DEL16 v Minister for Immigration

[2017] FCCA 1062

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEL16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1062

Catchwords:
MIGRATION – Protection Visa – whether tribunal’s decision affected by jurisdictional error – where no error established in tribunal’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth): s.425

Cases cited:
ABV16 v Minister for immigration and Border Protection [2017] FCA 184

Applicant: DEL16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 992 of 2016

Judgment of: Judge Vasta

Hearing date: 15 May 2017

Date of Last Submission: 15 May 2017

Delivered at: Brisbane

Delivered on: 15 May 2017

REPRESENTATION

Counsel for the Applicant: Mr M. Black

Solicitors for the Applicant: Stolar Law

Counsel for the Respondents: Mr B. McGlade

Solicitors for the Respondents: Minter Ellisoin

ORDERS

1. That the application filed 25 October 2016 for leave to file the application out of time be granted

2. That the application filed 25 October 2016 be dismissed.

3. That the Applicant pay the costs of the First Respondent of and incidental to this proceeding fixed in the sum of $7,206.00 (inclusive of GST).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

No. BRG 992 of 2016

DEL 16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application filed in this court on 25 October 2016, the Applicant DEL16 seeks a review of a decision made by the Administrative Appeals Tribunal on 30 June 2016 that affirmed an earlier decision of a delegate for the Minister for Immigration and Border Protection not to grant a protection visa. 

2. As the application was filed on 25 October 2016, it was filed almost four months after the decision had been given. The rules state that such an application must be filed within 35 days and this application was filed some 82 days late. Therefore it is a matter for me to decide whether or not I ought to grant leave to extend the time for filing.

3. The principles in regards to the grant of leave are fairly well settled.  What I have to have cognisance of, and regard to, is the excuse as to why the matter was filed out of time. Secondly, as to whether there is any prejudice to the Respondent and, thirdly, whether there is an arguable question, to be heard and determined. 

4. In this case, there have been a number of excuses given as to, in effect, the poor advice that was originally proffered to the Applicant; that is, that she could either go to the Federal Circuit Court or she could ask for ministerial assistance.  There is no evidence that the Applicant herself decided to forego the Federal Circuit Court in order to proceed with the ministerial intervention and then when that failed, “Well, I better go to the Federal Circuit Court.”

5. That excuse seems to be only inferred by some evidence in an affidavit from Kylie Beth McGrath.  Even if that were to be the case, I would not find that that was a reasonable enough excuse. 

6. However, I have also had the benefit of some evidence that the Applicant has suffered with poor mental health to the point where she was hospitalised for some time in the Princess Alexandria Hospital.  She certainly was still hospitalised at the time that the time for filing would seem to have been running. 

7. Given what is contained in the exhibit which is annexed as KBM6 to Ms McGrath’s affidavit, I do find that there was obviously some mental health aspect to this Applicant’s thinking that would have, at the very least, impaired her capacity to reason with a degree of sense and composure as to what it is that she needed to do. 

8. There really has been no prejudice to the Respondent.

9. The third aspect is whether there is a question that can be reasonably argued and this aspect should really be the focus of this matter.  For the reasons I’m going to go through very soon, I am of the view that there is a question that could be, and should be, reasonably argued.

10. Without going into too much more detail about that, I am of the view that leave ought be granted and so therefore I do grant leave to file this application out of time.  I then turn to the substantive issues. 

11. There are two grounds of review. They have been helpfully set out by Mr Black in his submissions. The background to this matter can be summarised in short compass. The Applicant is a national of Papua New Guinea.  She made a claim that she had lived in an area in Papua New Guinea around an area called Mount Hagen.

12. She was the second of four wives to a polygamous husband and that husband had, in effect, not treated her well.  She said that she left the area in the latter part of last decade and went to Port Moresby.  She then came to Australia.  The reason that she came to Australia was that she had met another man on the internet and was coming to meet him on a visitor visa.  It seems that she came here in August 2009 from Port Moresby.  She claims that she had divorced her husband in 2008 and so therefore there was nothing of any untoward nature in talking to this man over the internet.

13. During her three-month stay in Australia, she was seriously injured in a motor vehicle accident.  In October 2009, she returned to Port Moresby.  It seems then, in 2010, her ex-husband suffered a stroke and was hospitalised. 

14. The Applicant claims that the remaining wives of the ex-husband came to some form of belief that she, the Applicant, had used sorcery to cause this stroke.  She said that on the two occasions that she visited the ex-husband in hospital, she was beaten by the wives. 

15. In 2010, the Applicant returned to Australia for additional medical treatment and to further her legal claim for compensation in connection with the motor vehicle accident.  In July 2011, she returned to Port Moresby and she remained there for slightly over a two-year period.  She returned to Australia in September 2013.

16. In October 2013, the ex-husband died of a stroke.  The Applicant says that the other three wives and their adult children and tribesmen from the Mount Hagen area all have come to the conclusion that the Applicant killed the ex-husband using sorcery.  Because of this, the Applicant fears that they would exact revenge on her and kill her if she returned to Papua New Guinea. 

17. The interview that the Applicant then had with the delegate after making her claim for protection saw that a number of her claims evolved.  She told the delegate that she had had numerous verbal and physical altercations with the other wives prior to her separating from the ex-husband as well, and that this enmity was something that was always present.

18. The Tribunal went through these claims and came to a decision that the Applicant was not someone whom they believed and did not accept that there was any well-founded fear of persecution resulting from her being a person accused of sorcery in Papua New Guinea. Nor were they satisfied that if she were to return to Papua New Guinea that she would suffer serious harm by any person connected to her ex-husband. 

19. The grounds of this application are that,

    “1. The Administrative Appeals Tribunal fell into jurisdictional error by refusing to exercise its power to adjourn the review under s 427(1)(b) of the Migration Act 1958 so as to enable the Applicant to provide a relevant psychological report…”

20. The Tribunal speaks of this issue at paragraphs 8 and 9 of its reasons. It should be noted that what did occur is that there were two hearings.  A hearing that occurred on 10 March 2016, the Tribunal noted that the Applicant became distressed and it was evident to the Tribunal it would be unable to discuss all of the relevant issues. 

21. A resumed hearing was held on 30 March 2016.  The Applicant had been represented by a migration agent.  There were written submissions given to the Tribunal prior to the first hearing, in between the hearings, and there were multiple submissions after the second hearing of 30 March.  The Tribunal agreed to three of the migration agent’s requests for additional time to provide post-hearing submissions and additional documents.

22. There was one preliminary post-hearing submission on 25 May 2016 and a final submission on 27 May 2016, which the migration agent requested the Tribunal read as replacing the submission of 25 May.  There was a psychological report as well that was given to the Tribunal.  The Tribunal said this at paragraph 8:

    “8. In the submission of 27 May 2016, the migration agent noted the applicant was seeking a supplementary psychological report, which would be finalised by 3 June 2016 and requested the Tribunal defer from making a decision until that report was available. On 8 June 2016, the migration agent advised the supplementary psychological report would only be available after 1 July 2016 and sought a further extension of time until then to provide that supplementary report. The Tribunal considered that request and decided it was reasonable in the circumstances not to allow the applicant the additional time.  No explanation was given for the delay in the report.  The migration agent submitted the Tribunal should not make a decision adverse to the applicant without that supplementary psychological report, however, the Tribunal already has the benefit of a psychological report provided with the submission of 25 May 2016.  Furthermore, the Tribunal had already agreed to multiple requests for additional time since the second hearing.

    9. On 10 June 2016, the migration agent made a further submission the Tribunal should await the supplementary psychological report. Attached to that submission was an email from the applicant’s psychologist setting out personal reasons of the psychologist why the supplementary psychological report would be unavailable before 1 July 2016.  The Tribunal notes that the email sets out the scope of the supplementary report is to proffer reasons the applicant’s current psychological state explains why the applicant delayed until after the second hearing to raise new claims she was the victim of a sexual assault. The Tribunal nonetheless still considers it reasonable to proceed to make a decision on the basis of the evidence currently before it.  That is because the evidence before the Tribunal includes evidence of the applicant’s current psychological state and the effect that may have had on her discussing past traumatic events; a statutory declaration of the applicant setting out the applicant’s reasons for the delay in raising those claims, and the lengthy submissions of the migration agent addressing the applicant’s delay in the applicant raising those new claims.”

23. In very helpful submissions, the Counsel for the Applicant, Mr Black, has summarised the argument.  He has said that it was unreasonable for the Tribunal not to have granted such a delay, given that there had already been quite a number of delays. It was almost a full year from the filing of the application for a review; that was 12 March 2015, until the Tribunal commenced hearing the application on 10 March 2016. 

24. The psychological report was going to specifically address the issue of the Applicant’s late disclosure of the assault and when one considers then that the Tribunal made their decision on 30 June 2016, which was one day before the psychological report was going to be available, it would show that that really was unreasonable.

25. I was invited by Mr McGlade, Counsel for the Respondent, to actually go to the application that was made by the migration agent which is found at page 257 and 258 of the court book.  The migration agent made this submission at paragraph 59:

    “It is our submission that her evidence in this respect should be accepted as credible. The difficulties of providing disclosure of rape are well accepted. The enclosed psychological evidence confirms that the Tribunal that traumatised asylum seekers, such as our client, require time to establish a sufficient level of trust before being able to reveal painful and shaming details of their experiences. Further, empirical evidence has documented that more than one-third of rape victims do not disclose their experiences until at least one year after these have occurred.  Feelings of shame and the impact of trauma are recognised as key barriers to the disclosure of rape and other forms of gender based violence within an asylum claim. We have requested that the Change Futures Psychology address this point specifically in a supplementary report. If the Tribunal is unable to make a positive decision in relation to this application without such expert evidence, we ask that the Tribunal not make a decision until we have been able to provide such a report…”

26. When one then looks at what the Tribunal said about this aspect, it is clear that the claims that were made in paragraph 59 seem to have been accepted by the Tribunal. The Tribunal, in paragraph 36, spoke of the psychological report that the Tribunal already had. Then, at paragraph 61, the Tribunal says this:

    “The Tribunal accepts in the case of someone who genuinely experienced a sexual assault of the nature claimed by the applicant, there would be a very strong reluctance to discuss such a traumatic experience for cultural and emotional reasons. That would be even more so in the case of someone who has a PTSD, GAD and MDD. To that extent, the Tribunal accepts the opinion of the psychologists and the submissions of the migration agent.”

27. To my mind, this paragraph shows that the Tribunal did accept everything that the migration agent was saying at paragraph 59 of their submissions.  The provision of a psychological report was only for the supporting or bolstering of that proposition that had been made. 

28. The fact that the Tribunal has accepted what was going to be contained in that report, in my view, shows that it was not unreasonable to not give a further adjournment.

29. Again, it’s a matter where I only have to be convinced that such a decision was open to the Tribunal for there to be a finding that there was no jurisdictional error.  On all of that evidence, I am satisfied that there was no jurisdictional error. 

30. The second ground is a far more difficult proposition.  That ground is:

    “6.That the Tribunal fell into jurisdictional error by not inviting the Applicant to a further hearing pursuant to s 425(1) of the Migration Act 1958 in respect of one or more of the following issues.

    6.1Whether the Applicant was sexually assaulted by two men in Port Moresby sometime in 2012.

    6.2 Whether the Applicant was stabbed during the sexual assault in 2012 or, alternatively, was stabbed with a knife by one of her ex-husband’s other wives at an earlier point in time.

    6.3 Whether the Applicant disclosed to her treating psychologists her claim to have been sexually assaulted in 2012.

    6.4 Whether the Applicant’s claim to have been sexually assaulted in 2012 was fabricated.

    6.5 Whether the Applicant had a pattern of raising new claims and, if so, how that affected her credibility.”

31. Again very helpfully, Mr Black has summarised these matters in his submissions. Section 425(1) of the Act provides this:

    “425 Tribunal must invite applicant to appear

    (1) 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.”

32. The question here is whether this matter (of the sexual assault and stabbing) was an issue that had arisen in relation to the decision under review. 

33. The chronology would show that after the hearing on 30 March, the Tribunal had, in effect, expressed a view that one had to look very carefully at the issue of credibility with regard to the Applicant. 

34. It had pointed out that notwithstanding that the Applicant claims that she was truly worried about how the other wives and tribesman, had been treating her, she did not make a claim for protection on those occasions she was in Australia in2009 and 2010.  Instead she quite willingly returned to Papua New Guinea. The Tribunal questioned why that would be so if the threats of harm had already occurred.

35. Then, the Tribunal noted that the Applicant stayed in Port Moresby for over two years and there did not seem to be any harm that had befallen her whilst she was there.  It is only after she came to Australia for a third time in September 2013, that that she made the claim for protection.

36. In my view, that was an issue that was well and truly before the Tribunal at the time of the adjournment of the hearing on 30 March 2016. Such a matter really went to whether either the Convention criterion or the protection criterion was enlivened. 

37. After that adjournment, as has been noted earlier, the Applicant gave another statutory declaration.  In that statutory declaration, the Applicant spoke of the sexual assault that occurred to her in 2012.  She spoke of being caught in bushes by two men who wore masks who spoke in some form of dialect or accent that made her believe that they were tribesmen of the same tribe as her ex-husband.

38. She said that she was stabbed by these men and that she has a scar from such a stabbing.  Such a matter had not been raised beforehand.  The contention of Mr Black is that this creates a new issue.  Because this is an issue, therefore, it is a matter that needs to be spoken of at a hearing and, in effect, teased out to ensure that procedural fairness has occurred.  Mr McGlade, for the Respondent, counters and submits that this is the same issue that had always been before the Court. 

39. I agree with the submission of the Respondent. This matter of the sexual assault was simply a factor that the Tribunal could look at with regard to the same issue as to whether or not the Applicant had a well-founded fear of persecution or whether there was objectively serious harm to be done to the Applicant if she were returned to Papua New Guinea. In my view, s425 was not further enlivened.

40. This matter is one that has been looked at by other Courts, though not quite in the same way.  In ABV16 v Minister for immigration and Border Protection [2017] FCA 184, Bromberg J has, in effect, looked at a matter where the Applicant there had claimed that because of the Chinese policy, if he were returned to China, then he would be a “black child” whose basic rights in China, including rights to social services, would be threatened on that basis. The Tribunal had noted that that policy had now been changed and referred to the country information about that change.

41. His Honour seems to have found that the mere mention of this new policy created a new issue that is covered then by s425. The Applicant submits that the allegation of sexual assault is far more of a new issue than the discovery by the Tribunal of a new policy.

42. However, I am of the view that ABV16 (supra) can be distinguished on its facts.  In the present matter, the issue of the “well founded fear” based on the “tentacles” of the wives and tribesmen of the ex-husband was the issue.  The new claim of sexual assault gave the issue “more colour” or “more meat on the bones” but did not create a new issue. 

43. Notwithstanding the interpretation of the finding of His Honour, Bromberg J, urged upon me by the Applicant, I am of the view that the issue that was before the Court was a matter of whether harm would befall the Applicant if she were returned to Papua New Guinea. 

44. However, this issue was arguable and that was the reason that I have ultimately granted the extension of time in which to file this application. 

45. But, as I have already said, all the Applicant did in making available to the Tribunal more evidence in relation to her statutory declaration was not create a new issue but simply expand or give another factor to an issue. I am not of the view that s.425 applied in this matter. And for that reason I find that there was no jurisdictional error.

1. That being the case, I do not find that there is any jurisdictional error, and therefore the application is dismissed with costs in the sum of $7,206.00.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Vasta.

Date: 24 May 2017