CFX15 v Minister for Immigration
[2018] FCCA 3147
•16 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CFX15 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3147 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – citizens of Vietnam – applicants paternal aunt and nephew – failure to particularise grounds of review – whether applicants received a fair hearing – whether all of the applicants’ evidence taken into account – whether ill-health affected first applicant’s ability to participate effectively in the Administrative Appeals Tribunal hearing – whether the law correctly applied – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), Part 7, Div.4, ss.45M, 422B, 425 |
| Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 Minister for Immigration & Citizenship v SZRKT& Anor [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 672; (2013) 136 ALD 41 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 |
| First Applicant: | CFX15 |
| Second Applicant | CFY15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 493 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 29 July 2016 |
| Date of Last Submission: | 29 July 2016 |
| Delivered at: | Perth |
| Delivered on: | 16 November 2018 |
REPRESENTATION
| For the First Applicant: | In person |
| For the Second Applicant: | In person |
| Counsel for the First Respondent: | Mr A Gerrard |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 493 of 2015
| CFX15 |
First Applicant
CFY15
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants have filed an application seeking judicial review (“Judicial Review Application”) under the Migration Act1958 (Cth) (“Migration Act”) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) to not grant the applicants temporary protection (Class XD) visas (“TP Visas”). The Tribunal Decision appears at Court Book (“CB”) 562-587.
Background prior to the Judicial Review Application
The background prior to the Judicial Review Application is as follows:
a)both applicants are citizens of Vietnam who arrived in Australia as unlawful maritime arrivals on 19 May 2013: CB 169 and 187. The first applicant is the paternal aunt of the second applicant and claims to have raised the second applicant (who at the time of hearing was 19 years old) as though he was her own child since his parents were killed in a motor vehicle accident when he was 5 years old: CB 6, 7 and 23;
b)on 16 June 2014 the applicants lodged an application for protection (Class XA) visas: CB 45-84 and 159. By operation of s.45M of the Migration Act and reg.2.08F of the Migration Regulations 1994 (Cth) (“Migration Regulations”) the application is taken to be an application for TP Visas;
c)on 13 May 2015 the Delegate refused to grant the applicants TP Visas: CB 155;
d)on 20 May 2015 the applicants lodged an application with the Tribunal for review of the Delegate’s Decision: CB 199;
e)on 1 July 2015 the applicants’ migration agent representative sent an email to the Tribunal attaching submissions in support of the applicants’ claim for a TP Visa: CB 242-254. The applicants’ migration agent representative requested that “… [the first applicant’s] fragile physical and emotional state be taken into account at hearing”: CB 243;
f)the Tribunal hearing commenced on 3 July 2015 and the applicants were assisted by their migration agent representative and an interpreter: CB 259-261 and 563 at [4]-[5]. Part way through the hearing on 3 July 2015, the applicants’ migration agent representative requested additional time for the first applicant to provide evidence of counselling given to her. The Tribunal agreed to adjourn the hearing for one month as the first applicant appeared to be unwell and highly emotional: CB 567 at [39];
g)the Tribunal reconvened the hearing on 3 August 2015 when the applicants were again assisted by their migration agent representative and an interpreter: CB 551 and 563; and
h)on 2 October 2015 the Tribunal affirmed the Delegate’s Decision: CB 562 and 577 at [89].
Tribunal Decision
The Tribunal Decision is, on its face, a comprehensive one, setting out:
a)the protection claims of the applicants: CB 563-565 at [6]-[20];
b)the key findings and reasons, in summary, of the Delegate’s Decision: CB 564-565 at [21];
c)the details of a “detailed written submission”: CB 565 at [24] prepared by the applicants’ migration agent for the purposes of the application for review before the Tribunal, and in which:
i)details of the first applicant’s medical condition and treatment were referred to; and
ii)the basis for the first applicant fearing that she would suffer significant harm if returned to Vietnam were set out: CB 565-566 at [24];
d)details of the first applicant’s surgery, and subsequent treatment, for breast cancer were received by the Tribunal, including the first applicant’s “detailed clinical records” (which appear at CB 269-550): CB 566 at [25];
e)in considerable detail, the evidence given by the applicants at hearing, and in relation to the first applicant as to both her claims in relation to significant harm if returned to Vietnam and her breast cancer treatment, and the nature of any treatment that she might receive for her breast cancer if she was returned to Vietnam: CB 566-569 at [26]-[52];
f)the hearing process, including the fact that the Tribunal received a request from the first applicant’s representative to provide evidence of counselling given to the first applicant, as a consequence of which, in circumstances where the first applicant “appeared to be unwell and highly emotional”, the Tribunal agreed to adjourn the hearing for one month: CB 567 at [39];
g)the details of the resumed hearing on 3 August 2015 in which the first applicant gave evidence of her chemotherapy treatment, oral medication and recent blood test results, as well as a discussion with the Tribunal where the Tribunal put to the first applicant certain information concerning subsidised health treatment in Vietnam: CB 568 at [40]-[41];
h)relevant country information, which it set out in detail in Attachment A to the Tribunal Decision: CB 569 at [53] and CB 578-582, with the independent country information including not insignificant detail concerning the Vietnamese health system and the availability of medical treatment in Vietnam: CB 578-579 at [90]-[93], those details being principally drawn from a 2012 World Health Organisation Health Service Delivery Profile for Vietnam; and
i)set out the relevant law, which is not in dispute and is unexceptional: CB 569 at [54] and Attachment B to the Tribunal Decision at CB 583-585.
In the Tribunal Decision the Tribunal then considered the applicants’ claims and evidence, and:
a)made adverse credibility findings against the first applicant, finding that she had been “somewhat unreliable” in her evidence and that in parts her evidence was “intentionally vague and even evasive”: CB 571 at [63];
b)accepted that a particular person was the first applicant's fish wholesaler, that the first applicant owed the fish wholesaler money which she had failed to repay and that when she failed to repay the money the fish wholesaler assaulted the first applicant and destroyed her fish stall. The Tribunal considered, however, that the size of the debt was overstated by the first applicant, and was not satisfied that the fish wholesaler would target the first applicant for serious harm now or in the future: CB 571 at [65];
c)expressed some doubts about whether people who owe money to loan sharks or people who are in debt might amount to a particular social group, but gave the first applicant the benefit of the doubt and found that she was of the particular social group of persons who are in debt or who owe money. The Tribunal did not accept that the fish wholesaler’s interest in the first applicant was as a result of her membership of a particular social group, but rather because she owes him money. The Tribunal did not accept that the fish wholesaler intends to seriously harm the first applicant if she returns to Vietnam or that the first applicant would be denied police protection if she complained that the fish wholesaler was threatening to seriously harm her: CB 571-573 at [66]-[68];
d)found, based on country information, that the first applicant does not face a real chance of serious harm if she returns to Vietnam for reasons of having claimed asylum in Australia, because the country information suggests that some returnees may be briefly detained and interviewed, but long-term detention and arrest is only for those suspected of organising people smuggling. The Tribunal noted that it is an offence to flee abroad or defect to stay overseas with a view to opposing the Vietnamese government, but there was no evidence to suggest that the first applicant has any political profile or that she has been involved in antigovernment activity: CB 573 at [69];
e)accepted that the first applicant may face a fine of between AUD$120 and $600 upon return to Vietnam for departing Vietnam unlawfully. The Tribunal found that this fine would be imposed under a law of general application and the fine is not in a range that would amount to serious harm. The Tribunal was not satisfied that the first applicant did not have the money to pay the fine: CB 573-574 at [70]-[71];
f)was not satisfied that the first applicant's return to Vietnam as a returnee from the West is exceptional or uncommon such that it would give rise to a real chance of serious harm from anyone in Vietnam: CB 574 at [72];
g)accepted that some of the first applicant's personal information would have been released as part of a data breach when the first applicant was in detention on 31 January 2014. The Tribunal further found, however, that there was no evidence to suggest that details of the first applicant’s TP Visa claims were released, and the Tribunal was not satisfied that there was a real chance that the first applicant would face serious harm because of the data breach if she returns to Vietnam in the foreseeable future: CB 574-575 at [74]-[76];
h)noted that the first applicant had been diagnosed with breast cancer and was receiving treatment, and considered and rejected the first applicant's claims that she would not receive adequate medical treatment in Vietnam and that she would not be able to afford medical treatment in Vietnam: CB 575 at [77];
i)considered whether the first applicant's claims that she sought assistance from the police in her dispute with the fish wholesaler and the police told her that she could not run the stall well and had to stop selling fish, could amount to a claim of harm from the State. The Tribunal did not accept, on the basis of country information indicating that the police in Vietnam effectively maintain public order, that protection from serious harm would be withheld from the first applicant for a Convention based, or any other, reason, and therefore found that there was not a real chance that the applicants would face serious harm for reasons of being denied State protection in Vietnam: CB 575 at [78];
j)considered the second applicant's claims separately, and concluded that neither of the applicants face a real chance of serious harm amounting to persecution for a Convention based reason if they were to return to Vietnam in the foreseeable future: CB 576 at [81]-[82]; and
k)also considered the complementary protection provisions and found that they were not met, rejecting a claim that there is a real risk that the applicants will be subjected to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment at the hands of the fish wholesaler, the Vietnamese authorities or any other person: CB 577 at [86]-[87].
Judicial Review Application
Transcribed verbatim, the grounds of the Judicial Review Application are as follows:
1.I do not believe the decision maker gave me a fair hearing.
2.I believe the decision make failed to take into account all of my evidence and the fact that my ill health effected my ability to participate effectively in the hearing.
3.I believe the decision maker has not correctly applied the law in my case.
The first applicant filed, electronically, an affidavit simultaneously with the Judicial Review Application, but the affidavit did no more than attach a copy of the Tribunal Decision.
On 25 November 2015 a Registrar of the Court made orders (“Registrar’s Orders”) for the applicants to file and serve any amended Judicial Review Application giving particulars of the grounds of application, any further affidavits and an outline of submissions. No further materials were filed by the applicants pursuant to the Registrar’s Orders, or otherwise.
At the hearing of the Judicial Review Application:
a)the applicants made no submissions of any substance with respect to the grounds of the Judicial Review Application, and did not make any submissions or provide any further particulars of any alleged jurisdictional error arising from the grounds of the Judicial Review Application; and
b)the Minister relied upon written submissions filed pursuant to the Registrar’s Order, and provided a brief oral summary of those submissions.
Consideration
The requirement for jurisdictional error
The Tribunal Decision is liable to be set aside upon review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Further, an error by the Tribunal may constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
Jurisdictional error may also arise:
a)by reason of the Tribunal denying procedural fairness to which an applicant is entitled under the Migration Act: Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”) at [18] per French CJ and at [48] per Hayne, Kiefel and Bell JJ; Migration Act, ss.420 and 422B; and
b)if the Tribunal Decision is affected by legal unreasonableness: Li; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50, and see the summary in Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 at [41] per Wigney J.
It is for the applicants to make out their case and establish jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284 at [15] per Jagot J.
The Court does not have the jurisdiction to review the merits of the Tribunal Decision, or determine the applicants’ claim for the TP Visas: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Failure to particularise
The grounds of the Judicial Review Application are not particularised in any way, and no particulars were provided at the hearing of the Judicial Review Application. It is now well accepted by both this Court and the Federal Court that a failure to particularise grounds of review in an application for judicial review can result in the dismissal of a ground or grounds, and if the want of particularisation affects all grounds, the application for judicial review may fail completely: AYE16 v Minister for Immigration & Border Protection [2018] FCA 108 at [25] per Barker J; BYM16 v Minister for Immigration & Border Protection [2018] FCA 326 at [12]-[13] per Bromwich J, applying WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J. In this case, there are no particulars at all provided for the Judicial Review Application, and on that basis alone the Judicial Review Application can be dismissed.
The Court must nevertheless remain astute to any possible jurisdictional error in the Tribunal Decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J, and it has therefore considered each of the applicants’ grounds of review below.
Ground 1
Ground 1 asserts that the Tribunal did not give the applicants a fair hearing.
The Tribunal hearing was held over two separate days, between which there was a one month adjournment granted to the applicants. The adjournment:
a)enabled the first applicant to seek and provide additional evidence to the Tribunal; and
b)was granted because the first applicant was unwell and emotional on the first day of hearing.
The applicants were also given short adjournments within the hearings on 3 July 2015 and 3 August 2015, the first of which was because the first applicant “was not feeling well”: CB 567-569 at [35] and [45]. At the hearings, the applicants were assisted by a registered migration agent and an interpreter. There is nothing on the face of the Tribunal Decision which indicates any unfairness in the hearing process vis-a-vis the applicants. Further, the applicants have filed no evidence, provided no particulars, and made no submissions, pointing to or suggesting any unfairness in the hearing process before the Tribunal.
Section s.422B of the Migration Act provides that Division 4 of Part 7 of the Migration Act is an exhaustive statement of the natural justice hearing rule in relation to the matters that it deals with. The Tribunal Decision demonstrates that the Tribunal has complied with the provisions of Division 4 of Part 7 of the Migration Act, and there is nothing before the Court to suggest that the applicants were denied a fair hearing.
Ground 2
Ground two contains two contentions:
a)firstly, that the Tribunal did not take into account all of the first applicant’s evidence; and
b)secondly, that the Tribunal failed to take into account the first applicant’s medical condition and the first applicant’s ability to participate effectively in the Tribunal hearing.
The first applicant contends that the Tribunal did not take into account all her evidence, but has failed to identify which evidence the Tribunal failed to take into account. Simply failing to refer to particular evidence does not of itself mean that the Tribunal has failed to consider the evidence: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [46] per French, Sackville and Hely JJ; DQQ17 v Minister for Immigration & Anor [2017] FCCA 3207 at [30(b)] per Judge Lucev, citing Li Shi Ping v Minister for Immigration, Local Government & Ethnic Affairs (1994) 35 ALD 225 at 236-237 per Carr J (with whom Sheppard and Gummow JJ agreed). Further, the authorities establish that not every failure to consider relevant evidence will amount to a jurisdictional error: Minister for Immigration & Citizenship v SZRKT& Anor [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 672; (2013 136 ALD 41 (“SZRKT”); Minister for Immigration & Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67. Rather, it becomes necessary to consider “the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error”: SZRKT at [111] per Robertson J, approved in Minister for Immigration & Border Protection v MZYTS& Anor [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547 at [70] per Kenny, Griffiths and Mortimer JJ.
The Tribunal Decision is comprehensive: it sets out the various claims made by the applicants, sets out what the applicants had to say in respect of those claims, and draws conclusions with respect to each of the claims. It is not evident on the face of the Tribunal Decision that the Tribunal has in its comprehensive and thorough treatment of the materials failed to consider any relevant evidence. The Court is unable to discern that it has done so, and the failure of the applicants to particularise what evidence it might be that the Tribunal has failed to consider means the matter can be taken no further. In any event, as the authorities cited at [20] above indicate, not every failure to consider evidence will amount to a jurisdictional error, and it is not apparent to the Court that any evidence of any importance to the exercise of the Tribunal’s jurisdiction has not been considered by the Tribunal. For these reasons, the first applicant’s contention that the Tribunal did not take into account all of her evidence must fail.
The first applicant also contends that the Tribunal failed to take into account that her medical condition affected her ability to participate effectively in the Tribunal hearing.
In Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553; (2003) 198 ALR 293; (2003) 75 ALD 151 (“SCAR”) the Full Court of the Federal Court found that the Refugee Review Tribunal (“RRT”) had committed jurisdictional error in failing to give the visa applicant a fair hearing in circumstances where, unbeknown to the RRT, the visa applicant had become severely distressed after hearing of his father's death a few days before the RRT hearing, had sought medical treatment in the days between hearing of his father’s death and attending the RRT hearing and was, in the view of his treating psychologist at the time, in no condition to handle the RRT hearing, because he was totally unable to think clearly, and was quite unprepared as he did not even know what day it was and he had no support during the RRT hearing: SCAR at [12]-[13] per Gray, Cooper and Selway JJ. The Full Court of the Federal Court went on to observe in SCAR at [14] per Gray, Cooper and Selway JJ as follows:
14 The evidence put before the primary judge suggested that a possible explanation of why the respondent’s evidence to the Tribunal had been ‘vague’ and ‘confused’ was because of his distress at the news of his father’s death and because of the medical treatment, including drugs, that he had received in respect of that distress. Clearly if the Tribunal had been aware of the respondent’s distress it may have proceeded differently. At the very least it may not have made the credibility findings it did make in light of the alternative explanation for the inadequacy of that evidence.
The Full Court of the Federal Court in SCAR went on to observe that the facts relevant to the issue of whether or not there was a jurisdictional error by the RRT had been determined by the primary judge and were as follows:
a)the visa applicant was not in a fit state to represent himself before the RRT;
b)the RRT did not know that the visa applicant was not in a fit state to represent himself; and
c)there was nothing before it that should have alerted the RRT to the visa applicant’s condition: SCAR at [25] per Gray, Cooper and Selway JJ.
In SCAR the Full Court of the Federal Court went on to find that s.425 of the Migration Act imposed a statutory obligation to issue an invitation to an applicant to attend a hearing, in that case before the RRT, and that the invitation provided an opportunity to an applicant to attend an oral hearing for the purpose of giving evidence and presenting argument, and must not be a hollow shell or an empty gesture: SCAR at [33] per Gray, Cooper and Selway JJ. Compliance with s.425 of the Migration Act was said to be a necessary condition and element of a fair hearing by the RRT and a precondition to the valid exercise of its jurisdiction, and a failure to comply with those requirements under s.425 of the Migration Act involved jurisdictional error: SCAR at [36] and [38] per Gray, Cooper and Selway JJ. The Full Court of the Federal Court went on in SCAR to find that through no fault of its own the RRT did not comply with s.425 of the Migration Act because it did not extend a meaningful invitation to the visa applicant, and the visa applicant did not receive a fair hearing as required by s.425 of the Migration Act in the factual circumstances as set out at [23]-[24] above, with the result that the Tribunal made a jurisdictional error and its decision was invalid: SCAR at [41]-[42] per Gray, Cooper and Selway JJ.
In Minister for Immigration & Citizenship v SZNVW & Anor [2010] FCAFC 41; (2010) 183 FCR 575; (2010) 114 ALD 666 (“SZNVW”) the Full Court of the Federal Court was dealing with circumstances where a visa applicant had claimed to be suffering from procrastination and other psychological impairments when he gave evidence at an RRT hearing, but the RRT rejected his evidence, and the question arose as to whether the RRT fell into jurisdictional error by not complying with s.425 of the Migration Act: SZNVW at [3], [5] and [16] per Keane CJ. In SZNVW the following observations were made at [18]-[20] per Keane CJ:
18 In SCAR the Tribunal was oblivious of the facts which established that the applicant did not have a full and fair opportunity to present his case. The reasons of the Tribunal in the present case show that the respondent did, in fact, seek to rely upon his psychological problems first to explain his delay in applying for a visa, and then as a possible explanation for what might otherwise be thought to be unsatisfactory aspects of his evidence. Accordingly, this is not a case where the Tribunal was oblivious to the problem said to vitiate its jurisdiction.
19 More importantly, evidence that the respondent’s psychological difficulties might explain an unconvincing performance during the hearing before the Tribunal is hardly apt to establish his unfitness to “give evidence and present arguments.” It may be accepted that the Tribunal might have taken a different view of the credibility of the respondent’s account of his circumstances in Pakistan if the further evidence relating to the respondent’s psychological deficits and their impact on his ability to give persuasive evidence had been placed before the Tribunal. But the absence of that further evidence does not establish that the hearing before the Tribunal proceeded on a false assumption about the respondent’s ability to “give evidence and present arguments relating to the issues arising in relation to the decision under review”.
20 In my respectful opinion, s 425 of the Act did not require the Tribunal to press the respondent to call further evidence of his psychological problems or to expand his arguments relating to the ramifications of his problems for any aspect of the case he sought to present. Nothing in this Court’s decision in SCAR supports the contrary view, and in the recent decision of Gilmour J in SZMSA v Minister for Immigration and Citizenship [2010] FCA 345, especially at [20] – [25], the contention that an applicant’s psychological difficulties were such as to deprive him of the “meaningful opportunity” required by s 425 of the Act was rejected, correctly in my respectful opinion, on the footing that the applicant’s condition was not shown to be such as to deny him the capacity to give an account of his experiences, to present argument in support of his claims, to understand and to respond to questions put to him.
In SZNVW it was said that although it might be possible to say that a different view as to the visa applicant’s credibility might have been taken had more information been made available to the Tribunal as to the visa applicant’s psychological problems, that fell short of demonstrating that the visa applicant was denied a real and meaningful opportunity to give evidence and present arguments, or that that opportunity was impaired: SZNVW at [34] per Keane CJ, and that it was not the role of RRT to ensure that all possible lines of argument which might be available to an applicant in any given case were pursued to an applicant’s best advantage: SZNVW at [35] per Keane CJ. Emmett J agreed with the reasons of Keane CJ: SZNVW at [49] per Emmett J. Perram J distinguished the circumstances of SZNVW by reason of the fact that in SCAR the visa applicant was found not to be fit to represent himself whereas no such finding was made in SZNVW: SZNVW at [74] per Perram J. Perram J went on to observe that levels of so-called disability gave rise to issues of degree and practical judgment when assessing an applicant’s fitness to be involved and engaged in a hearing before an administrative decision-maker: SZNVW at [85]-[86] per Perram J.
In the present case:
a)the Tribunal was aware of the first applicant’s medical condition and treatment;
b)prior to the Tribunal hearing a request was made, and it was no more than a request unsupported by any evidence going to the first applicant’s fitness to participate in the Tribunal hearing, that the first applicant’s fragile physical and emotional state be taken into account at the Tribunal hearing;
c)there is evidence that when a complaint was made, or alternatively it was brought to the Tribunal’s attention, during the first day of the Tribunal hearing that the first applicant was unwell, that because of that the Tribunal adjourned the hearing for a substantial period of time;
d)although there was a brief adjournment during the course of the second day of the Tribunal hearing there is no evidence of any complaint at that time that the first applicant was feeling unwell or was not fit enough to participate in the second day of the Tribunal hearing;
e)there is no evidence (including in the voluminous medical records tendered: see CB 269-550) of any medical condition, or any medical treatment, which was said to have the effect of rendering the first applicant unfit to participate in the Tribunal hearing, and in particular the second day of the Tribunal hearing, and no evidence was led by the first applicant, either from the first applicant, or from any expert on her behalf, to demonstrate that she was not fit to participate in the Tribunal hearing at any time; and
f)there was, therefore, no evidence sufficient to warrant the Tribunal taking a more cautious approach than it did in assessing the first applicant’s credibility in the manner that it did at CB 571 at [63].
Ultimately, taking the two days of the Tribunal hearing as a whole, the evidence does not establish that the first applicant’s medical condition or treatment rendered denied her the capacity to give an account of her experiences, to present argument in support of her claim (and that of the second applicant) or to understand or respond to the questions put to her by the Tribunal (and in regard to the latter there is no evidence of the Tribunal hearing, such as transcript, before the Court, to aid the first applicant’s contentions): SZNVW at [20] per Keane CJ.
The Tribunal hearing in the present case was therefore a real and meaningful opportunity for the applicants to give evidence and present arguments to the Tribunal and the Tribunal has complied with the requirements of s.425 of the Migration Act.
Ground 3
In this matter the Tribunal considered the claims made by the applicants, and in so doing:
a)set out, considered and made findings in relation to the applicants’ claims, evidence and materials in a detailed manner: CB 563-577;
b)in making the findings had regard to, and correctly identified, the relevant law: CB 569 at [54] and Attachment B at CB 583-585 (dealing with the refugee and complementary protection criterion in particular), and, relevantly for the purposes of this case, dealt with the law with respect to credibility issues: CB 570 at [59]-[62]; and
c)correctly applied the law with respect to credibility: CB 571 at [63], the assessment of refugee protection claims: CB 571-576 at [64]-[82] and Attachment B at CB 583-584, and the complementary protection criterion assessment: see CB 576-577 at [83]-[88] and Attachment B at CB 584-585.
The Tribunal identified and applied the correct legal principles. The Tribunal’s analysis of the applicant’s claims was thorough and there is no error of law, let alone jurisdictional error, in the Tribunal Decision.
Conclusion and orders
The Court has concluded that none of the grounds in the Judicial Review Application have been made out and none of the grounds establish jurisdictional error in the Tribunal Decision. No other basis for a finding of jurisdictional error in relation to the Tribunal Decision is evident to the Court. In the circumstances, there must be an order dismissing the Judicial Review Application.
The Court will hear the parties as to costs.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 16 November 2018
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