CHH16 v Minister for Immigration

[2017] FCCA 2227

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHH16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2227

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred by failing to invite and hear witnesses of the applicant – whether the Tribunal erred by failing to consider the claims of the applicant – no jurisdictional error –application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 425, 438, pt.7

Cases cited:

AMA15 v Minister for Immigration & Border Protection (2015) 244 FCR 131; [2015] FCA 1424

MZAFZ v Minister for Immigration & Border Protection (2016) 243 FCR 1; [2016] FCA 1081

SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235; [2013] FCAFC 71

Applicant: CHH16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2241 of 2016

Judgment of: Judge Smith

Hearing date: 1 August 2017

Date of Last Submission: 1 August 2017

Delivered at: Sydney

Delivered on: 1 August 2017

REPRESENTATION

The applicant appeared in person.

Counsel for the Respondents: Mr T Reilly

Solicitor for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2241 of 2016

CHH16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. The applicant is a citizen of India who arrived in Australia on an entertainment visa on 9 August 2004.  The applicant lodged an application for a protection visa on 16 August 2004.  The applicant claimed in that application that he feared persecution in India for reason of his political opinion because he had been active in the communist party and the trade union movement.  The applicant also claimed that he feared harm as a Christian.  That application was refused by a decision made by a delegate of the Minister on 16 September 2004.

2. The applicant applied to the Refugee Review Tribunal[1] (RRT) for a review of that decision.  The RRT made a number of decisions, the first of which was set aside by orders made upon judicial review.  The third decision, which was to affirm the decision of the delegate, was made on 11 September 2008.  The applicant unsuccessfully sought judicial review of that decision in this Court.  The applicant appealed to the Federal Court and then sought special leave to appeal to the High Court.  Both of those applications were unsuccessful.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

3. On 11 October 2012, the applicant lodged a second application for a protection visa and at this time, he made different claims.  Essentially, the applicant claimed that he was divorced in August 2010, that his ex-wife lives in Kerala and that her brothers are a part of criminal gangs.  Those brothers feel hatred and animosity towards the applicant because they feel that he deserted his wife and family.  The applicant claimed that he would be harmed by those brothers if he were to return to India. 

4. These claims were made on the basis that the applicant claimed to satisfy what is known as the complimentary protection criterion in sub-s.36(2)(aa) of the Migration Act 1958 (Cth) (Act).  Such an application was available to the applicant, in spite of his previous application. In light of the decision of the Full Court of the Federal Court in SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235; [2013] FCAFC 71.

5. The application, however was rejected by a delegate on 2 July 2014. The applicant applied to the RRT for review of that decision.  On 1 July 2015, the Administrative Appeals Tribunal (Tribunal) took over the function of the RRT in respect of decisions such as that of the delegate, and that Tribunal completed the review of the delegate’s decision.  On 27 July 2016, the Tribunal made a decision to affirm the delegate’s decision.  The applicant now seeks judicial review of that decision. 

6. There are seven grounds in the application, which I set out below (without alteration):

   1.Tribunal member did not allowed to submit more testimony and made jurisdictional omission and also did not properly consider the witness presented to RRT;

   2.Tribunal member errored by not properly considering the procedural fundamentals and allowed an opinion from Independent Protection Assessment Reviewer thus an error made by the RRT;

   3.Tribunal member did giver a chance to present witness and a fair hearing manner;

   4.Tribunal member did not attended the case and material produced before and after;

   5.The RRT made jurisdictional error in denying the application for Refugee Class XA in failing to consider all the facts and the law related to the refugee claims

   6.RRT failed to accept witness statements and telephonic interview, Tribunal did not consider the current state of prosecution and fear of death threats to his life, parent’s & other family members

   7.RRT failed to acknowledge the fact that Australia has protection obligations and accepted my claims in fair manner.

7. Before dealing with those grounds, it is necessary to briefly set out the way in which the review was conducted by the Tribunal, and the reasons for which the Tribunal came to its decision. 

Tribunal’s decision

1. In accordance with its obligation under s.425 of the Act, the Tribunal wrote to the applicant on 14 September 2015 inviting him to attend a hearing. The Tribunal noted in its letter that if the applicant proposed that a witness give evidence at the hearing, a witness statement should be provided to the Tribunal. The applicant replied to this letter in a document entitled “Response to hearing invitation – MR Division”. In that document under “Part 3 – Witnesses”, the applicant indicated that he wished the Member to take oral evidence from another person, but next to the name of the proposed witness, simply wrote “TBA”, which I take to mean “to be advised”. I note at this time, the applicant was represented by a firm of solicitors and migration agents throughout almost the process of review.

2. The history concerning the Tribunal’s invitation for the applicant to attend the hearing to be conducted by it, is lengthy, as are the attempts by the Tribunal to actually conduct the hearing.  That history is set out by the Tribunal in its statement of reasons at [7]-[27], which I set out below:

   7.The applicant was invited to attend a hearing on 24 November 2015 to give evidence and present arguments. On 23 November 2015 the Tribunal received a request to reschedule the hearing from the representative. The representative submitted a medical certificate from Dr Ragavan dated 23 November 2015 stating the applicant has a medical condition and would be unfit for work/study from 23 November 2015 to 24 November 2015 inclusive.

   8.The Tribunal granted the request to reschedule the hearing and invited the applicant to attend a hearing on 1 February 2016.

   9.On 1 February 2016 the Tribunal received a request to postpone the hearing. A medical certificate from Dr Ragavan dated 1 February 2016 was submitted stating the applicant had a medical condition and would be unfit for work/study/childcare from 1 February 2016 to 1 February 2016 inclusive.

   10.The Tribunal granted the request to reschedule the hearing and invited the applicant to attend a hearing on 4 April 2016. In the letter inviting the applicant to attend the hearing on 4 April 2016 the Tribunal noted it had granted the applicant's request to reschedule the hearing on two occasions, noting the medial certificates provided and the Tribunal requested, if the applicant was unwell again on the date of the hearing and wished to make another request to reschedule the hearing, that the applicant provide a medical certificate detailing the applicant's medical condition and why he is unable to attend a hearing and give evidence.

   11.On 29 March 2016 the representative informed the Tribunal the applicant had instructed that he was unable to attend the hearing on 4 April 2016 due to his medical condition, and enclosed a letter from Muhamad Ziedni dated 22 March 2016.

   12.The letter identified Muhamad Ziedni as a clinical psychologist who had seen the applicant for ongoing psychological treatment. The letter states the applicant suffers from symptoms that resemble the Diagnostic and Statistical Manual V of Major Depressive Episode at severe level and that there are indications that he reported symptoms of Post-Traumatic Stress Disorder that warranted clinical attention and that his GP Dr Vago has referred him to see a psychiatrist for further evaluation.

   13.The letter states the applicant has been attending weekly psychological treatment with Mr Ziedni every Monday and it is his professional opinion that his current mental health condition may compromise his capacity to attend an interview. The letter states the treatment plan is to continue psychological treatment that will be completed in four months' time and states Mr Ziedni fully supports the application for postponement until the applicant completes his physiological treatment.

   14.On 4 April 2016 the Tribunal granted the request to reschedule the hearing, noting it had taken into account the letter from Mr Ziedni. The Tribunal noted the hearing of this application for review had originally been scheduled for 24 November 2015 and had been rescheduled at the applicant's request three times. The Tribunal decided to reschedule the hearing on 17 May 2016 and sent the applicant a copy of the Tribunal's Guidelines on Vulnerable persons and noted he was most welcome to bring along a support person to the hearing, and that the Tribunal would seek to alleviate and minimize any stress at the hearing and intended to discuss the applicant's capacity to give evidence at the start of the hearing.

   15.The applicant appeared before the Tribunal via video conferencing from Sydney on 17 May 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malayalam and English languages. The applicant was represented in relation to the review by his registered migration agent who attended the hearing.

   16.The applicant was accompanied to the hearing by Mr John Brogner, a friend and former work colleague and supervisor, who attended the hearing in the capacity of a support person. The Tribunal discussed Mr Brogner's role in the hearing with the applicant, noting the applicant did not wish to call evidence from Mr Brogner and his presence was as a support person. The Tribunal granted the applicant's request for Mr Brogner to remain in the hearing room throughout the hearing.

   17.At the start of the hearing the Tribunal asked the applicant about his current health conditions. The applicant told the Tribunal he had been seeing the physiologist Dr Muhamad Ziedni on a weekly basis for the last three months for depression, and had seen a psychiatrist for the first time the Friday before the hearing. The psychiatrist had prescribed the applicant anti-depressant medication which he had begun to take that day. The applicant told the Tribunal he takes one tablet a day and expects the dose to increase over time. The applicant told the Tribunal he had not yet felt a change due to the medication. The applicant told the Tribunal that he was not taking any other medication, although he had taken some medication in the past for stomach problems. On questioning, the applicant told the Tribunal he felt well enough to proceed with the hearing although he can't recall some things. He told the Tribunal he had memory problems, and because of his depression he can't recollect things fast.

   18.During the hearing the Tribunal discussed with the applicant his background in India, his family composition, his education and work history, as well as the events that led up to his departure from India, his work and activities in Australia, and his fears of returning to India. The Tribunal has taken into consideration the medical certificates and the letter provided from Mr Muhamad Ziedni in relation to the applicant's health conditions and competence. The Tribunal accepts the applicant suffers from symptoms that resemble the Diagnostic and Statistical Manual V of Major Depressive Episode at severe level and that he has reported symptoms of Post-Traumatic Stress Disorder. Nevertheless the letter from Mr Ziedni does not explain how he arrived at his opinion that the applicant's current mental health condition may compromise his capacity to attend an interview. While the applicant told the Tribunal he was unable to recall some dates and deta·11s, and the Tribunal accepts he sees a clinical psychologist regularly and suffers from depression and had recently begun taking antidepressant medication, the Tribunal is satisfied the applicant understood the purpose of the hearing and the questions being asked, and was able to provide understandable answers to questions and to discuss his answers with the Tribunal in a manner which indicated active consideration of the information being discussed. The Tribunal is satisfied the applicant had the capacity to understand the questions being asked and to give an answer to those questions that could be understood. The Tribunal is satisfied the applicant was competent to give evidence and participate in the hearing.

   19.During the hearing the applicant told the Tribunal he feared returning to India because of a political issue, as well as a problem between Hindu's and Christians in his area in India, and because he is scared of his wife's brothers who are angry with him.

   20.During the hearing the Tribunal took a number of short adjournments to help alleviate the stress of giving evidence. On the first two occasions when the hearing resumed the applicant confirmed he felt well enough to proceed. On the third occasion, on resumption of the hearing the applicant told the Tribunal he had a headache and chest pain and felt unwell. When asked if he felt well enough to proceed with the hearing the applicant asked the Tribunal how much longer the hearing would take. The Tribunal told the applicant it estimated the hearing would take another 45 minutes or a little longer and the Tribunal planned to discuss its concerns about the applicant's credibility and its concerns with what the applicant had told the Tribunal during the hearing, and give the applicant an opportunity to make any comments on those concerns. The Tribunal granted a further short adjournment for the applicant to speak to his representative. On resumption the representative told the Tribunal the applicant still felt unwell and would prefer to adjourn the hearing. The Tribunal granted the request to adjourn the hearing to resume at another date.

   21.On 17 May 2016 the Tribunal sent the applicant an invitation to attend the resumed hearing on 27 May 2016.

   22.On 24 May 2016 the representative notified the Tribunal they were no longer representing the applicant. On the same day the applicant contacted the Tribunal and confirmed his agent was no longer representing him and requested all correspondence be sent to him directly and provided an email address. The applicant confirmed he would be attending the resumed hearing and the Tribunal forward a courtesy copy of the hearing invitation for the resumed hearing to his new address. The applicant discussed with the Tribunal officer the possibility of postponing the hearing so the applicant could find a new agent, and was advised to put any adjournment request in writing with his reasons for seeking the adjournment. The applicant advised he would discuss the matter with a friend.

   23.On 27 May 2015 the applicant appeared before the Tribunal. At the start of the hearing the applicant told the Tribunal he still had pain in his chest. On questioning, the applicant told the Tribunal he had not seen a doctor about this pain since the last hearing although he had seen his psychologist. The applicant told the Tribunal his representative had withdrawn only a few days before the hearing and he would like the opportunity to consult a new representative. He told the Tribunal he had made an appointment to see someone the following week. The Tribunal granted the applicant's request for an adjournment to consult a new representative.

   24.On 27 May 2016 the Tribunal sent the applicant an invitation to attend the resumed hearing on 24 June 2016.

   25.The applicant appeared before the Tribunal via video conferencing from Sydney on 24 June 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malayalam and English languages. At the start of the hearing the applicant told the Tribunal he had consulted two agents since the last hearing and could not afford their services.

   26.During the hearing the applicant confirmed he was taking medication for high blood pressure and was continuing to take medication for depression. The applicant indicated he was well enough to proceed but told the Tribunal he sometimes experiences pain if he sits too long. The Tribunal noted it would take breaks during the hearing if the applicant felt pain. The hearing lasted less than one hour and the applicant did not request a break or an adjournment due to pain.

   27.During the hearing the Tribunal raised its concerns about the applicant's credibility and his oral evidence given on 17 May 2016. At the conclusion of the hearing the applicant requested time in which to put further information in writing. After discussing this request with the applicant, noting the previous adjournment granted to allow the applicant to speak to a new agent, the Tribunal granted the applicant seven days to provide any further written material he would like the Tribunal to consider.

3. I would only add to that summary, that on each occasion the Tribunal wrote to the applicant in connection with the hearing, it sent him a document entitled “Response to Hearing Invitation – MR Division”. The applicant relevantly replied in respect of witnesses that he wished the Member to take evidence from, but did not give the name of that person.  Ultimately, the applicant did not attend the hearing with any person from whom he wished the Tribunal to take evidence.

4. The Tribunal made its decision on 27 July 2016.  The Tribunal rejected the applicant’s claims, essentially because it found that, apart from the claim concerning Christianity, the applicant’s evidence was not credible.  The Tribunal set out numerous reasons for this conclusion, including that the applicant had given inconsistent evidence and that, in certain respects, his evidence was vague and unconvincing.  For those reasons, the Tribunal rejected the applicant’s claims concerning his ex-wife and his involvement in the communist party and trade union movement. 

5. In respect of the applicant’s claim of Christianity, the Tribunal accepted that the applicant and his family were Christians. The Tribunal accepted that the applicant continued to visit church on a semi-regular basis, and would do so if he returned to India.  Whilst also accepting that it was plausible that the applicant was involved in a violent incident, at some time in relation to a procession in connection with his church, the Tribunal found on the basis of country information, that the risk the applicant might face due to his religion or practice in India was remote.  For those reasons, the Tribunal was not satisfied that the applicant met the criteria for the grant of a protection visa.

Consideration

Ground 1

1. The first ground in the application for review is that “Tribunal member did not allowed [sic] to submit more testimony and made jurisdictional omission and also did not properly consider the witness presented to RRT”.

2. It is not easy to understand this ground, but insofar as it means that the Tribunal did not allow the applicant to take evidence, or did not hear evidence from another witness other than the applicant, it must be rejected.  As I have noted, the Tribunal on numerous occasions gave the applicant the opportunity to indicate whether or not he wished to have a witness give evidence at the hearing, and, ultimately, the applicant did not bring any witness to give evidence at the hearing, other than himself. 

3. So far as the ground asserts that the Tribunal did not give the applicant any time to make further submissions, I reject the factual foundation for the claim on the basis that in its statement of reasons, the Tribunal discloses that it gave the applicant a further seven days after the hearing and the applicant did not take that opportunity.  If the ground is meant to assert that the Tribunal did not consider the applicant’s own evidence, that assertion too, is rejected.

4. The Tribunal’s reasons from [42]-[80], reveals a close analysis of the applicant’s evidence, both oral and written.  For those reasons, the first ground is rejected. 

Ground 2

1. The second ground is that the “Tribunal member errored by not properly considering the procedural fundamentals and allowed an opinion from Independent Protection Assessment Reviewer…”.

2. There was no independent protection assessment reviewer in this case and the ground appears to relate to some other decision.  Insofar as it focuses on procedural fundamentals, it is clear from the Tribunal’s summary, the efforts it took to invite the applicant to attend a hearing and to hold that hearing. Every reasonable opportunity was afforded to the applicant to take his right to appear at a hearing to give evidence and to present arguments in relation to the issues arising in respect of the decision under review.

3. The Tribunal adjourned the review on numerous occasions at the applicant’s request.  The Tribunal gave brief adjournments during the hearing in order for the applicant to recover from brief discomfort or feelings of unwellness.  For those reasons, the second ground is rejected.

Ground 3

1. The third ground is that the “Tribunal member did giver [sic] a chance to present witness and a fair hearing manner”. I have dealt with that ground in respect of grounds 1 and 2 and it is rejected for the same reasons. 

Ground 4

1. The fourth ground is that the “Tribunal member did not attended [sic] the case and material produced before and after”.  As I have said in respect of ground 1, the Tribunal’s reasons reveal that the Tribunal closely considered the applicant’s evidence, including his written and oral material.  This ground is rejected for the same reason.

Ground 5

1. The fifth ground is that the Tribunal “made jurisdictional error in denying the application for Refugee Class XA in failing to consider all the facts and the law related to the refugee claims”.

2. The Tribunal was not obliged to consider the refugee claims made by the applicant, insofar as refugee claims are understood to be claims to satisfy the criterion in sub-s.36(2)(a) of the Act. The applicant had already made an application based upon that criterion: see AMA15 v Minister for Immigration & Border Protection (2015) 244 FCR 131; [2015] FCA 1424. For that reason, the fifth ground is rejected.

Ground 6

1. The sixth ground is that the Tribunal “failed to accept witness statements and telephonic interview, Tribunal did not consider the current state of prosecution and fear of death threats to his life, parent’s & other family members”.

2. The reference to witness statements and telephonic interview is difficult to understand in the factual context of this case. The only witness statements were those given by the applicant in support of the applications for protection visas which were considered by the Tribunal.  The balance of the ground is addressed not to any jurisdictional error, but properly understood, is an assertion that the Tribunal was wrong to reject the applicant’s claims.  That is a matter that goes to the merits of the Tribunal’s decision and is beyond the competence of this Court.  For those reasons, ground 6 is rejected. 

Ground 7

1. Ground 7 is similar in that it asserts that the Tribunal failed to acknowledge that Australia has protection obligations and accept the applicant’s claims in a fair manner.  Ground 7 raises only the merits of the decision and cannot support the relief sought by the applicant.  For those reasons, the ground and the application are rejected. 

Certificate purportedly issued under s.438 of the Act

1. The Minister has properly brought to the Court’s attention, the existence in the material before the Court, of a certificate purporting to have been issued under s.438 of the Act. A similar certificate was considered in the decision of Beach J in MZAFZ v Minister for Immigration & Border Protection (2016) 243 FCR 1; [2016] FCA 1081. There are two reasons however for which I consider that unlike in that case, the existence of the certificate does not give rise to jurisdictional error. Both of those reasons spring from the fact that the document to which the certificate related, was a request by the Department of Immigration for confirmation of biographical details. I cannot see anywhere in the Tribunal’s reasons which suggests that the Tribunal acted upon that certificate in any way that might have resulted in procedural unfairness.

2. Further, I cannot see that the failure by the Tribunal to bring to the applicant’s attention the existence of the certificate might have possibly denied the applicant a different outcome.  Simply put, the request was irrelevant to the matters considered by the Tribunal, and there was no denial of procedural fairness involved in the Tribunal’s failure to bring the certificate to the applicant’s notice.  For both of those reasons, I consider that the certificate did not give rise to jurisdictional error.

3. I have carefully considered the Tribunal’s reasons for myself and can see no jurisdictional error in those reasons. In particular, I considered that the Tribunal closely followed its obligation to afford procedural fairness in the way prescribed by pt.7 of the Act. The Tribunal otherwise considered each of the applicant’s claims and all his evidence, and made findings to it that were open on the evidence before it. The Tribunal’s reasons did not disclose any misunderstanding of the criteria to be applied.

Conclusion

1. For those reasons, as well as the reasons I have given in respect of the grounds of the application, I conclude that there is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:       19 September 2017