DHL16 v Minister for Immigration

[2019] FCCA 2403

FEDERAL CIRCUIT COURT OF AUSTRALIA

DHL16 & ORS v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2403

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – whether the final hearing should be adjourned – whether the Tribunal failed to adequately consider the applicants’ medical and mental conditions – whether the Tribunal made a jurisdictional error in relation to the evidence about the first applicant’s addresses.

First Applicant: DHL16

Second Applicant: DHM16

Third Applicant: DHN16

Fourth Applicant: DHO16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2413 of 2016

Judgment of: Judge Riley

Hearing date: 6 August 2019

Date of Last Submission: 6 August 2019

Delivered at: Melbourne

Delivered on: 6 August 2019

REPRESENTATION

Advocate for the first applicant: In person

Second, third and fourth applicants: No appearance

Solicitors for the applicants: None

Advocate for the first respondent: Inshani Ward

Second respondent: No appearance

Solicitors for the respondents: Sparke Helmore

ORDERS

1. The application for an adjournment filed on 6 August 2019 be dismissed.

2. The application filed on 4 November 2016 be dismissed.

3. The applicants pay the first respondent’s costs of the proceeding fixed in the sum of $5,000.

4. The title of the proceeding be amended so that the name of the first respondent be Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2413 of 2016

DHL16

First Applicant

DHM16

Second Applicant

DHN16

Third Applicant

DHO16

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)[1]

Adjournment application

[1]It came to the attention of chambers on Friday, 23 August 2019 that an appeal was filed in this matter on 16 August 2019. Chambers ordered a transcript of the reasons for judgment on Tuesday, 27 August 2019 at 12:30pm on next day turnaround. Auscript provided the transcript of the reasons for judgment on Wednesday, 28 August 2019 at 10:08am. The reasons for judgment were settled on 28 August 2019, and provided to the parties by email on the same day at 3:20pm.

1. This is an application for an adjournment of a migration matter. A substantive application was filed on 4 November 2016. The first applicant filed an application in a case today, 6 August 2019, seeking an adjournment of the final hearing. The matter was listed for final hearing today by a notice of listing sent on 10 August 2017.

2. The matter was listed for hearing at 10am. However, the interpreter who had been booked failed to appear. After inquiries were made, it was discovered that another interpreter could attend at 2pm today, so the matter was stood down until that time.

3. While the matter was stood down, the first applicant filed the application in a case seeking an adjournment. The adjournment application is opposed by the Minister.

4. The adjournment application was supported by an affidavit affirmed by the first applicant on 6 August 2019. The affidavit says as follows:

   1.We, as appellants humbly seek a postponement of the hearing to a date convenient to the court.

   2.I as the main appellant sought an adjournment earlier from the court but was advised that this will have to be with the consent of the Minister’s lawyers.

   3.I approached the Minister’s lawyers but they said they will not be consenting to same.

   4.I was able to seek assistance from a solicitor and a barrister who were willing to help us. They said they have to see that a reasonable argument need to be found. We are very aggrieved by the decision and have filed the application on our own. We believe the decision is not right in our circumstances and what is continuing in the country. But we are not able say correctly in legal terms what is the legal error in the decision.

   5.The barrister indicated that with the approach the tribunal has taken, it will be necessary to have a transcript of the proceedings before the tribunal to consider The question asked and answers given. I asked for time to obtain the transcripts and I needed to obtain some funds to do that. We believe that if this is examined there will be some errors which the tribunal did with the answers we gave.

   6.At the start itself I told the tribunal about the sickness I had related to memory and some lapses last time was also due to this. I told the tribunal that some answers may not be correct or contradictory combined with the long time of most events.

   7.The Tribunal asked whether I had medical evidence to show whether I am unfit to give evidence. I told [the Tribunal] I do not have any doctors certificates but have been regularly going to counselling and showed the appointment cards. The tribunal was not inclined to give some time for me to obtain medical evidence to support my sickness. Similarly is the situation of my wife. The tribunal did not give any time.

   8.Most critical matters on which the tribunal has held that we are unreliable witnesses arise largely out of contradicting answers due to my memory lapse in recollecting events.

   9.Our children know nothing about Sri Lanka and at all times have been here. They have not known anything about that country and their fears in returning to that country has not been adequately examined or considered by the tribunal.

   10.For all these reasons we request that a postponement be granted for us to be adequately represented.

5. In oral submissions, the applicant told the court that he went to Victoria Legal Aid within a month of filing the substantive application on 4 November 2016. He said that after holding the matter for about 11 months, Victoria Legal Aid told him in about November 2017 to seek legal assistance elsewhere. He said that he then tried to search for free legal advice. He said he went to the Asylum Seeker Resource Centre, but they did not help him.  He said that two months ago, he saw Ravi James, who said he could file documents free of charge.

6. The court telephoned Ravi James. Mr James told the court by telephone that he told the applicant that he could assist him more or less pro bono, subject to advice from counsel. Mr James told the court that he had briefed Anthony Krohn of Counsel, who said that he needed a transcript of the Tribunal hearing to be able to assist the applicant further.  Mr James told the court that he thought the transcript would cost between $600 and $800, he thought Mr Krohn’s fee would be between $3,000 and $3,500 and he thought that the transcript would take about three or four weeks to be obtained.

7. I asked the first applicant whether he could get or whether he had $4,000.  He said that he could get that money, but would need about a year to do so.  He said that he had not approached Ravi James earlier, because he did not know how to find him.

8. In these circumstances, I do not consider that it is appropriate to grant an adjournment of the final hearing in this matter. There is nothing to indicate that counsel has presently identified a jurisdictional error. The applicant needs a year, on his own estimation, to gather the funds to enable him to get legal representation. The applicant has already had about two-and-a-half years since filing to organise legal representation.  While the matter seems to have been in the hands of Victoria Legal Aid for about the first 12 months since filing, the applicant has had at least 18 months to organise legal assistance since Victoria Legal Aid said they could not assist him.

Substantive application

1. This is an application for review of a decision of the Administrative Appeals Tribunal. The Tribunal affirmed a decision of a delegate of the Minister refusing the applicants protection visas.

2. The first applicant is the husband of the second applicant and the father of the third and fourth applicants. The first applicant came to Australia on 20 July 2006 as the holder of a student visa. The second, third and fourth applicants joined the first applicant in Australia in October 2006. 

3. The first applicant subsequently applied for another student visa.  However, that was refused. The applicant applied for review by the Migration Review Tribunal which affirmed the visa refusal. The first applicant then sought judicial review. However, he later withdrew from those proceedings.

4. The first applicant then applied for the protection visa which is the subject of the current application.  That application was filed on 28 June 2013. The second, third and fourth applicants were included in the application as members of the family unit, but had no claims of their own.

5. In his protection visa application, the first applicant claimed to fear harm because he supported the JVP Party. He said that he had been targeted by government agents and they had damaged his house and threatened to beat his wife.

6. On 7 October 2013, the applicants provided additional information to the delegate. On 8 May 2014, the delegate refused the visas.

7. The applicants then sought review by the Refugee Review Tribunal. The applicants provided a further written statement to the Tribunal, which included some new claims. The Tribunal affirmed the delegate’s decision on 31 October 2014.

8. The applicants then sought judicial review in this court.  The matter was remitted to the Tribunal by consent on 30 November 2015.  The first and second applicants provided statutory declarations to the Tribunal on 6 April 2016.  The first, second and fourth applicants attended a Tribunal hearing on 20 April 2016 and gave evidence to the Tribunal.

9. The Tribunal considered that there were substantial credibility issues, given the changes in the applicants’ accounts over a period of time.  The Tribunal considered whether the passage of time and the applicants’ medical and psychological conditions may have affected their ability to provide a consistent account of their experiences.  However, the Tribunal did not accept that those conditions or the passage of time or nerves explained the various inconsistencies which the Tribunal identified. The Tribunal did not accept that the first and second applicants were witnesses of truth and rejected their claims.  The Tribunal did not accept that the applicants would face serious or significant harm if they were to return to Sri Lanka.

10. The grounds of review in the application filed in this court on 4 November 2016 are as follows:

    The decision of the Tribunal:

    (a)     is affected by an error of law; and

    (b)     denied the applicant procedural fairness.

    Those grounds were not particularised in the application filed in this court.

11. The first applicant appeared at the hearing today. However, the second, third and fourth applicants did not appear.

12. The first applicant told the court that his wife suffered from a mental condition and had memory loss. He said this was mentioned to the Tribunal.  He said that he was nervous before the Tribunal and that the trauma he had experienced caused him to struggle with the facts.  He said that there was a mix-up between the permanent and temporary addresses that he gave in his protection visa application.  Otherwise, the first applicant did not elucidate the grounds of review in the application filed in this court.

13. The Tribunal noted the claims in relation to the first and second applicants’ memory and mental and physical conditions at paragraphs 57, 58 and 59 of its reasons for decision. Those paragraphs are as follows:

    57.During the hearing the applicant told the Tribunal he had a mental condition, and on questioning the applicant told the Tribunal he had a problem with his memory stating even when his wife asked him something he cannot answer straight away. When asked if he had seen a doctor about this the applicant told the Tribunal he had seen a counsellor about 10 times. When asked if he had been diagnosed with any medical conditions the applicant told the Tribunal he had not been diagnosed with anything and the sessions with the counsellor were advice about how to get over the situation. When asked if the applicant took any medication he told the Tribunal he took Panadol for headaches. He told the Tribunal he had experienced this problem of not being able to answer straight away for about five years. If he tries to memorize anything he gets a headache. The applicant showed the Tribunal an appointment booklet recording monthly appointments with a counsellor. While the Tribunal accepts the applicant sees a counsellor and takes Panadol for headaches, and it accepts that the passage of time and nerves at giving evidence at a hearing can affect a person's ability to recall detail, the Tribunal does not accept these circumstances explain the concerns raised below. The Tribunal does not accept the applicant's memory is impaired or is not functioning in a way that would explain the concerns discussed below.

    58.During the hearing the second named applicant told the Tribunal she suffers from high blood pressure and takes medication for that. On questioning the second named applicant told the Tribunal she does not have any other medical conditions and does not take any other medications. She later told the Tribunal she sees her doctor regularly who tells her she is thinking too much about all the problems and has advised her to be patient and be calm and not to think too much about these things. The Tribunal has taken this information into consideration when assessing the credibility of the second named applicant.

    59.There is no evidence before the Tribunal to suggest the applicants were unable to meaningfully participate in the hearing due to medical issues.

14. The Tribunal also said at paragraph 96 of its reasons for decision the following:

    During the hearing the Tribunal raised its concerns that the second named applicant failed to mention the incident where the applicant was attacked on his motorbike and injured and went to hospital where he received stitches. In response the second named applicant told the Tribunal she remembers the incident very well but may have failed to mention it due to her mental condition and bad memory. On questioning the second named applicant told the Tribunal that she gets frequent headaches and sometimes loses memory. On further questioning the second named applicant told the Tribunal she sees a doctor, and when asked if she had been diagnosed with a medical condition and/or prescribed medication or treatment the second named applicant told the Tribunal her doctor has said she is thinking too much about all the problems and has advised her to be patient and be calm and not to think too much about these things. She told the Tribunal she sees her doctor once a month and discuss her issues and she is advised to think lightly and forget about the past.

15. The Tribunal’s conclusions about these matters was expressed at paragraphs 102 and 103 of its reasons for decision, which are as follows:

    102.While the Tribunal accepts the second named applicant has high blood pressure and takes medication for that, and it accepts the passage of time and nerves at giving evidence at a hearing can affect a person's ability to recall detail, the Tribunal does not accept these circumstances explain the concerns raised above. Nor does the Tribunal accept the second named applicant's memory is impaired or is not functioning in a way that would explain the differences noted above.

    103.The Tribunal is not persuaded by the second named applicant's responses and considers the difference between her oral evidence at the RRT hearing and the AAT hearing and the applicant's oral evidence and second written statement are significant and reflect poorly on her credibility and the reliability of her evidence.

16. As can be seen, the Tribunal was well aware of the claims relating to the first and second applicants’ medical and mental conditions. The Tribunal rejected those bases as a reasonable explanation for the discrepancies in the first and second applicants’ evidence.  In addition, the Tribunal said at paragraph 113 of its reasons for decision:

    As noted above the Tribunal has taken into consideration the information provided by the applicants about their medical conditions, and the Tribunal accept the applicant sees a counsellor on a monthly basis and takes Panadol for headaches and that the second named applicant has high blood pressure and sees her doctor regularly. The Tribunal has also taken into consideration that 10 years has elapsed since many of the events referred to above occurred and the Tribunal accepts the ability to recall detail can be affected by the passage of time as well as by nerves about giving evidence at a hearing. Nevertheless, the Tribunal is not satisfied these circumstances explain or resolve the concerns raised above. Given the significance of the events to the applicants, the Tribunal would expect them to be able to provide a generally consistent account or one without the number of discrepancies noted above.

17. It seems to me that the Tribunal’s reasoning on these matters was reasonably open to it. I do not consider that the Tribunal made a jurisdictional error for the reasons stated by the first applicant.

18. In relation to the issue concerning the addresses, the Tribunal said at paragraphs 64 and 65 of its reasons for decision:

    64.During the hearing the Tribunal noted that in his visa application forms the applicant provided previous address information which indicated the applicant lived at one address, an address he confirmed was his family home in Negombo, between July 1997 and July 2006. The Tribunal noted the applicant had told the Tribunal he left Sri Lanka in July 2006 and the Tribunal raised its concerns that the information in the visa application forms was different to the applicant's oral evidence, that he left his family home and lived at his mother's home and then elsewhere to avoid harm before he left Sri Lanka.

    65.In response the applicant told the Tribunal it was his postal address, he was not staying at his mother's house permanently and so recorded his family home address as it was his postal address at the time. The Tribunal is not persuaded by the applicant's response. The Tribunal notes the applicant indicated in the hearing the attack at his home at which time he decided to move to his mother's home occurred around mid 2005, and then he later moved to a village market, and then moved to a friend's home in another village. The Tribunal notes the visa application forms does not ask for a postal address, and the Tribunal considers the applicant's oral evidence is very different to the information he provided in the visa application forms about where he was living in Sri Lanka prior to coming to Australia.

19. It seems to me that, again, the Tribunal’s conclusions and manner of dealing with the issues relating to the addresses was reasonably open to it.  I am not persuaded that the Tribunal made a jurisdictional error in relation to these matters.

20. I have looked at the Tribunal’s reason for decision and various parts of the court book. I have been unable to identify anything that could amount to a jurisdictional error. Consequently, the application must be dismissed.

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

Associate: 

Date:  28 August 2019