Cza20 v Minister for Immigration

[2021] FCCA 259

FEDERAL CIRCUIT COURT OF AUSTRALIA

CZA20 v MINISTER FOR IMMIGRATION & ANOR [2021] FCCA 259

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection visa – application for an extension of time under s 477 of the Migration Act 1958 (Cth) – whether the Tribunal acted in a legally unreasonable manner – no jurisdictional error at an impressionistic level – extension of time not necessary in the interests of the administration of justice – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 5AAA, 5J, 36, 476, 477

Applicant: CZA20

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MUTLICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1625 of 2020

Judgment of: Judge Street

Hearing date: 15 February 2021

Date of Last Submission: 15 February 2021

Delivered at: Sydney

Delivered on: 15 February 2021

REPRESENTATION

The applicant appeared in person via Microsoft Teams.

Counsel for the Respondents: Ms K Hooper, via Microsoft Teams

Solicitors for the Respondents: Mills Oakley

ORDERS

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

2. The applicant pay the first respondent’s costs fixed in the amount of $3,737.00.

Date of order: 15 February 2021

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1625 of 2020

CZA20

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction, under s 476 of the Migration Act 1958 (Cth) (“the Act”) in which the applicant is seeking an extension of time under s 477 of the Act, where the proceedings were commenced 37 days outside the relevant time period. 

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing under s 477 of the Act. The form of application complies with the requirements of s 477(2)(a) of the Act.

3. The applicant’s explanation for the delay relates both to his medical condition and him being in detention. 

4. The first respondent accepts that the applicant has provided an explanation that cannot be said to be unsatisfactory in respect of the delay, nor is there any particular prejudice to the Minister in relation to the delay. 

5. Accordingly, the only issue is determining whether the Court should extend time for the bringing of proceedings. This involves determining whether, at an impressionistic level, the applicant has a reasonably arguable case of jurisdictional error by the Administrative Appeals Tribunal to make an extension of time necessary in the interest of the administration of justice.

6. The applicant is a citizen of Indonesia. 

7. The applicant applied for a Protection visa on 16 December 2019. 

8. The applicant claimed to fear harm by reason of his propensity for drug addiction and by reason of his bipolar disorder, and on the basis that he has no work skills with no family network in Indonesia and that he would not be able to subsist, and both the Indonesian authorities and criminal elements would cause him harm. The applicant has a Chinese ethnicity. 

9. On 6 January 2020, a delegate of the first respondent (“the Delegate”) found that the applicant failed to meet the criteria for the grant of a Protection visa. 

10. The applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for review on 6 January 2020. The applicant was invited to and attended a hearing before the Tribunal on 1 April 2020 to give evidence and present arguments. 

11. The Tribunal, in its reasons, identified the background to the applicant’s application for protection, and identified the relevant law in an appendix incorporated into the Tribunal’s reasons.

12. The Tribunal referred to the applicant’s claims to fear harm, and in particular, his mental problem, being bipolar, and his claims that mental people with issues are treated very badly in Indonesia and put in a room. 

13. The Tribunal referred to the applicant’s mother’s evidence, and the submissions advanced by the applicant’s representative as to why he would not be able to subsist if he returned to Indonesia. 

14. The applicant contended that he had never worked in Indonesia, and had just helped his Auntie until his father died.

15. The applicant also claimed to fear harm by reason of being a Chinese Christian. 

16. The Tribunal identified a number of concerns in relation to the credibility of the applicant, including the dates that he had travelled to Indonesia, and outlined their relevance as to whether he faced a real risk, or a real chance of serious harm or significant harm on return to Indonesia. 

17. The Tribunal referred to the statement provided by the applicant and by his mother, and referred to the applicant’s evidence lacking detail as to his treatment and the difficulties he faced due to his Chinese ethnicity, together with the fact that he did not experience harm in Indonesia, and found this to undermine his claim in relation to having faced difficulties in the past, and that there is a real chance, or real risk that he would do so in the future. 

18. The Tribunal found that the applicant’s repeated return to Indonesia for holidays for a month at a time, even holding an Australian permanent visa at the time of his return for three months in 2008, undermines his claim to fear harm on account of his Chinese ethnicity and Christian religion, and undermines the applicant’s claims to fear harm based on the difficulties he claims, including being abused, treated as an outcast, and facing police brutality, which the applicant asserted related to his ethnicity and religion. 

19. The Tribunal was not satisfied that the applicant faced any of these difficulties amounting to serious harm or significant harm on account of his Chinese ethnicity or mixed race or as he is perceived as of Chinese ethnicity prior to his departure from Indonesia, and when he subsequently returned in 2005, 2006, and 2008. 

20. The Tribunal found that it did not accept that the difficulty the applicant faced in the distant past while he was at school caused him to fear to return to Indonesia in 2005, 2006, and 2008, or that there is a real risk, or real chance of serious harm or significant harm in the reasonably foreseeable future. 

21. The Tribunal referred to country information, and referred to some evidence of discrimination, but was not satisfied that there is a real risk that the applicant will suffer significant harm as he is of Chinese ethnicity, or an Indonesian of part Chinese ethnicity, or because he is perceived as of Chinese ethnicity, or of mixed race.

22. The Tribunal referred to having considered the applicant’s claim of economic harm, and his inability to subsist on account of his ethnicity, but did not accept that there is evidence to support the applicant’s claims that he will face discrimination or a lack of access to the work force, or any difficulties obtaining employment that will leave him to be unable to subsist on account of his Chinese ethnicity, mixed race, or as he is perceived as being Chinese. 

23. The Tribunal turned to the applicant’s claims of fear of harm on account of being a Christian and referred to country information. 

24. The Tribunal referred to there being no evidence that the applicant has been unable to practise his religion, including attending religious services in Indonesia, on the basis of his return to Indonesia in 2005, 2006, and 2008, and took those matters into account as undermining his claim of fear of harm. The Tribunal did not accept that the applicant faced any difficulties in Indonesia amounting to serious harm or significant harm in the past on account of his religion, or his ability to practise his religion. The Tribunal did not accept that the applicant faced a real chance of persecution involving serious harm were he to return to Indonesia in the reasonably foreseeable future as a Christian, or a Chinese Christian, or that he would be unable to practise his religion. The Tribunal also found that it was not satisfied that there was a real risk that the applicant will suffer significant harm as a Christian, or a Chinese Christian, or that he would be unable to practise his religion. 

25. The Tribunal turned to the applicant having a criminal record and being convicted in Australia, and the Tribunal did not accept that there is a real chance of persecution involving serious harm, were the applicant to return to Indonesia, from the police, or gangs, or authorities, or anyone because he has been deported and was convicted of crimes in Australia. The Tribunal also did not accept that there was a real risk that the applicant would suffer significant harm at the hands of police, gangs, or authorities, or anyone else because he has been deported and was convicted of a crime in Australia.

26. The Tribunal then referred to the applicant’s claims in relation to having no support, no family, accommodation and a lack of education. 

27. The Tribunal identified that the applicant speaks Indonesian and English fluently. The Tribunal identified that despite his low education, the applicant has completed the Certificate III in Warehousing, in 2007, in Australia, and has also worked in several low-skill jobs in Australia, including as a storeman and a deliveryman for a furniture store. While the Tribunal was sympathetic to the applicant’s claims that he will return to Indonesia without a family and no property and having only finished his primary school, the Tribunal was not satisfied that the applicant will face a real chance of serious harm, including significant economic hardship, or denial of access to basic services, or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist. 

28. The Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, there is a real risk that he will be subject to any form of harm falling within ss 5(1)(a) to (e) of the Act. The Tribunal referred to having considered the applicant’s claims cumulatively and was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, there is a real risk that he will suffer significant harm. 

29. The Tribunal did not accept that the applicant will face difficulties for the essential and significant reason of race, religion, nationality, membership of a particular social group or political group. 

30. The Tribunal referred to the applicant having been a drug addict and his fear of again becoming a drug addict and facing homelessness.  The Tribunal referred to the submission about the applicant’s mental health, in that regard, deteriorating, and him not being able to afford the necessary medication and being vulnerable to relapse, as well as his bipolar disorder.

31. On the evidence before the Tribunal, the Tribunal did not accept that the difficulties the applicant claims he will face, resulting in him becoming a drug addict again, includes some systematic and discriminatory conduct by another person or persons and therefore does not meet the definition of persecution and the applicant, accordingly, does not meet the criteria in the Refugee Convention.

32. The Tribunal also took into account the nature of harm, identified in s 36(2A) of the Act and found it does not encompass self-harm. The Tribunal did not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, there is a real risk he will suffer significant harm as a former drug addict, who will again take drugs for the reasons claimed.

33. The Tribunal then referred to the applicant’s bipolar disorder and noted that there had been no independent evidence, submitted by the applicant, as to his mental health and the severity of the same.  The Tribunal was prepared to accept his claims that he suffers from bipolar disorder, based on his knowledge of the drug that he is taking.  That was identified as being a mood stabiliser and the Tribunal noted that the applicant claimed that it helps a lot with the bipolar disorder.  The Tribunal referred to the applicant’s claims that he fears, as a person with bipolar condition, people in Indonesia are kept in a room. Reference was also made by the applicant’s representative to the proposition that the applicant’s condition will deteriorate if he returned to Indonesia and he would not be able to obtain the necessary treatment and medication. 

34. The Tribunal referred to country information. The Tribunal found that the country information indicates the majority of hospitals and doctors are located where the applicant has lived in Indonesia. 

35. The Tribunal referred to having raised at the hearing that Indonesia has universal health which includes mental health care and mental health care professionals and medication. The Tribunal noted that as the medication is provided by the government of Indonesia, the Tribunal found the applicant will be able to afford it.  The Tribunal referred to the applicant not being from a rural community and did not accept that the applicant will be prevented from accessing mental health services, or being unable to afford it in Indonesia, due to his mental health condition, his race, religion or any of the reasons claimed. 

36. The Tribunal referred to the proposition the applicant would be prevented from obtaining access to services and did not accept that proposition. The Tribunal was not satisfied that the applicant would be denied access to medical treatment or to medication or be prevented from accessing such treatment in Indonesia for any of the reasons in s 5J(1)(a) of the Act, if he returns now or in the reasonably foreseeable future.

37. The Tribunal found that there is no real risk that the applicant would be subjected to any form of harm that is intentionally inflicted and meets the definitions identified. 

38. The Tribunal referred to country information and found that the applicant does not face a real chance of persecution, involving serious harm, if he returns to Indonesia in the reasonably foreseeable future on account of his mental health condition or being bipolar. 

39. The Tribunal found that the applicant did not meet the criteria in s 36(2A)(a) or s 36(2)(aa) of the Act and affirmed the decision under review.

Before the Court

1. These proceedings were originally fixed for hearing on 15 December 2020. The applicant’s representative had recently withdrawn and the Court granted the applicant an adjournment and made directions in relation to re-service of material upon the applicant. 

2. The applicant submitted that because of his mental condition, he has limited ability to concentrate. The applicant did put submissions that he had no relatives in Indonesia and no contacts and that he feared for his wellbeing, if he returned to Indonesia, from the authorities and from others.  The Court is satisfied that the applicant was able to meaningfully participate in the interlocutory hearing.

3. In substance the applicant invited the Court to determine the matter on compassionate grounds because of his mental health condition. The Court has no power to do so.

4. It is apparent that the Tribunal did take into account the applicant’s bipolar disorder and his mental condition as well as the want of relatives in Indonesia, but also took into account, in that regard, the number of occasions on which the applicant had returned to Indonesia. In those circumstances, the Tribunal’s decision cannot be said to lack an evident and intelligible justification. Further, the Tribunal’s reasons reflect a genuine intellectual engagement with the applicant’s claims and evidence. 

5. As sad as the applicant’s plight may be, this Court has no power to determine the matter on compassionate or discretionary grounds. The Court does, however, accept the applicant’s explanation for the delay in the commencement of the proceedings. The only real issue, as identified above, is whether there is a sufficiently arguable case at an impressionistic level to make necessary an extension of time in the interests of the administration of justice.

6. The applicant’s submissions in relation to his bipolar disorder, his relatives and his mental condition were all matters taken into account by the Tribunal and in respect of which the Tribunal made dispositive findings. 

7. Nothing said by the applicant identified any arguable case of relevant error by the Tribunal. The Court cannot determine the application on compassionate grounds or discretionary grounds and at an impressionistic level, nothing said by the applicant identified a proper basis upon which the Court could be satisfied that it is necessary in the interests of the administration of justice to extend time under s 477 of the Act.

8. The applicant has also provided written submissions. The written submissions expand on the applicant’s originating application, the ground of which is as follows:

   1.The AAT acted in a legally unreasonable manner in failing to request applicant's departmental medical file and thereby fell into jurisdictional error. 

9. In relation to the applicant’s written submissions and the ground in the application, the contention advanced is that the Tribunal should have exercised powers that it does have to obtain the applicant’s medical file in relation to his medical condition. There is no particular information that has been identified, that would be readily ascertainable from the medical file, which would be material to the determination of the applicant’s claims and evidence so as to give rise to an argument of legal unreasonableness in failing to exercise the power to obtain information.

10. More significantly, the applicant was accepted as having had a drug addiction and at risk of becoming, again, an addict. As well, the Tribunal accepted that the applicant had a bipolar disorder. There is no sufficiently arguable error because of the alleged failed to obtain the whole of the medical file.

11. Further under s 5AAA of the Act, it is for the applicant to provide sufficient evidence to establish his claims. Further, the applicant was represented before the Tribunal. 

12. In these circumstances, there is an evident and intelligible justification as to why the Tribunal did not exercise any power to obtain the applicant’s medical file. 

13. No arguable case for relevant error, at an impressionistic level, is disclosed by ground 1 or by the applicant’s written submissions. 

14. The Court is not satisfied that there is a sufficiently arguable case at an impressionistic level to make necessary in the interests of the administration of justice an extension of time, under s 477 of the Act.

15. Accordingly, the application for an extension of time under s 477 of the Act is dismissed. 

I certify that the preceding fifty-four (54) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 15 February 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 22 February 2021