CKW15 v Minister for Immigration

[2018] FCCA 2018

FEDERAL CIRCUIT COURT OF AUSTRALIA

CKW15 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2018

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal had jurisdiction – whether the applicant was denied procedural fairness – no sufficient merit to warrant an order extending time under s 477 of the Act made out – application for an extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), s. 477.

Cases cited:

Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446.

Applicant: CKW15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3131 of 2015

Judgment of: Judge Street

Hearing date: 20 July 2018

Date of Last Submission: 20 July 2018

Delivered at: Sydney

Delivered on: 20 July 2018

REPRESENTATION

Counsel for the Applicant: Mr O Jones

Solicitors for the Applicant: Firmstone & Associates

Solicitors for the Respondents: Ms S Sangha
Mills Oakley

ORDERS

1. Grant leave to the applicant to rely upon the further amended application filed on 18 July 2018.

2. The application for an extension of time under s 477 of the Migration Act 1958 (Cth) is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $3,667.00.

4. The Administrative Appeals Tribunal is substituted as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3131 of 2015

CKW15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for an extension of time under s 477 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 17 October 2013 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. The applicant was found to be a citizen of Lebanon. The applicant arrived in Australia on 5 March 2010 on a Lebanese passport as the holder of a (Class TU) (subclass 572) Vocational Education and Training sector Student visa granted on 23 February 2010, which ceased on 5 August 2012. It was not until 9 August 2012 that the applicant lodged an application for a Protection (Class XA) visa.

3. The applicant claimed he feared harm for reason of his homosexuality or bisexuality and claimed that he came from an extremely conservative social and religious background and would be killed if he refused to marry. The applicant claimed he was physically and sexually assaulted by two uncles in Lebanon and claimed to have had two casual sexual relationships in Australia and attended gay venues. The applicant alleged the Lebanese authorities would not protect him if they discovered he was homosexual. The applicant further claimed that the general security and economic situation in Lebanon following the war with Syria put him at risk of being caught up in sectarian violence and impact on his capacity to subsist.

4. The delegate made adverse credibility findings in relation to the applicant’s claims. The delegate referred to the applicant’s claims of harm and threats being extremely limited and vague and not having been substantiated by evidence whether in the form of additional documents or information. The delegate referred to the applicant having become an unlawful non-citizen upon expiry of his student visa and the lengthy delay in the application for protection. The delegate found the applicant failed to meet the criteria for a grant of a Protection (Class XA) visa.

The Tribunal

1. The applicant lodged an application for review to the Tribunal on 14 December 2012. By letter dated 3 September 2013, the applicant was invited to attend a hearing on 18 September 2013. The applicant appeared before the Tribunal on 18 September 2013 to give evidence and present arguments. There was also adduced before the Tribunal a psychologist’s report by Mr H, dated 11 October 2013, which was referred to in the Tribunal’s reasons.

2. The Tribunal considered the applicant’s claim to fear harm on the basis of his sexuality, his political beliefs and his religion. The Tribunal referred to a further statutory declaration provided by the applicant on 28 August 2013. In that statement the applicant alleged it was more accurate to describe his sexual orientation as a bisexual man because at some point in the future he may want to have children.

3. The Tribunal identified having a concern about the credibility of the applicant’s claims and, in particular, given the delay in the making of his claims, the lack of detail provided to the Department, the applicant’s failure to attend the Departmental interview and the inconsistencies between his written claims and his oral evidence. These matters caused the Tribunal to have significant concerns about the credibility of the applicant’s claims to be attracted to men and to be engaged in homosexual relationships in Lebanon and Australia.

4. The Tribunal expressly referred to considering the Guidance on Vulnerable People dated June 2012 that can affect a person’s ability to participate in a review process. The Tribunal referred to a medical certificate provided by a GP that indicated that the applicant had consulted him in relation to stress. The Tribunal also took into account that the applicant alleged he had been the victim of sexual abuse at the hands of his uncle.

5. In assessing the applicant’s credibility, the Tribunal considered that the applicant came from a conservative Arabic background where sexuality is not talked of openly and that the applicant may be reluctant to discuss the details of his sexuality. The Tribunal also accepted that the review process is stressful for applicants appearing before the Tribunal and that it is particularly the case where the claims relating to the applicant’s sexuality and traumatic event are made. The Tribunal also had regard to the fact that the applicant was a young male who had a high school education, worked on his father’s farm and came to Australia as a student where he currently works as a labourer.

6. The Tribunal also had regard to a report of the psychologist which the Tribunal had earlier referred to. The Tribunal expressly referred to the psychologist having seen the applicant on one occasion, being 3 October 2013, for a psychological appraisal. The Tribunal noted the content of the report referred to the applicant’s protection claims and the applicant’s background and the applicant’s statutory declaration. The Tribunal referred to the psychologist’s assessment and the intelligence test and a delayed recall test and a personality test, and that the applicant’s individual testing was estimated to be in the middle of the below average range and that his powers for delayed recall were reasonably sound and that his personality was indicative of depression, anxiety and significant social introversion/withdrawal.

7. The psychologist concluded that the applicant had experienced no major physical health problems, although as a result of the sexual abuse in his adolescence the applicant developed post-traumatic stress disorder, exacerbating his pre-existing apprehensiveness and his fears of sexual orientation would be discovered. The Tribunal referred to the observation by the psychologist that the applicant had, on balance, the notion that he is bisexual, although he has a strong preference for involvement with men. The psychologist stated that with the passage of time and the achievement of a measure of independence, the applicant’s depression and anxiety should abate and his self-confidence and self-esteem increase. The psychologist concluded that returning the applicant to Lebanon would place him at great risk of persecution and may place his life in danger should his gay disposition be discovered.

8. The Tribunal noted that the psychologist placed his conclusions on the applicant’s statements during a single consultation and the applicant’s statutory declaration prepared for the purpose of the Tribunal hearing. The Tribunal noted that it was not suggested that the psychologist was provided with, or otherwise made aware of, the applicant’s previous written statement lodged with his protection visa application. Tribunal accepted that the report was written in good faith, but found that it was not bound by what a medical professional concludes as being the reason for the applicant’s symptoms.

9. The Tribunal accepted the psychologist’s conclusions that the applicant’s intellectual testing was estimated to be in the middle of the below average range, that his powers for delayed recall were reasonably sound, and that his personality was indicative of depression, anxiety and significant social introversion/withdrawal. The Tribunal noted that it is not suggested that the applicant requires or was receiving treatment for any of these conditions. The Tribunal identified its own concerns about the applicant’s credibility which caused the Tribunal to conclude that, to the extent that the psychologist’s report tends to corroborate the applicant’s account of events underlying his refuge claims, the report is to be given little weight.

10. The Tribunal referred to the applicant having been assisted in his evidence by an Arabic interpreter at the Tribunal hearing, and accepted that some inconsistencies are to be accepted in such circumstances. The Tribunal however considered that the inconsistencies in the applicant’s evidence are not capable of easy explanation and raise significant questions about the credibility of the applicant’s claims. The Tribunal was concerned about the inconsistency in the applicant’s evidence at the Tribunal hearing as to his sexual relationships in Lebanon and Australia, his claims about past abuse by family members, and his interactions in the gay community in Australia.

11. Having regard to the applicant’s evidence in its entirety, the Tribunal did not accept that the inconsistencies discussed with the applicant at the hearing can be attributed to any embarrassment and anxiety that the applicant may have discussing his sexuality, nor the impact upon him of traumatic events in the past.

12. The Tribunal did not accept the applicant’s particular claims to have been involved in a homosexual relationship in Lebanon or Australia. The Tribunal did not accept the applicant is a homosexual man as claimed. The Tribunal did not accept the applicant has suffered serious harm from any member of his family in the past, nor that there was a real chance that the applicant will do so in the future on the basis of his sexuality or religious beliefs. The Tribunal did not accept there was a real chance the applicant faces serious harm or significant harm from any person, group or organisation if he returns to Lebanon on the basis of his actual or imputed political beliefs or his religion.

13. The Tribunal found the applicant failed to meet the criteria for the grant of a Protection (Class XA) visa and affirmed the decision under review.

Before this Court

1. The application filed in this Court was filed on 18 November 2015. The Court, in considering whether there should be an extension of time, has taken into account a combination of factors in determining whether it is necessary in the interests of the administration of justice to extend time. The factors include the extent and reasons for the delay, as well as the merit of the application and any prejudice to the respondents.

2. The length of the delay in the present case was almost two years outside the time limit. It was accepted that the applicant in this period had sought Ministerial intervention. The delay in the present case can properly be described as inordinate and that, in these circumstances, it would be an exceptional case that warranted an extension of time in the interests of the administration of justice. It is relevant, in this regard, that the applicant has not filed any affidavit evidence explaining the delay, although an affidavit has been filed seeking to advance evidence in relation to ground 2 in the further amended application.

The grounds

1. The proposed grounds in the further amended application are as follows:

   Proposed Ground 1

   The Second Respondent made a jurisdictional error by purporting to make a decision on the review application in circumstances where there was no such jurisdiction.

   Particulars:

   a. At the time of the application for the protection visa dated 9 August 2012, the version of Form 866 used by the Applicant had been approved by the Minister under reg 1.18(1) of the Migration Regulations after item 1401 of Sch 1 to the Migration Regulations took effect on 20 October 1999;

   b. Item 1401 of Sch 1 to the Migration Regulations, by virtue of s 49A(1)(b) of the Acts Interpretation Act 1901 (Cth) as at 20 October 1999 (Interpretation Act) or s 14(1)(b) of the Legislation Act 2003 (Cth) (Legislation Act), was prohibited from incorporating Form 866 as it existed after item 1401 took effect. Rather by virtue of those provisions and notwithstanding s 14(4) of the Legislation Act and s 504(2) of the Migration Act, item 1401 was restricted to incorporating Form 866 to the extent that it existed when item 1401 took effect on 20 October 1999l and

   c. As a result, by virtue of s 46 of the Migration Act when read with reg 2.07 of the Migration Regulations and notwithstanding s35C of the Interpretation Act when read with s 13(1) of the Legislation Act, the application for the protection visa dated 13 January 2014 was invalid.

   d. Given there was no valid application for the protection visa, there was no statutory foundation for the Tribunal to make a decision on the review application.

   Proposed Ground 2

   1. The Tribunal made a decision based on a fact which was, albeit due to evidence not available at the time of the Tribunal’s decision, legally unreasonable.

   Particulars:

   a. The Tribunal at paragraph 20 of its decision had regard to the report of Mr H, psychologist, dated 3 October 2013.

   b. The Tribunal noted at paragraph 21 of its decision that Mr H concluded that the Applicant had experienced no major physical health problems.

   c. The Tribunal found at paragraph 22 of its decision that the report of Mr H ought, in light of the Tribunal’s own concerns about the Applicant’s credibility, be given little weight.

   d. The Tribunal found at paragraph 24 of its decision that the inconsistencies discussed with the Applicant at the hearing could not be attributed to the impact upon him of traumatic events in the past.

   e. It is legally permissible, in light of the Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at [457]-[459], to adduce evidence not before the Tribunal in order to establish that the decision of the Tribunal, albeit through no fault of its own, was legally unreasonable.

   f. There is a body of medical evidence to show that the Applicant has been suffering from a brain tumour which could have impaired his memory and other mental faculties at the time of the Tribunal’s decision.

   g. It is appropriate for the matter to be remitted to the Tribunal so that the Applicant’s credibility can be assessed with reference to the body of medical evidence regarding the brain tumour.

2. Proposed ground 1 relied upon a form 866 argument that has not been pressed by Mr Jones, counsel on behalf of the applicant, as giving rise to a basis upon which time should be extended. Mr Jones has however submitted that the medical evidence in the present case goes to advance a sufficiently arguable case on the merits to warrant an extension of time based on legal unreasonableness raised by proposed ground 2.

3. In this regard, Mr Jones relied upon the principles identified by the learned Weinberg J in Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446. Mr Jones contended, correctly, that what was said by the learned Weinberg J is not exhaustive of all the circumstances in which subsequent evidence may be admissible to establish legal unreasonableness. The learned Weinberg J identified two circumstances in which a Court may find that it is appropriate to receive further evidence in support of legal unreasonableness. The first being that the decision-maker lacked jurisdiction to make the decision because jurisdiction was dependent on an actual state of facts that did not exist; and the second being that the decision-maker based the decision on a particular finding of fact that did not exist.

4. The medical evidence that was admitted into evidence in support of there being a sufficiently arguable case to warrant an extension of time comprised a report by a neurosurgeon, dated 31 August 2017, identifying that the applicant had been found to have a benign tumour and that the applicant had presented with a background history of pilocytic astrocytoma, resected from the hypothalamus, first in 2014 and then in 2016. The report referred to the applicant having given a history of probably five years or so of headaches, sleep disturbance, personality change, irritability, and difficulty concentrating. The report referred to the symptoms probably occurring back in around 2009, and that the symptoms could be attributable to the tumour given the tumour’s growth pattern and presentation back in 2014. The report referred to the fact that the tumour was benign and that the applicant had made good progress since his second operation and referred to further monitoring.

5. The second report tendered is one dated 13 July 2018, by a general practitioner. The general practitioner’s report identifies having seen the applicant three times in 2011 with sudden headache, palpitation and dizziness, and, on one occasion, he attended hospital with similar presentations. The report referred to the diagnosis of a brain tumour in early April 2014, which was resected from the hypothalamus in 2014 and in 2016. The general practitioner opined that the tumour was the cause of many headaches of different intensity, variability and difficulty of concentration for many years and that the general practitioner could not rule out the effect of decline concentration along headache and sleep disturbance on the applicant’s reasoning and memory. Inconsistently with the second-last sentence and the inability to rule out the effect, the last paragraph is one in which the general practitioner asserted that there is no doubt that the applicant’s conditions had a negative effect on his reasoning, planning and could be memory decline.

6. Mr Jones contended that this was a case where the Tribunal had taken into account, in the adverse credibility findings, inconsistent evidence by the applicant and that where there was adduced before the Tribunal, both a doctor’s report in relation to the applicant suffering from stress, as well as a psychologist’s report, that was taken into account in the credibility assessment by the Tribunal. Mr Jones submitted that no reasonable Tribunal presented with the two doctors’ reports, if hearing the matter today, could fail to take the same into account expressly in determining whether or not to accept the applicant’s credibility.

7. The medical reports do not establish an actual state of facts that did not exist upon which jurisdiction was dependent or that a particular finding of fact did not exist. The reasoning of the Tribunal in the present case was not based solely on the inconsistencies in the applicant’s evidence but materially included the delay by the applicant in seeking protection and, in that regard, the applicant had become an unlawful non-citizen at the time the applicant applied for protection. The two medical reports do not establish a fact that make the adverse credibility finding by the Tribunal something that could be said to be so unreasonable that no reasonable decision-maker, taking the reports into account, could have rejected the applicant’s credibility on the basis of the inconsistencies and other matters referred to by the Tribunal.

1. The material rises no higher than material that would be relevant to a fresh assessment, but does not establish an actual state of affairs or fact upon which it can be said the decision of the Tribunal was based. I do not regard proposed ground 2 as having sufficient prospects of success.

Conclusion

1. The proposed grounds taken together with the inordinate delay in the present case to do not establish that an extension of time is necessary in the administration of justice under s 477 of the Act. Taking into account both the delay and the insufficient prospects of success, the Court is not satisfied that it is necessary in the interests of the administration of justice to extend time under s 477 of the Act. Accordingly, the application for an extension of time under s 477 of the Act is dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 28 September 2018