Cke16 v Minister for Immigration

[2017] FCCA 2774

FEDERAL CIRCUIT COURT OF AUSTRALIA

CKE16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2774

Catchwords:

MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision of delegate of Minister for Immigration and Border Protection not to grant applicant a Protection (Class XA) visa – whether Tribunal considered psychologist’s report concerning applicant’s mental health – whether notwithstanding the applicant’s mental health condition the applicant was given a real and meaningful hearing before the Tribunal to give evidence and present arguments – whether the applicant requested time to present additional submissions – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 36(2A), 48A, 422B(3), 424AA, 424A, 425(1)

Cases cited:

Minister for Immigration and Citizenship v SZNCR [2011] FCA 369

Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41

SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71

SZRSN v Minister for Immigration and Citizenship [2013] FCA 751
SZSNX v Minister for Immigration & Anor [2015] FCCA 2271

Applicant: CKE16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2333 of 2016

Judgment of: Judge Manousaridis

Hearing date: 9 November 2017

Date of Last Submission: 9 November 2017

Delivered at: Sydney

Delivered on: 17 November 2017

REPRESENTATION

Applicant in person assisted by an interpreter

Counsel for the First Respondent: Mr P Knowles

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2333 of 2016

CKE16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a citizen of the People’s Republic of China, seeks judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant to the applicant a Protection (Class XA) visa (Protection visa).

Background

1. The applicant arrived in Australia as the holder of a tourist visa on 30 September 2006. On 5 October 2006 she applied for a Protection visa (First Protection visa application), which was refused by a delegate on 6 December 2006. The delegate’s decision was affirmed by the Refugee Review Tribunal (RRT) on 1 May 2007. The applicant unsuccessfully applied for judicial review to this Court, and an appeal to the Federal Court of Australia was dismissed. The applicant remained in Australia as an unlawful non-citizen for nearly 5 years until she was placed in immigration detention. A subsequent application for Ministerial intervention was unsuccessful.

Claims for protection

1. On 2 September 2013 the applicant applied for a second Protection visa (Second Protection visa application), as she was entitled to do, notwithstanding s.48A of the Migration Act 1958 (Cth) (Act), because of the decision of the Full Federal Court in SZGIZ v Minister for Immigration and Citizenship[1].

   [1] [2013] FCAFC 71

2. In a statement made on 20 August 2013 that formed part of her Second Protection visa application (Statement) the applicant claimed as follows[2]:

   [2] CB48-54

   a)The applicant was born in Shanghai, China.

   b)The applicant developed a number of mental health issues after she lost all her immediate family members within a period of three years.

   c)The applicant’s mental health issues were aggravated after her husband of more than ten years “suddenly filed an application for divorce”, accusing the applicant of “not being able to conceive a baby”.

   d)The applicant began “to have hallucinations” and “more often than not” the applicant would “scream and yell at night during the course of sleeping”. The applicant feels scared of being alone since being placed in immigration detention. While she has received treatment for her mental health issues she still has “terrible dreams at night.”

   e)Given the severity of the applicant’s mental health issues she has had to be on medications for an extended period of time and has had to be carefully monitored by the community and mental health professionals on a regular basis.

   f)If returned to China the applicant fears “severe pain and suffering” as she will be denied access to mental health services as she has been absent from China for approximately eight years, and her name may have been removed from Hukou, the household registration list.

   g)It “appears to be impossible” for the applicant to have her Chinese residency status reinstated due to Shanghai municipal regulations that require the applicant to have sufficient funds to resume her life in Shanghai and “stable and long-term accommodation” in Shanghai. The applicant claims she will be unable to satisfy these requirements as her parents passed away and bequeathed their property to her dead brother, leaving her nowhere to live, and with no assets or savings.

   h)Even though there has been some relaxation on the restrictions of freedom of movement in China, the applicant will face “enormous difficulty in securing permission to relocate” within China prior to the reinstatement of her “residency status”.

   i)Without financial or familial support the applicant’s mental health will deteriorate and she may become suicidal. Also being a female at her age and without a family and the “capability to subsist” will lead the applicant to face “severe social ostracism”.

   j)The applicant has become dependent on the government to provide her with medical treatment, accommodation, counselling services and financial assistance.

   k)Despite not being accepted by the delegate when considering her First Protection visa application or by the RRT the applicant states that she did take “part in a number of FaLun Gong-related activities, especially protesting the persecution on Falun Gong students in [C]hina in front of China’s embassy in Canberra” and the applicant fears being tortured or cruelly treated by Chinese Authorities if returned to China.

   l)The applicant fears significant harm in the form of “arbitrary interrogation, arrest, torture and being sent to the “education through labour camp”.”

3. In the Statement the applicant annexed a number of documents attesting to her mental state, including evidence of consultations with various medical professionals and medications prescribed to her.

Proceedings before the Tribunal

1. The applicant appeared before the Tribunal to give evidence and present arguments on 23 April 2015, 25 May 2015, and 25 July 2016. She was assisted by a migration agent who informed the Tribunal he was acting pro bono.[3] The Tribunal accepted the applicant had a mental health condition as confirmed by a number of reports from STARTTS,[4] and it noted in its reasons that it was “sensitive, during its questioning, of the need to be aware of [the applicant’s] vulnerable state of mind and her emotions”.[5]

   [3] CB328, [3]

   [4] That is the acronym for the New South Wales Service for the Treatment and Rehabilitation of Torture and Trauma Survivors

   [5] CB334, [23]

Tribunal’s reasons

1. The first matter the Tribunal considered was whether it was satisfied the applicant was able to give evidence to the Tribunal and participate in the hearings. It found the applicant was “competent to give evidence and present arguments in support of her claims at the hearings”.[6] The Tribunal relied on its findings that, save for two examples, the applicant was responsive and capable of understanding the Tribunal’s questions; the applicant’s representative sat beside the applicant throughout the Tribunal’s hearings and explained the applicant’s responses to the Tribunal’s questions; and the Tribunal provided breaks to the applicant when requested.[7] In relation to one of the two examples where the applicant showed confusion, the Tribunal noted the applicant was quickly able to repeat her earlier response to the Tribunal’s question.

   [6] CB342, [54]

   [7] CB341-342, [54]

2. The Tribunal then referred to the “increasing frequency of reference to suicidal ideation” in the psychological reports that were before it and, in light of those reports, considered whether the possibility of harm inflicted “by an applicant upon themselves” could fall within the scope of Australia’s complementary protection obligations.[8] Relying on the Department of Immigration and Border Protection’s “PAM3 Complimentary [sic] Protection Guidelines” (PAM3), the Tribunal found that an act of suicide by an applicant does not fall within the definition of “significant harm” in s.36(2A) of the Act because the descriptions of the types of “significant harm” are passively worded thus indicating that the harm must be one that is inflicted by a third party on an applicant and not by an applicant on themselves.[9] The Tribunal also considered whether the actual act of removal of an applicant could by itself fall within the scope of Australia’s complementary protection obligations.[10]

   [8] CB342, [57]

   [9] CB342, [58]

   [10] CB342, [57]

3. The Tribunal then made the following findings:

   a)Any harm to the applicant that may arise from the act of removing the applicant from Australia would not amount to “significant harm” as defined in s.36(2A) of the Act.[11] The Tribunal referred to the Full Federal Court’s decision in SZRSN v Minister for Immigration and Citizenship, [12] which confirmed that harm arising from the act of removal itself will not meet the definition of “significant harm” in s.36(2A) of the Act. The Tribunal also referred to a decision of Judge Driver in SZSNX v Minister for Immigration & Anor[13]  where his Honour applied SZRSN and concluded that any psychological suffering an applicant may experience in being removed from Australia would not be intentionally selected or intended to subject that applicant to further harm. The Tribunal concluded that, although the risk of harm envisaged by s.36(2A) of the Act must arise as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, s.36(2A) of the Act will not be engaged by harm inflicted by the act of removal itself.[14]

   b)The applicant is not a Falun Gong practitioner, she did not demonstrate in front of the Chinese Embassy in Canberra, and she would not be of interest to Chinese authorities “for this reason” if she is returned to China.[15] The Tribunal relied on the applicant having told it she no longer practices Falun Gong, the applicant’s not having advanced any evidence to demonstrate that the RRT was incorrect in not accepting the applicant was a Falun Gong practitioner; and the applicant’s having stated that she would “need to run to do FG”.[16]

   c)Relying on country information[17] the Tribunal found the applicant will be able to obtain a Hukou on her return to China and, for that reason, she will be able to access health services, accommodation, and employment support.[18]

   d)The applicant will be able to access medical treatment, including medication and counselling that is usually made available to persons in China.[19] Although the Tribunal acknowledged the level of health services that would be available to the applicant in China would possibly be less than the health services that would be available to the applicant in Australia, it was not satisfied this would give rise to a real risk of arbitrary deprivation of life, or give rise to any other significant harm for the purposes of the complementary protection provisions of the Act. Further, any lack of medical treatment in China would not give rise to protection obligations because there would be no intention to inflict significant harm on the applicant.[20]

   e)The applicant is not at risk of involuntary institutionalisation either at the instigation of her remaining family or due to her mental health condition.[21] The Tribunal relied on its earlier findings that the applicant would be able to access some medical treatment in China, and that the applicant has “constantly demonstrated her resilience”.[22]

   f)The Tribunal was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s being removed to China, there is a real risk she will suffer significant harm due to her inability to find work or due to the economic conditions in China.[23]

   g)The applicant will not be rendered homeless if she were returned to China, even if it were accepted that, as the applicant claimed, all her family have predeceased her, and that the family home had not been bequeathed to her.[24]

   h)The Tribunal was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s being removed to China there is a real risk she will suffer significant harm due either to discrimination experienced by women, including women without children, or due to social ostracism as a single mature-aged female without family support.[25]

   i)The Tribunal was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s being removed to China there is a real risk she will again be the victim of an attack from the stranger who endeavoured to choke or rape her.[26] This finding was made in response to a claim or set of claims the applicant raised for the first time at the first hearing before the Tribunal. The applicant there initially claimed she had been raped but then claimed she had been assaulted.[27]

   [11] CB343, [60]-[61]

   [12] [2013] FCA 751

   [13] [2015] FCCA 2271

   [14] CB343, [60]

   [15] CB344, [65]

   [16] CB344-345, [64]

   [17] CB344-345, [67] - [71]

   [18] CB345, [72]

   [19] CB349, [89]

   [20] CB349, [89]

   [21] CB351, [99]

   [22] CB351, [99]

   [23] CB352, [103]

   [24] CB355, [118]

   [25] CB356, [122]

   [26] CB357, [126]

   [27] CB356, [123]

4. The Tribunal concluded as follows:[28]

   The Tribunal has some sympathy for the situation in which [the applicant] finds herself, especially in light of the mental health issues referred to in the multiple reports from STARTTS. In this regard, the Tribunal has taken into account that [the applicant] may appear more vulnerable due to her psychological and mental health. However, having considered her claims individually and cumulatively for the stated reasons, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to China, there is a real risk she would suffer significant harm in the form of arbitrary deprivation of life, or the death penalty be carried out [sic], or torture, or cruel or inhuman treatment or punishment, or degrading treatment or punishment. Therefore, she does not satisfy the requirements of s.36(2)(aa) of the Act.

   [28] CB357, [129]

Grounds of application

1. The grounds of application raise three grounds. The first is as follows (errors in original):

   …during the course of the third Tribunal hearing taking place on 25-July-2016, in spite of the fact I notified the Tribunal repetitively that I was feeling disoriented, confused and having splitting headache; the tribunal ignored the foregoing evidence [being evidence contained by a report prepared by a STARTTS psychologist, Ms Aiello] provided by professional health clinician about my mental health status and pressed me to give oral responses to the new acquired DFAT Country information in relating to the reactivation  of my Family Household Registration which states (quoted by the Tribunal in Paragraph 68 of its decision): “A Hukou does not expire. Chinese Citizens who have previously been living abroad can use their passports for identification upon return to China until they obtain a HuKou or Identity Card.” I was at the verge of mental breakdown and as such, I was not in a clear state of mind to address the questions put up to me by the tribunal.

2. The second ground is as follows (errors in original):

   My migration agent made a request to the tribunal, seeking additional time to respond the Country Information concerning the outcome of my review application in writing, but was ignored by the Member who subsequently, affirmed the decision under the review by relaying upon the DFAT information as part of its reasons.

3. The third ground is as follows (errors in original):

   Other than that, without having taken account of my mental health issues during the course of the hearing and ignored my agent’s request to submit my responses in writing, I am not convinced the Tribunal hearing was conducted in a fair and just manner as required by s422B (3) of the Migration Act. As the result of that, the Tribunal also erred in applying the basic principle with respect to procedural fairness which specifies that a person should have an opportunity to put his or her case and to meet the case that is put against him or her. The errors which have been identified above have explicitly affected the outcome of the decision on my merits review application.

4. At the hearing before me the applicant, who is not legally represented, said a migration agent prepared these grounds, but she was not aware of what was contained in them. I adjourned the matter to enable the grounds to be interpreted to the applicant. The applicant then made submissions to me. I will first consider each of the grounds raised in the grounds of application and then refer and consider the submissions the applicant made to me.

Ground 1

1. The claim made in ground 1 is that the Tribunal did not take into account a psychologist report prepared by Ms Aiello of STARTTS. I do not accept that claim. The Tribunal referred to Ms Aiello’s report at paragraphs 55 and 57 of its reasons for decision. Further, as I have already noted, the Tribunal was aware of and accepted the evidence concerning the applicant’s mental health condition;  the Tribunal was “sensitive, during its questioning, of the need to be aware of [the applicant’s] vulnerable state of mind and her emotions”; the Tribunal considered whether, because of her mental health condition, the applicant was competent to give evidence and present arguments in support of her claims at the hearing before it; and, having concluded the applicant was competent, the Tribunal conducted the hearing having regard to the applicant’s mental health condition.

2. Ground 1, therefore, is not made out.

Ground 2

1. This ground relates to the Tribunal’s relying on country information provided by DFAT (that is the “Department of Foreign Affairs and Trade”) about household registration in China. That appears to be intended to be a reference to the information contained in a document titled “Extended Q & A Report China . . . . PRC Exit-Entry Administration Law – ‘Overseas Chinese’ – Hukou – Homelessness – Mental health” dated 14 July 2015 (DFAT country information).[29] The document was issued by DFAT as a result of a request made by the Tribunal on 19 June 2015, that is, after the second hearing. It is reasonable to infer the Tribunal made the request after it received written submissions dated 8 June 2015 from the applicant’s representative.[30]

   [29] CB213

   [30] CB199; CB340-341, [52]

2. Ground 2 may be taken to make two complaints. One is that the applicant’s representative requested the Tribunal give the applicant further time to respond to the DFAT country information but the Tribunal refused. There is nothing in the material before me that supports this claim. At the third and final hearing of 25 July 2016 the Tribunal “put to [the applicant] country information that citizens returning to China generally appear to have no difficulty in restoring their Hukou provided they either have not obtained foreign citizenship or, in the alternative, did not leave China on a false passport”.[31] The Tribunal also discussed with the applicant “country information regarding treatment of persons in China with medical conditions”.[32] I find that the country information the Tribunal put to and discussed with the applicant is the DFAT country information. There is nothing in the material before me that indicates the applicant or her representative requested time to make submissions in relation to the DFAT country information the Tribunal put to or discussed with the applicant at the hearing of 25 July2016.

   [31] CB340, [49]

   [32] CB340, [50]

1. The second complaint is that the Tribunal failed to comply with s.424AA and s.424A of the Act. The Tribunal, however, was not required to comply with s.424A of the Act in relation to the DFAT country information. The DFAT country information is information of the sort identified in s.424A(3)(a) of the Act, namely, information that “is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member”. Section 424A of the Act, therefore, does not apply to this class of information.

2. Ground 2 is, therefore, also not made out.

Ground 3

1. Ground 3 claims the Tribunal did not act fairly and justly, contrary to s.422B(3) of the Act. The stated basis of this claim are the claims that the Tribunal conducted the hearing without having taken into account the applicant’s mental health issues and by ignoring the applicant’s representative’s request to submit a response in writing to the DFAT country information. I have already found that the Tribunal was aware of the applicant’s mental health condition, and that it assessed and found the applicant was competent to participate in the hearings, but it nevertheless conducted the hearing having regard to the applicant’s mental health condition. I have also noted there is nothing in the material before me to suggest the applicant’s representative requested the Tribunal permit the applicant further time to provide a response to the DFAT country information. And there is nothing in the material before me to suggest the applicant or her representative requested the Tribunal permit the applicant or her representative to put in writing a response to the DFAT country information.

2. Counsel for the Minister made submissions on the assumption that ground 3 could reasonably be read as claiming that the applicant’s mental health condition denied her a real and meaningful hearing provided for under s.425(1) of the Act. Counsel referred to the Full Federal Court decision in Minister for Immigration and Citizenship v SZNVW[33] and to the judgment of Tracey J in Minister for Immigration and Citizenship v SZNCR.[34] I will not set out the passages from the judgment of Keane J in SZNVW on which counsel for the Minister relies; but it would be useful to set out the following passage from the judgment of Tracey J in SZNCR on which counsel for the Minister relied:[35]

   Following SZNVW an applicant who has a diagnosed mental impairment which does not render him or her “entirely unfit” to attend a Tribunal hearing and answer questions cannot be held to have been denied a “real and meaningful” opportunity to participate in the appeal hearing. It must be demonstrated that the applicant was unfit (in the sense of being unable) to give evidence, present arguments and answer questions in the course of the hearing.

   [33] [2010] FCAFC 41 at [20]-[22]

   [34] [2011] FCA 369

   [35] [2011] FCA 369 at [30]

3. Although the Tribunal did not refer to SZNVW or SZNCR, the Tribunal in substance considered whether, given the applicant’s mental health issues, the applicant was nevertheless fit to give evidence, present arguments, and answer questions. The Tribunal also conducted the hearing before it having regard to the applicant’s mental health issues. I am not satisfied, therefore, the applicant was not given a real and meaningful hearing before the Tribunal. Further, the applicant has not adduced any evidence in this Court about her mental health condition at the time she appeared before the Tribunal for the purpose of proving that, because of her mental health condition, she was unable to give evidence, present arguments, and answer questions in the course of the hearing.

4. Ground 3, therefore, also fails.

Submissions made at the hearing

1. The applicant made two submissions before me. First, she submitted that her representative had requested the Tribunal give the applicant more time to make further submissions to it about “house registration”. As I understood the applicant, she said that during the hearing her representative wanted to talk more about the Hukou but the Tribunal said it was not necessary.

2. There is not in evidence before me the transcript of the hearing before the Tribunal. The Tribunal’s reasons, however, record what was said at the time the Tribunal put to the applicant the effect of the DFAT country information in relation to Hukou, namely, that citizens returning to China generally appear to have no difficulty in restoring their Hukou provided they either have not obtained foreign citizenship or, did not leave China on a false passport. The Tribunal’s reasons then record the following:[36]

   [The applicant] confirmed that she does not have citizenship of any country other than China and that she did not leave China on a false passport. The Tribunal acknowledged being aware of [the applicant’s] many submissions, and those of her representative, on this issue.

   [36] CB340, [49]

3. This passage does not suggest the applicant or her representative wanted to make further submissions in response to the Tribunal’s saying it was not necessary that the applicant provide further submissions in relation to Hukou. This part of the applicant’s submissions, therefore, does not demonstrate any jurisdictional error by the Tribunal.

4. Second, the applicant made a number of submissions concerning her ability to have her Hukou restored to her if she returns to China. These submissions, however, relate to the merits of the applicant’s claims for protection and are matters this Court has no jurisdiction to consider.

Conclusion and disposition

1. The applicant has not shown the Tribunal made any jurisdictional error. I propose, therefore, to order that the application be dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 17 November 2017