DCQ16 v Minister for Immigration

[2017] FCCA 1409

FEDERAL CIRCUIT COURT OF AUSTRALIA

DCQ16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1409

Catchwords:
MIGRATION – Application for judicial review – protection application – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.425.

Cases cited:

Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553

Applicant S296 of 2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 1166
Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575
Minister for Immigration and Citizenship v SZNCR [2011] FCA 369

Applicant: DCQ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2281 of 2016

Judgment of: Judge Riethmuller

Hearing date: 13 April 2017

Date of Last Submission: 13 April 2017

Delivered at: Melbourne

Delivered on: 23 June 2017

REPRESENTATION

Counsel for the Applicant: Ms Leoncio

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the First Respondent: Mr Yuile

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2281 of 2016

DCQ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

DRAFT REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 21 September 2016, which affirmed a decision of the delegate to refuse to grant the applicant a protection visa. 

2. The applicant is a citizen of Nepal who arrived in Australia on 22 May 2009 as the holder of a Student (Subclass 572) visa, which expired in 2011.  His subsequent student visa application was refused.  The applicant then held a bridging visa until it ceased in September 2013 and he became an unlawful non-citizen.  On 22 December 2014, the applicant was granted a further bridging visa to enable a regular departure, however he did not depart and on 24 December 2014 he became an unlawful non-citizen again.  On 17 January 2016, he was detained by the South Australian Police and he has remained in immigration detention since that time.

3. On 8 February 2016, the applicant applied for a protection visa, stating in his visa application:

   I will be pursued by the criminal gangs.  The threats is based on my religious faith. … violence and persecution…. Because the authority are corrupt. … There are no safe places. … Torture/death. … Corrupt government backed by corrupt officials and criminal gangs.

4. On 24 February 2016, the applicant was interviewed by an officer from the Department.  The Tribunal decision summarises the information given by the applicant in that interview as follows:

   13. … In that interview he claimed that in 2010 he posted a religious verse from the Bhagavad Gita on his Facebook page.  After this his life began to change.  People speaking Arabic began to follow him.  His 4 housemates moved out.  Muslim taxi drivers kept stopping to ask him if he wanted a lift.  He felt so threatened in Sydney he moved to Melbourne and then to Ballarat.  He was helped in Ballarat by people from a Christian church and he himself was baptised.  He moved to Adelaide in 2015.  He stayed at the beach and meditated.  He had no trouble or threats of harm in Nepal before coming to Australia, but because of his Facebook post he fears members of the GP group in Nepal will harm him.  This group are involved in criminal activities.

5. On 27 February 2016, the applicant was assessed by a psychiatrist who concluded, on a preliminary assessment that the applicant presented with “paranoid psychosis with prolonged duration, untreated.”  The psychiatrist also made note of the applicant being “markedly and intensely preoccupied with persecution of a group called “GP””.  The psychiatrist recommended medication, and possibly hospitalisation if the applicant was non-compliant.

6. In March 2016, the applicant was assisted by a migration agent.  On 17 April 2016, the agent wrote to the Department advising them that the “GP group” was a Nepalese hip hop group called “Girish Pranil”.  The agent also informed the Department that the applicant “does not consider that there is anything wrong with him mentally or physically and is very against any treatment.”  The agent requested that the Department wait for the outcome of the South Australian Civil and Administrative Tribunal (SACAT) hearing in relation to a Community Treatment Order for the applicant, and for her to then provide further submissions in relation to harm that may be faced by a person with mental health problems in Nepal and lack of psychiatric treatment in Nepal. 

7. On 6 May 2016, the SACAT decided in favour of the applicant and the Community Treatment Order was not put in place.  On 18 May 2016, the applicant’s migration agent wrote to the Department stating, “Given the SACAT outcome I do not think there is anything further we can add in relation to this client’s application.”

8. On 11 July 2016, the delegate refused to grant the applicant a protection visa, stating in the decision:

   While I accept that Nepalese hip hop group GP has produced rap songs about social problems and drugs, I have been unable to locate any country information to suggest that GP has been involved with murders, drugs or other criminal activities.  Having considered the applicant’s claims and the available country information, I am not satisfied that there is a real chance he will be persecuted by the Nepalese hip hop group GP in the foreseeable future.

   …

   For the reasons discussed above, I find that the applicant’s subjective fear of harm from ‘Muslim members of Nepalese hip hop group GP’ is not objectively supported by country information.’

9. On 19 July 2016, the applicant applied to the Tribunal for review of the delegate’s decision.   On 30 August 2016, the applicant appeared before the Tribunal with the assistance of Mr David Mac Phail of the Asylum Seeker Resource Centre who was permitted to give evidence and make submissions on behalf of the applicant “given the applicant could properly be regarded as a vulnerable person” (see Tribunal decision para. 22).   At the hearing, Mr Mac Phail requested the Tribunal not to make a decision on the protection visa application until the applicant could access medical treatment.  The Tribunal recounts:

   28. ... [Mr Mac Phail] said the applicant’s mental health issues have contributed to him overstaying and failing to comply with the conditions for his student visa.  He said the applicant was not mentally well enough to understand the process of the Protection visa application.  He asked that the applicant undergo a mental health assessment and be given appropriate treatment before the review process continued.  The Tribunal indicated its concerns about this submission.  That is, the applicant had recently been medically assessed and offered treatment.  However the applicant had refused treatment and had successfully resisted a treatment order in the SACAT proceedings.

10. As the Tribunal records, despite Mr Mac Phail’s request:

    30.  The applicant emphasised at the hearing that he does not accept that he needs treatment, and complained about the medication he was told to take in detention.  It is his belief that the only ‘treatment’ he needs is to spend time meditating.

11. The Tribunal indicated that it would give Mr Mac Phail and the applicant two weeks within which to provide further submissions or evidence.

12. On 1 September 2016, Mr Mac Phail provided a written statement to the Tribunal and on 13 September 2016, he provided a further written statement and a medical report dated 16 March 2016 which recorded an assessment of “acute psychotic episode – likely schizophrenia, complicated by prolonged duration of untreated illness, and recent non compliance with prescribed medications.”  In his statement of 13 September 2016, Mr Mac Phail requested a further two week adjournment.

13. On 21 September 2016, 21 days after the Tribunal hearing, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa. 

Tribunal’s Findings

1. The Tribunal found that the applicant’s belief that the GP group were targeting him in Australia was delusional and it did not accept that the GP group would target him if he returned to Nepal, stating:

   39.  The Tribunal has considered the claims put forward by the applicant about what he claims has happened to him in Australia since 2010.  The Tribunal does not accept that because the applicant put a religious verse on his Facebook page that the GP group and/or persons associated with it, have begun following, harassing and generally targeting him for harm in Australia.  The Tribunal does not accept he has been targeted by the GP group or others associated with it, whilst in Australia.  It follows the Tribunal does not accept he will be targeted by the GP group and persons associated with it, should he return to Nepal. 

2. The Tribunal also found that the applicant would not be targeted because of his religion in Nepal, stating:

   42. The Tribunal notes that the applicant’s current religious practices include putting material on Facebook and practising meditation.  There is nothing in the country information to indicate he could not continue these practices in Nepal, or that such practices would open him to a real chance of persecution.  The Tribunal finds the applicant does not have a well-founded fear of harm for reason of his religious beliefs or practices, if he returns to Nepal now or in the reasonably foreseeable future.

3. The Tribunal also considered a claim, as suggested by the applicant’s migration agent and Mr Mac Phail, although not fully articulated, that the applicant would suffer persecution in Nepal because of his mental illness.  The Tribunal rejected this claim and found that:

   44.  There is no evidence the applicant has suffered harm in the past as a member of a particular social group (if such a group exists) of ‘persons in Nepal with a mental illness’.  The applicant has consistently claimed his problems only began in Australia in 2010.  Given his vulnerability this evidence may not be reliable, but there was also no evidence or suggestion from Mr Mac Phail that the applicant experienced serious harm in Nepal.  The Tribunal notes from Mr Mac Phail has been in contact with the applicant’s family, and the Tribunal considers that were there a history of persecution in Nepal this would have been disclosed to Mr Mac Phail.

   45. The Tribunal has also consulted the DFAT Country Information Report Nepal and the US Department of State Country Report on Human Rights Practices Nepal (2015), and found no information on the mistreatment or targeting for harm of people suffering a mental illness.  Mr Mac Phail has stated the applicant will not get the level of health care in Nepal that he may get in Australia.  There is no information before the Tribunal to indicate health care would be withheld from the applicant for any of the reasons set out in s.5J.  The Tribunal notes basic health care is available to all in Nepal (DFAT Country Information Report at 2.15) and mental health services are available in larger cities in Nepal (US Department of State Country Report on Human Rights Practices p.36).  The Tribunal also notes the applicant has family in Nepal who could assist him.  In any event, although health care may be better in Australia than Nepal, the applicant refuses to engage with treatment.

4. The Tribunal gave the following reasons for refusing Mr Mac Phail’s request to delay its decision for the applicant to access medical treatment:

   33.  The difficulty with Mr Mac Phail’s submission is that the applicant has consistently refused treatment, and a recent attempt to force him to undergo treatment was unsuccessful.  The applicant has been unwell for a long time, and according to Mr Mac Phail his family have told him the applicant has been mentally unwell since childhood.  The medical reports indicate the condition is long standing and the delusions are entrenched.

   …

   36.  The Tribunal considers the obligation to complete a review without undue delay should be adhered to in this case.  The Tribunal is not prepared to delay a decision indefinitely when there is no evidence the applicant will accept treatment and there is no objective basis to his claims.”

5. Ultimately, the Tribunal affirmed the decision not to grant the applicant a protection visa.

6. On 22 September 2016 (the day after its decision), the Tribunal received a letter written by the applicant dated 20 September 2016, which relevantly stated:

   Two psychiatrists have diagnosed me with a mental illness.  Until now I have been reluctant to take treatment.  I have reconsidered and would like a mental health assessment.  If I’m found to be mentally unwell I would like to be provided with treatment.

7. This letter was received by the Tribunal the day after it made its decision and therefore it was not before the Tribunal when it made its decision.  At the time that the Tribunal made its decision (which was already 21 days after the hearing date to allow Mr Mac Phail and the applicant to produce further statements and evidence), everything that the applicant had said suggested that he would not be amenable to seeking further medical treatment.

8. The Tribunal responded to the applicant later that day, stating it had considered the applicant’s submission however had decided not to reopen the case on the basis that the Tribunal had no power to take any further action on the review once a decision had been made.

9. On 20 October 2016, the applicant applied for judicial review of the Tribunal’s decision.

The Grounds for this Application

1. The applicant’s grounds for review, as stated in his amended application, are as follows:

   1. The Tribunal erred by depriving the Applicant of a meaningful opportunity to attend a hearing as required by s 425(1) of the Migration Act 1958 (Cth). In particular, the Tribunal proceeded in circumstances where the Applicant had recently been diagnosed with paranoid psychosis and schizophrenia.

   2.  In the alternative, the Tribunal erred by denying the Applicant procedural fairness by proceeding in circumstances where the Applicant had recently been diagnosed with paranoid psychosis and schizophrenia.

2. Section 425(1) of the Migration Act 1958 states:

   The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

3. The Court in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 (“SCAR”) explained the statutory obligation under s.425 of the Act, as follows:

   [33] Pursuant to s 425 of the Act the Tribunal is under a statutory obligation to issue an invitation to an applicant to attend a hearing. That indicates a legislative intention that an applicant is to have an opportunity to attend an oral hearing for the purpose of giving evidence and presenting argument. The invitation must not be a hollow shell or an empty gesture: Mazhar v Minister for Immigration and Multicultural Affairs (2000) 64 ALD 395 at [31].

4. The Court in SCAR acknowledged that “s.425 of the Act is a precondition to the valid exercise of the Tribunal’s jurisdiction” and that “failure of the Tribunal to comply with the requirements of s.425 of the Act involves a “jurisdictional error”.”  However, in Applicant S296 of 2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 1166 (“Applicant S296”), Gyles J considered that a refusal to grant a further adjournment for an applicant suffering fluctuating psychiatric illness amounted to a breach of the rules of natural justice or procedural fairness, and not a breach of s.425 of the Act.

5. In essence, the applicant’s amended application raises one main issue: whether the Tribunal erred by hearing and deciding the applicant’s case in circumstances where the applicant suffered from mental illness.

Evidence and Arguments

1. The question arises as to how severe the mental illness or impairment needs to be to render an applicant incapable of receiving a meaningful hearing.  In this case, neither of the psychiatrists who assessed the applicant were of the view that his mental state was so debilitating that he required hospitalisation.  Further, the SACAT also refused to make a Community Treatment Order, allowing him to maintain the right of self-determination.  The applicant has also instructed his migration agent and now solicitor throughout these proceedings, so presumably is coherent enough to give instructions.  No application for a litigation guardian has been made.

2. In Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575, Keane CJ considered that an applicant will be deprived of a “meaningful opportunity” as required by s.425 where an applicant’s condition is shown to be such as to “deny him the capacity to give an account of his experiences, to present argument in support of his claims, to understand and to respond to questions put to him” (at [20]).  His Honour continued, stating:

   [22]  In those cases where the applicant is not disabled by his psychological deficits from giving evidence and presenting arguments, the hearing required by s 425 of the Act is not nullified by a mere failure by an applicant to present his case in the best possible light. 

3. The applicant submits that the Tribunal failed to comply with s.425(1) because the Tribunal deprived the applicant of a “meaningful opportunity” to attend a hearing as the applicant was suffering from a psychological illness which had been diagnosed as paranoid psychosis and schizophrenia and was denied the opportunity to receive appropriate treatment before having a hearing.

4. Tracey J in Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 summarised the law saying:

   [30]  The argument focussed on what an applicant must prove in order successfully to establish a contravention of s.425 of the Act.  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 any 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.

5. The applicant points to the following paragraphs in the Tribunal’s decision about the applicant’s state of mind and his ability to participate in the review process, to demonstrate an apparent acknowledgement by the Tribunal of the applicant’s impairment to give evidence and present arguments:

   22.  The applicant brought two people to the hearing with him as support persons: David Mac Phail and Joan Edgar.  The Tribunal allowed Mr David Mac Phail to give evidence and make submissions on behalf of the applicant, given the applicant could properly be regarded as a vulnerable person.

   23.  The Tribunal has considered whether the applicant was competent to appear at the hearing.  He was able to answer questions and act appropriately in a hearing setting.  The applicant stated he was well enough to attend.  The applicant appeared to have capacity to attend, if capacity is measured in terms of a person’s ability to understand why they were at a hearing, what visa they have applied for, and to understand and respond to questions.  The applicant understood and responded to the questions put to him, although he had a tendency to ramble.  The content of his responses was at times more consistent with delusions than object facts.

6. As the first respondent submits, the Tribunal correctly drew a distinction between the illness that the applicant suffered for the purpose of his ability to participate and engage in the hearing and the illness that informed the aspects of his claim.  The Tribunal found that the applicant’s illness was not such as to deprive the applicant of a “meaningful hearing” in the sense of being able to engage with what the Tribunal was asking, to explain his claims, and to present argument to a certain level; and that this finding did not prevent the Tribunal from also finding that the content of some of the applicant’s claims was consistent with delusions. 

1. The first respondent submits that the applicant was able to coherently explain his claim and also pointed to comments by Dr Lin psychiatrist in his report dated 16 March 2016 which say that the applicant “has been functioning well” and his “cognition grossly intact” despite having impaired insight and judgement.  The applicant was able to articulate his claims clearly enough for the Tribunal to assess those claims.  The Tribunal objectively assessed what the applicant subjectively believed.

2. There is nothing before this Court that shows the applicant has any further grounds or bases for his protection visa application beyond the matters considered by the Tribunal.  In this sense his mental state did not prevent his claim being articulated to the Tribunal.  The Tribunal ultimately found that the applicant’s claims were not objectively supportable, based on the inherent implausibility of the claims and a review of the country information, rather than being based on the applicant’s credibility.  The Tribunal found:

   24.  Given his vulnerability, the Tribunal has not made any adverse findings on the credibility of the applicant’s evidence.  However the issue in this case is not the applicant’s credibility, but whether he has made any claims for protection that have an objective basis.

   …

   38.  The Tribunal relies on the inherent implausibility of the claims and the medical reports on the Department’s file and those provided by Mr Mac Phail, to find the applicant’s belief that the GP group are targeting him is delusional.

3. Having found that the Tribunal provided the applicant with a meaningful opportunity to present his case, a secondary issue unfolds: that is, was his mental conduct such to require an adjournment before he gave evidence to receive medical treatment.  The applicant has consistently been against receiving treatment and there is no certainty that he will get better in the reasonably foreseeable future.  The relevant authorities determined that he should not be forced to receive treatment.  I see no error in the Tribunal continuing to hear the evidence and do the best it could on the material before it.  One must remember that cases cannot be suspended indefinitely if someone is unwell, rather it is for the Tribunal to determine if an adjournment is reasonably required to allow for an improvement in health.  This requires consideration of the nature of the impairment, the prognosis (both in terms of likely improvement and timeframe), the impact on the evidence and the importance of the proceedings.  Thus, in Applicant S296 the applicant succeeded as the Tribunal failed to properly consider these matters.  However, the facts in Applicant S296 are quite different. 

4. The Tribunal considered the evidence in this case and provided considerable leeway and reasonable time to allow the applicant to address his mental health.  I am not persuaded that the Tribunal failed to have regard to a relevant factor or consideration in this respect.  The decision was within the bounds of the Tribunal’s discretion and certainly open to a reasonable decision maker.

5. As a result I am not persuaded that the applicant has established a ground for judicial review of the decision.  I therefore dismiss the application, with costs.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 23 June 2017