Cii21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 300
•3 December 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CII21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 300
File number(s): SYG 1421 of 2021 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 3 December 2021 Catchwords: MIGRATION – Practice and procedure – application for adjournment of hearing of application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to a decision of the Administrative Appeals Tribunal (Tribunal) affirming decision not to grant a Protection visa – judgment on application for adjournment reserved on the basis that the Court would decide application after hearing the merits of the substantive application – application for adjournment dismissed – whether Tribunal considered or properly considered applicant’s claims – application dismissed. Legislation: Migration Act 1958 (Cth), ss 36(2)(a), 36(2)(aa), 476, 501C(4) Division: General Number of paragraphs: 24 Date of hearing: 11 November 2021 Place: Sydney The Applicant: Appeared in person, by video Solicitor for the First Respondent: Ms K Garaty of HWL Ebsworth Lawyers, by video ORDERS
SYG 1421 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CII21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
3 DECEMBER 2021
THE COURT ORDERS THAT:
1.The applicant’s application for an adjournment is dismissed.
2.The application is dismissed.
3.The applicant pay the first respondent’s costs set in the amount of $5,600.
THE COURT NOTES THAT:
4.These are orders of the Federal Circuit and Family Court of Australia (Division 2).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The applicant applies for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).
BACKGROUND AND CLAIMS FOR PROTECTION
The applicant is a citizen of Thailand. He first entered Australia in 1998 as the holder of a Tourist visa. The applicant was granted a number of other substantive visas, the last of which was a Resident Return visa (Subclass BN 155) granted in 2017. On 2 February 2019 the Minister cancelled that visa pursuant to s 501C(4) of the Act.
The applicant applied for a Protection visa in February 2021. In his application the applicant stated he left his country to get away from drugs; the applicant was fully addicted to the extent that his family had to step in to send the applicant to Australia; the applicant had drug dealers who tried to find the applicant and his family to “take [the applicant] out”, and the applicant seeks refuge in Australia. Additionally, the Thai community is really strict. The applicant’s uncle made a remark on social media which has marked the applicant’s family’s name, and the applicant will be thrown in jail if he returns to Thailand. The applicant also claimed that he is worried about relapsing, being thrown in jail, and being shot, if he returns to Thailand.
BEFORE THE TRIBUNAL
During the hearing before the Tribunal on 19 May 2021, the applicant said that Thailand was not like Australia because there is no support there for drug addicts like the applicant; in Thailand if a person is involved in drugs, he or she is put in jail; when the applicant was in Thailand in 2005 or 2006 a man asked the applicant to be a drug courier, and the applicant agreed, but then ignored the man’s telephone calls; and the applicant fears that man.[1] The applicant also said that his uncle in Australia made a negative remark on Facebook about the King of Thailand four years ago; and although the applicant could not remember exactly what his uncle said, his uncle got a lot of feedback.[2]
[1] CB137, [31]
[2] CB137, [33]
The applicant requested a second hearing before the Tribunal. He did so because he wanted an opportunity to obtain a lawyer. The Tribunal granted the applicant’s request but, at the second hearing on 15 June 2021, the applicant said he was unable to obtain legal representation. The applicant, however, gave further evidence. He produced letters from the applicant’s former partner, the applicant’s uncle, and from the applicant’s brother and sister.
TRIBUNAL’S REASONS
The Tribunal was satisfied that part of the applicant’s reasons for travelling to Australia in 1998 was to escape his addiction to drugs.[3] The Tribunal was not satisfied, however, there were “drug dealers who were my opposition to try to find me and my family to take me out”, as the applicant claimed. The Tribunal relied on the applicant’s having returned to Thailand on numerous occasions after he first arrived in Australia in 1998, which indicated to the Tribunal that the applicant did not fear drug dealers. The Tribunal also relied on the applicant’s not having claimed that any drug dealer harmed his family.[4]
[3] CB141, [63]
[4] CB141, [64]
The Tribunal did not accept that, when in Thailand in 2005 or 2006, a particular dealer asked the applicant to courier drugs to Australia. The Tribunal relied on the applicant not having made this claim in his application for a Protection visa, and the applicant’s not providing a reasonable explanation why he did not include the claim in his application.[5]
[5] CB142-143, [66]-[71]
The Tribunal was not satisfied the applicant’s uncle made any anti-monarchy comment in Australia on social media. The Tribunal relied on the absence of any documentary evidence of the comment, the absence of any evidence from the applicant’s uncle to support this claim, and the absence of evidence of the alleged repercussions from others following the comment.[6]
[6] CB141-142, [65]
The Tribunal also made the following findings:
(a)The Tribunal was not satisfied there is a real chance authorities in Thailand would shoot or arrest the applicant because of his drug convictions in Australia. The Tribunal relied on country information that the criminal law in Thailand prohibits double jeopardy if there has been a judgment in a foreign court.[7]
(b)If the applicant were to suffer harm in Thailand through drug addiction, the impact of drugs on him would not amount to persecution because persecution must involve infliction of harm by another with a motivation to harm; and the harm that may arise from lack of support from the health or justice systems for addicts is not harm “for one of the reasons” set out in the Act. Further, country information shows that screening, information, advice, intervention, treatment, rehabilitation, and relapse prevention services are available in hospitals and other locations in Thailand.[8]
(c)It would be very difficult for the applicant to return to Thailand after having lived in Australia since 1998, particularly as his daughter is living in Australia; and the applicant may again use drugs in Thailand, given the applicant frequently used drugs in Australia, and the applicant claimed there is an active drug culture in Thailand. The Tribunal, however, was not satisfied that harm caused by drug use would amount to any of the categories of significant harm set out in the Act.[9]
[7] CB145, [84]
[8] CB146, [87]
[9] CB147, [96]
In the light of these findings the Tribunal was not satisfied the applicant met the criteria for the grant of a Protection visa provided for by s 36(2)(a) and s 36(2)(aa) of the Act.
GROUND OF APPLICATION AND COURSE OF PROCEEDINGS
The applicant relies on the following ground of application (errors in original):
Jurisdictional error (my information for why I need a protection visa have no been considered in the way the I expect the court to.
At the hearing before me the applicant applied for an adjournment which the Minister opposed. After hearing the parties’ submissions in relation to the applicant’s application for an adjournment I decided to reserve my decision on the application for adjournment, and hear the merits of the application, the intention being that I would either grant the adjournment and give no judgment on the merits of the application, or refuse the adjournment and give judgment on the merits of the application. I then heard submissions on the merits of the substantive application.
APPLICATION FOR ADJOURNMENT
The applicant said he wanted to try to find a lawyer. He said he has been trying, but a lot of lawyers have knocked him back. The applicant unsuccessfully applied for legal aid. He said his sister was not previously in a position to offer financial assistance because, due to COVID her work had been reduced, but she may now be able to lend money to the applicant.
I do not doubt the applicant has attempted, and had done all he can do, to obtain legal assistance. That the applicant has been unable to obtain legal assistance is a basis for finding that the applicant has very little prospect of obtaining any legal assistance in the reasonably foreseeable future or, indeed, at all. Even if the applicant were able to obtain legal assistance, there is nothing in the reasons of the Tribunal that suggests there would be any tangible prospect that the applicant’s obtaining legal assistance could improve the applicant’s prospects of obtaining a successful outcome in this proceeding. In short, there would be no utility in my granting the applicant an adjournment to give the applicant time to obtain legal assistance.
I propose, therefore, to dismiss the applicant’s application for an adjournment.
MERITS OF GROUND OF APPLICATION
The ground stated in the application is to the effect that the Tribunal failed to consider the applicant’s claims in the way he expected the Court would consider those claims. So stated, the ground discloses no jurisdictional error because it is not part of this Court’s jurisdiction to determine whether the applicant is entitled to protection; that was the Tribunal’s task.
The ground on which the applicant relies may be interpreted as a claim that the Tribunal did not consider all of the applicant’s claims, or all of the material on which the applicant relied in support of his claims, and that the Tribunal did not afford the applicant procedural fairness. If that is what the ground is intended to claim, it does not identify any claim or material the Tribunal did not consider, or any act or omission that manifests a failure by the Tribunal to afford the applicant procedural fairness.
At the hearing the applicant submitted that if he is sent to Thailand this will affect his daughter, and the applicant’s position will get worse. The applicant said that drugs are a big part of things in Thailand. The applicant said he has made a lot of mistakes in the past, his situation in Thailand, and, given the time he has spent in Australia, he cannot picture himself in Thailand. The applicant also said he has good support in Australia.
At this point I informed the applicant that my focus is on the Tribunal’s decision, and I asked the applicant why he believed the Tribunal’s decision to be wrong. It was at that point that the applicant applied for an adjournment. After I heard submissions and reserved my judgment the applicant resumed his submissions. The applicant submitted the Tribunal did not understand how his returning to Thailand was going to affect him; the Tribunal has not been to Thailand.
Most of the applicant’s submissions were directed to the merits of his claims for protection. This Court does not have any jurisdiction to determine those claims. The balance of the submissions the applicant made to me could be taken, as the ground stated in the application could be taken, to claim the Tribunal did not properly consider or understand his claims, or all of the matters on which the applicant relies in support of those claims. I would not accept that claim. There is nothing in the Tribunal’s reasons that could suggest the Tribunal did not identify the applicant’s claims, or understand the claims and the materials before it that were relevant to the consideration of those claims, or properly consider the applicant’s claims. Further, I am satisfied the Tribunal has supported each of its essential findings with an intelligible justification.
The Minister has drawn to my attention that the Tribunal did not retain a copy of the letters from the applicant’s former partner, the applicant’s uncle, and from the applicant’s brother and sister, these being the letters the Tribunal referred to in its reasons. It is apparent that the Tribunal considered these letters; and no question of jurisdictional error is capable of arising from the Tribunal’s not having retained a copy of those letters.
For these reasons, I am not satisfied the applicant has shown the Tribunal made any jurisdictional error.
DISPOSITION AND COSTS
I propose to order that the application be dismissed.
The Minister applies for an order that the applicant pay the Minister’s costs set in the amount of $5,600. The applicant said he does not have access to funds with which to pay costs. That by itself is not a reason for not ordering costs if it would otherwise be appropriate to make such an order. I am satisfied that costs should follow the event, and that $5,600 reflects a fair indemnity of the costs the Minister incurred in successfully resisting the application. I will therefore also order that the applicant pay the Minister’s costs set in the amount of $5,600.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Dated: 3 December 2021
1
0
1