because of his historical intravenous drug abuse.
Read fairly, what the Tribunal was saying was that his family knew of his HIV status and the local community’s suspicions were such that actual knowledge would not have led to a difference in treatment of the applicant that would have been relevant to his application for a protection visa. As it said:
The Tribunal considers his evidence overall to suggest that he continues to be supported and integrated on a family and community level in Nepal despite it being generally known or suspected that he suffers HIV in connection with his prior drug use. The Tribunal is not satisfied on the evidence before it that, even as the applicant’s health declines, he or his wife or children face a real chance of social stigma, ostracism or mistreatment which will give rise to harm, including psychological harm to the applicant, amounting to serious or significant harm as contemplated by the relevant law, in Nepal, …
CONCLUSION
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 10 December 2020
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