Dci19 v Minister for Immigration

[2020] FCCA 734

FEDERAL CIRCUIT COURT OF AUSTRALIA

DCI19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 734

Catchwords:

MIGRATION – Protection Visa – whether Administrative Appeal Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeal Tribunal’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36, Part.7

Applicant: DCI19

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 311 of 2019

Judgment of: Judge Vasta

Hearing date: 13 February 2020

Date of Last Submission: 13 February 2020

Delivered at: Perth

Delivered on: 13 February 2020

REPRESENTATION

Applicant in person

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. That the Applicant’s oral application for an adjournment of these proceedings is refused.

2. That the Application filed 13 August 2019 is dismissed.

3. That the Applicant pay the costs of the First Respondent fixed in the sum of $4,000.

IT IS NOTED:

(A)That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged and the Court has received a request in writing from either party seeking that written reasons be produced.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 311 of 2019

DCI19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 18 July 2019, the Administrative Appeals Tribunal (“the AAT”) made an oral decision to affirm a decision of the Delegate of the Minister not to give the Applicant, DCI19, a Protection Visa.  On 9 August 2019, that oral decision was delivered in written form to the Applicant.  On 13 August 2019, the Applicant filed his application asking this Court to review that decision.

2. The background to this is that the Applicant arrived in Australia on 9 March 2009 on a Student Visa.  This was a Student TU 573 visa, a visa for the higher education studies.  On 27 May 2010, the Applicant’s enrolment was cancelled because he was not attending classes and he had overdue tuition fees. 

3. The Applicant was issued with a non-compliance notice on 24 June 2010.  He makes a claim that he never received this notice. 

4. On 15 August 2010, the visa ceased.  At that point, the Applicant became an unlawful non-citizen.  It would seem that the Applicant had no contact with the Department or any other authority from 24 June 2010. 

5. On 22 March 2018, the Applicant was located by Australian Border Force and he was detained and transferred into administrative detention.  On 6 April 2019, some 13 months later, the Applicant lodged an application for a Protection Visa.  That application was refused on 6 May 2019 and the Applicant then applied to the AAT.

6. The Applicant is a citizen of India.  He has made the following claims.  Since he has been in Australia, he says that he has realised that Christianity is a religion of peace and he started to follow it.  He claimed that his family, who are devout Hindu followers, would not permit him to change his religion and that he would be killed by them.  He claimed that he feared for his daughter’s life if he were forcibly removed from Australia because of his religious conversion.

7. He claimed that he had not experienced any harm in India, but he had not been back to India since his arrival in Australia in 2009.  He claimed that if he returned to India he would face strong persecution or be killed because of his religious belief and, in particular, that his family would condemn his religious conversion. 

8. He said that he would be killed and harmed by religious organisations, his family and society, who do not accept that he is a Christian because 90 per cent of India’s population is Hindu.  He claimed that he could not relocate in India because of his acute depression and anxiety, and it would be therefore mentally hard for him to cope. He claims he could not relocate to Nepal because it would be easy for his family to find him. 

9. The Applicant attended three hearings before the AAT.  The first hearing was on 17 June 2019, the second was on 9 July 2019 and the final hearing was on 18 July 2019. It was at this last hearing that the AAT delivered oral reasons at the completion of that hearing. 

10. At the first hearing, the AAT asked the Applicant about his claims relating to the safety of his daughter, and he confirmed that his daughter is an Australian citizen and that the mother of the child is an Australian citizen and she, the daughter, did not face return to India.  The claim that the daughter would be harmed if he were returned therefore had no credibility.  Soon after that was conveyed to the Applicant, the AAT adjourned the hearing so that the Applicant could get more information about his mental health status. 

11. At the second hearing, there was a large bundle of documents which seemed to be a printout of his mental health history.  Relevantly, the summary of those documents revealed this notation, that the Applicant had:

    malingering of mental health symptoms in order to get increased sedative medication, mixed borderline dependence personality traits, unhappy with your situation but not depressed, fit to fly, does not want to return to India. And there has been some reference to previous diagnoses with pseudo hallucinations. 

12. The medical professionals described his symptomology as being “vaguely expressed and not convincing”. 

13. The AAT concluded that the Applicant had experienced some anxiety, and this was amenable to pharmacological and cognitive behavioural therapy interventions but that there was no reason to believe that if the Applicant were returned to India, that he would be unlikely to be compliant with medical treatment.  For that reason, the AAT found that there was nothing in that medical evidence to support any assertion that the Applicant would be at risk of serious harm if he we were returned to India because of his mental health condition. 

14. In the final hearing, the Applicant said that he had received death threats from his family on account of his daughter being illegitimate and that he was not married to the mother.  The AAT noted that this was the first time that the Applicant had expressed this.  It was not expressed in his application, nor expressed when he was interviewed by the Delegate, nor expressed in his statement to the AAT, nor at the first or second hearing. 

15. The AAT pointed out that it was open for it to draw an adverse inference about the credibility of those claims given that they were made so late.  The AAT did make that finding and came to the view that they did not believe that such a claim was genuinely made.

16. The AAT then turned to the aspect of the Applicant’s alleged Christianity.  The AAT accepted that the Applicant had engaged with the Christian faith whilst living in Australia but characterised that engagement as nominal and relatively discrete.  The AAT acknowledged that in the past the Applicant appeared to have been a reasonably regular churchgoer, and the relationship to which this child was born was with a woman who professes the Christian faith.  For those reasons, the AAT described the Christianity as nominal Christian adherence. 

17. The AAT noted that there was no credible evidence provided to the AAT that this interest in and engagement, albeit on a nominal basis, had been the basis of any threats against the Applicant or would give rise to a genuine and well-founded fear of persecution in India for the essential and significant reason of being a nominal Christian. 

18. The AAT had regard to the DFAT information.  That information is that Christians who have engaged in proselytising or were perceived to be doing so, particularly the Hindus, face a moderate risk of official and societal discrimination and a moderate risk of societal violence.  There was nothing in the evidence that suggested that the Applicant would be engaging in such behaviour, and he certainly had done nothing of the sort whilst in Australia.  Therefore, keeping to the level of Christianity that the Applicant had practised in Australia, there would be no societal discrimination or persecution if he were removed to India.

19. The Applicant spoke of his familial rejection.  The AAT noted that such treatment could not be regarded as persecution within the meaning of that word because it was a purely private matter.  The AAT referred to Federal Court authority as to what amounted to persecution.  The AAT said clearly a family’s private reasons, in a purely private matter, may well relate to one or more of the convention grounds.  The point is that familial rejection for any reason is not the kind of detriment against which the state can be expected to provide protection.

20. The AAT noted that the Applicant had said that he had family everywhere in India and that they would be able to find him no matter where, and in order to be safe, he would have to disappear.  The AAT found that those statements lacked credibility given the geographic size of India, the demographic diversity of their country, the resourcefulness that the Applicant had shown in living away from his family in India for over 10 years, and his stated belief that his family in that country disapproved of his current religious and relational status. 

21. The AAT said that it was not credible that the Applicant would put himself in harm’s way by involving himself with his family in such circumstances if he genuinely apprehended harm from those persons.  The AAT said that they did not accept, based on the vague and illogical evidence that had been provided to them, that the Applicant would be required to be invisible if he returned to India. 

22. Having regard to all of those claims, both individually and cumulatively, the AAT found that the harm that he claimed to fear if returned to India did not rise to the level of serious harm for the purposes of s.36(2)(a) or (aa) of the Migration Act 1958 (Cth) (“the Act”).

23. The AAT also separately considered the delay that had been exhibited in the application.  As I have previously recounted, the Applicant did not have contact with the Department for well over eight years and was an unlawful citizen for seven of those years; and, even once put in detention, waited some 13 months before making such a claim. 

24. The AAT noted that it would have been reasonable for a person in the Applicant’s circumstances, if he genuinely had these concerns, to approach the relevant authorities for assistance when his enrolment was cancelled in May of 2010 for non-payment of tuition fees, or after the non-compliance notice had been issued, or at any other time after that.  Certainly, after his visa had ceased he had full knowledge of his religious belief, his relationship status and his unlawful status in Australia, yet chose not to engage with any of the authorities.

25. At the third hearing, the AAT asked the Applicant if he had ever considered approaching an agent, a lawyer, the Department, travel agent, doing online research, his university, or even talking to a priest.  In each case the Applicant said he had not.  When asked why he did not do these things, the Applicant said that he was unsure of the process.  The AAT found that that response lacked credibility.  The Applicant did not respond to that notation of the AAT.

26. The AAT noted that a decision-maker was entitled to consider whether an Applicant had a subjective well-founded fear of persecution before considering whether such a fear was objectively held, and in this case the AAT considered that the lengthy failure to regularise his migration status supported a conclusion that the Applicant subjectively did not have the necessary fear of persecution and that he remained in Australia for his own purposes. 

27. The AAT considered the Applicant’s claims that he had family everywhere in India, and that he would be safe nowhere and found that those were unsubstantiated and not credibly made.  The AAT said that, on the evidence before them, they found there was no credible evidence to indicate that he would face any adverse interest from agents of harm, including the state or other persons in India.

28. The AAT noted that the Applicant and the mother of his daughter were separated from each other, but the relationship was reasonably amicable and the Applicant still had contact with his daughter.  The AAT noted that, as an Australian citizen, there was no reason to believe that the daughter would be unable to visit the Applicant in India if that is where he resided for the foreseeable future. 

29. The AAT found that, beyond the normal familiar desire to maintain regular contact, there was no particular aggravating circumstances that would cause such distress to rise to the level of significant harm, for the purposes of the Act, if he were returned to India.

30. For those reasons, the AAT found that the Applicant did not satisfy any of the criteria for being a refugee or the complementary protection assessment and therefore affirmed the decision not to grant the Applicant a protection visa.

31. The grounds of this application, when filed by the Applicant, contain a series of un-particularised statements.  I will read them into the record: 

    1.  The application should be considered according to the law.

    2. The decision of the AAT made on 18th July 2019 should be quashed.

    3.  The Second respondent decision included the error of the law.

    4. The Second Respondent took in account irrelevant considerations.

    5.  The Second Respondent decision was unreasonable.

    6. The decision of the respondent failed meets the refugee law when making the decision.

    7. I believe the tribunal made an error in coming to its decision due to my inability to prepare and present a proper case and therefore a meaningful opportunity to be heard by denying me procedural fairness.

    8. The Second respondent also made an error by finding that I do not engage the protections afforded at s.36 (2) (a) of the act therefore misapplying and misconstrued the s.36(2) (a) and s.36(2)(aa).

    9. The Second respondent has not considered each of the integers of my claims of the serious harm discussed with respects to my claims for refugees protection in the context of the complementary protection criterion regarding the real of significant harm at s.36(2)(aa).

    10. The acknowledged difficulties of preparing and presenting my case I am from a different social, ethnic and cultural background and the difficulties I have with English language. Moreover, I believe the decision maker misinterpreted their obligations to consider representations I made to mitigate my offending behaviour as non-refoulement obligations.

    11.  There was insufficient evidence or no evidence to support various findings made by the respondent.

    12.  The respondent, in making its decision did not comply with the rule of natural justice and was denied procedural fairness.

    13.  The application should be remitted back to tribunal and reconsidered and reinstated.

    14.  The second respondent put more weight on irrelevant consideration and facts in dismissing my application without properly considering the facts which put more weight in my favour rather than on relevant facts.

    15.  The Second respondent decision was biased based on one sided consideration.

    16.  My relocation factor based upon my mental health was given less weight.

    17.  lf I was repatriated that I was the breach and violation of Article 3 of the CRC which states that the decision made by the public institutions should be taken with the best interest of the child in mind.

    18.  Article 17 and 23 of the ICCPR aim to protect the unity of the family unit which is a serious violation and breach upon reaching to decision of person being removed or sent back while making the decision separation of family and children were put zero weight consideration against others factors.

    19.  The decision maker did not asses the non re-foulement consideration in making its decision.

    20.  The decision is the breach of the article 12 of ICCPR.

32. The Applicant has appeared before me today unrepresented but assisted by an interpreter.  It is clear that the Applicant does understand English, but given that there are some complexities in the language, notwithstanding that the Applicant was here on a Student TU 573 visa, the Court felt that it was appropriate for him to have the services of an interpreter available to ensure that any subtleties or complexities were able to be interpreted to him, and that the full range of what it is that he wanted to convey to this Court could also be accommodated through the services of the interpreter.

33. I pointed out to the Applicant that his grounds had no particularity and it gave the Court no true indication of what he was saying was the actual error in which the AAT had engaged.  I asked the Applicant to tell me what error it was that he actually says that the AAT made.  He said to me that he was told by the AAT that what he was saying was irrelevant, and that he can go live there in India and have no safety risks. 

34. I then asked if there was anything more that he wanted to say to me about that aspect. He then said that someone helped him to compose those grounds, but that that person is not available and that the Applicant now wished to have an adjournment so that he could get a lawyer.

35. The Applicant conceded that he had not, to this point, tried to get a lawyer.  He had not spoken to a lawyer.  The only person he had spoken to was his roommate or the person with whom he is living, who has no qualifications whatsoever.  I asked him, apart from what he had already told me, what was it that he said was the mistake or error that the AAT had made. 

36. He conceded that he did not know and that was why he wanted a lawyer.  I put to him that he must have had some idea that there had been a mistake, otherwise he would not have filed the application in the first place.  The Applicant said to me that he felt there was an error but he just did not know what it was, and that is why he now needs a lawyer.

37. It seems to me that the term that was used in the recent review in the AAT; that Applicants were trying “to game the system”, applies here.  The Applicant inferentially has launched proceedings in this Court with absolutely no knowledge of what it is he is actually asking the Court, but simply as a device to stay in the country even longer. 

38. To then come to the Court after knowing that this date had been set for quite some months, and to ask for an adjournment on the grounds that he wished to get a lawyer when he had not even looked for a lawyer, and that the Court must entertain such a request, again illustrates some of the inefficiencies with the system. 

39. However, I am not here to review this system.  I am not here to even make comments on this system.  My task is one and one only - does the cause of justice necessitate that the Applicant have an adjournment today? 

40. The cause of justice is a balancing act often between the needs of the Applicant, but also the needs of this community.  In this case, the Applicant has no idea whether his application has merit or not.  He has not even attempted in all of these months to contact a lawyer about the merits of the matter, and he simply wishes the Court to adjourn the matter so that he could attempt to find a lawyer to attempt to see if there is actually any merit in his application. 

41. The Applicant had been in detention for quite some time.  He has had the reasons of the AAT since 9 August 2019.  He made this application on 13 August 2019.  He was released from detention in Perth, and is now in Melbourne.  He has given no proper explanation as to why he has not sought the assistance of a lawyer up until now. 

42. As I have said, the matter has been set for this day for some time, certainly from 18 September 2019 when Registrar Benter set the matter down for hearing.  The Applicant has known of this.  The Applicant even made inquiry as to whether the matter could be transferred to Melbourne and was told, by either my Chambers or the Registry, that the matter would be heard by video link, which it has been, so that the Court date would be kept. 

1. Notwithstanding all of that, the Applicant has not done anything to advance his case.  It seems to me, when balancing all of those matters up, that the adjournment should not be granted.

2. It then means that I must assess whether there has been a jurisdictional error shown.  I have been assisted by the submissions of the Minister, who has taken the un-particularised grounds and broadly put them into eight categories: 

   1. the Tribunal made an error of law (grounds 3, 6, 8);

   2. the Tribunal took into account irrelevant considerations (grounds 4, 14);

   3. the Tribunal failed to have proper regard to relevant considerations including the applicant’s mental health, art 3 of the Convention on the Rights of the Child (CRC) and arts 17 and 23 of the International Covenant on Civil and Political Rights (ICCPR) (grounds 16-20)

   4. the Tribunal’s decision was unreasonable (ground 5);

   5. the applicant was denied procedural fairness (grounds 7, 10, 12);

   6. the Tribunal failed to consider integers of the applicant’s claims (ground 9);

   7. there was insufficient evidence or no evidence to support certain findings made by the Tribunal (ground 11);  and

   8. the Tribunal was biased (ground 15).

3. When looking at these, as there is no particularity as to what error of law could be sustained, such grounds are then unsustainable without particularity.  I will not engage further with those grounds for that reason. 

4. The Applicant has not identified what matters the AAT was prohibited from taking into consideration.  It seems to me then that any ground that claims that the AAT took into account irrelevant considerations must fail.

5. As far as not having proper regard to the Convention on the Rights of the Child (“the CRC”) or on the International Covenant on Civil and Political Rights (“the ICCPR), there is no necessity for the AAT to have any regard to those, because they are not part of Australian migration law.  It may be preferable if those are looked at, but it is certainly not mandatory and it certainly does not denote any jurisdictional error.

6. As far as the Applicant saying that proper regard was not had to his mental health, as my recitation of the findings of the AAT shows, there was proper regard had to that.  The AAT made the finding that the Applicant would remain able to have access to medication in India. 

7. That any ground of the AAT’s decision was unreasonable also cannot be sustained.  It is clear on the evidence that was before the AAT that the findings that it made were open on that evidence.  That does not mean that I, or any other decision-maker, if in those shoes would definitely have drawn the same conclusion from those facts, but that is not the test.  The test is whether it were possible for the AAT to come to those conclusions on the evidence that was before them.  As it was open, the decision cannot be said to be unreasonable. 

8. The Applicant has claimed that he was denied procedural fairness. However, the exhaustive list of procedural fairness and natural justice is contained in Part 7 of the Act and has therefore been codified. There does not seem to be any breach of any of those rules. The Applicant had been given certainly sufficient time to be able to make his arguments. He was, after all, given three hearings to do so and at each hearing he was also assisted with an interpreter; again, notwithstanding that he had come here on a Student TU 573 visa and had been at large in the Australian community for some eight years before his detention. When one looks at all of those things, one can hardly say that the Applicant had been deprived of procedural fairness.

9. There is nothing in the material that shows that the Applicant was unable or told that he could not give evidence.  There is nothing that says he was stopped from presenting arguments or that he could not answer questions; certainly nothing that showed that his mental health affected any of his appearances before the AAT.  It is clear on my recitation as well, that the AAT considered all of the claims. 

10. As for the final ground that can be ascertained from what the Applicant has said, there is simply no material that could suggest that the AAT acted with bias.  The AAT has delivered a decision that the Applicant does not agree with.  That does not mean that the AAT was biased. 

11. That seems to be the only evidence that the Applicant puts forward to show that the AAT was biased; that being that the AAT did not make a finding with which the Applicant agrees.  Such could never be the basis for a finding of bias. 

12. All of those grounds fail.  None of those grounds illustrate any jurisdictional error. 

13. I therefore dismiss the application with costs in the sum of $4,000.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  1 April 2020