DLV19 v Minister for Immigration

[2020] FCCA 2443

FEDERAL CIRCUIT COURT OF AUSTRALIA

DLV19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2443

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Turkey – applicant disbelieved in part and other fears found not to be well-founded – whether the Tribunal’s review was disabled by conduct of the applicant’s former partner considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.57, 424A, 424AA

Cases cited:

SZBYR v Minister for Immigration (2007) 235 ALR 609
SZFDE v Minister for Immigration (2007) 232 CLR 189
Wu Shan Liang v Minister for Immigration (1994) 48 FCR 294

Applicant: DLV19

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2339 of 2019

Judgment of: Judge Driver

Hearing date: 1 September 2020

Delivered at: Sydney

Delivered on: 3 November 2020

REPRESENTATION

The Applicant appeared in person by telephone

Counsel for the Respondents: Mr H Bevan by telephone

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application filed on 10 September 2019 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2339 of 2019

DLV19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 7 August 2019.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.

2. The following statement of background facts is derived from written submissions filed on behalf of the Minister on 22 June 2019. 

3. The applicant, a citizen of Turkey, last arrived in Australia on 10 April 2015 as the holder of a tourist visa, which was valid until 10 July 2015. Between October 2013 and April 2015, the applicant entered and departed Australia on six occasions. She resided in Australia unlawfully from 11 July 2015. On 21 November 2018, the applicant was detained and placed in immigration detention. She was subsequently released on 27 September 2019.[1]

   [1] Court Book (CB) 145-146

4. On 30 November 2018, the applicant applied for the visa.[2]  The applicant attended interviews before a delegate on 14 and 20 December 2018.[3] On 8 January 2019, she was invited to comment on her claims regarding her family and conversion to Christianity pursuant to s.57 of the Migration Act 1958 (Cth) (Migration Act).[4] On 14 January 2019, she responded to the s.57 letter.[5]  On 8 February 2019, the delegate refused to grant her the visa.[6]

   [2] CB 1-42

   [3] CB 149-150

   [4] CB 112-116

   [5] CB 120-134

   [6] CB 145-168

5. On 19 February 2019, the applicant applied to the Tribunal for review of the delegate’s decision.[7]  She attended a hearing on 9 April 2019 and asked the Tribunal to consider her diagnosis of complex Post Traumatic Stress Disorder (PTSD).[8]  The Tribunal was satisfied that she was able to participate and answered questions lucidly for some time.[9] The Tribunal recorded that the applicant became distressed, and in consultation with her representative, it was decided the Tribunal would write to her with questions and stated she could have a second hearing if she wished.[10]

   [7] CB 169-170

   [8] CB 178-179, 180-181, 186-188

   [9] CB 423, [25]

   [10] CB 423, [26]

6. On 14 May 2019, the Tribunal wrote to the applicant as foreshadowed and also invited her to comment on or respond to information under s.424A of the Migration Act,[11] namely information which was provided at her interview before the delegate about her claims for protection and reasons for travelling to Australia. The Tribunal also put information to the applicant about her unlawfulness in Australia, an Apprehended Domestic Violence Order (ADVO) and her involvement in an investigation concerning elder abuse. The Tribunal consented to extensions to respond to the information on two separate occasions and also provided her with notes from the interview conducted with the Minister’s Department (Department) on 29 May 2014 and 21 November 2018 as requested.[12]

   [11] See annexure DAHS-1 to the Affidavit Danielle Annalise Hope Stone filed on 8 October 2019

   [12] CB 200-201; 207-208; 423, [26]

7. On 14 June 2019, the applicant informed the Tribunal she wished to provide information at a hearing.[13]  She attended a resumed hearing on 16 July 2019.[14]  On 7 August 2019, the Tribunal affirmed the delegate’s decision.[15]

   [13] CB 209

   [14] CB 212-213, 288-290

   [15] CB 418-453

The applicant’s claims

1. The applicant’s claims for protection were set out in her visa application and can be summarised as follows:[16]

   a)she converted to Christianity from Islam after her initial arrival in Australia. She kept her conversion a secret as she feared her family would harm her and force her to remain in Turkey. She was severely punished for not complying with religious expectations when she was in Turkey and feared she would be harmed or killed as a result of her conversion;

   b)she feared harm due to her membership of the particular social group of single women in Turkey. She lost her freedom and rights due to the cultural expectations placed on single women;

   c)she experienced physical and psychological harm due to her identity, religion and family;  

   d)she could not relocate as her family would track her down due to her brother’s and father’s authority (as retired police officers) and their network.  She claimed that this would hinder her ability to obtain support from the authorities and that she could not seek help from her country because that would expose her identity to the authorities, who would persecute her.

   [16] CB 27-29

The Tribunal decision

1. The Tribunal summarised the applicant’s claims and evidence about her mental health.[17]  The Tribunal then set out in detail the oral and written evidence provided at both hearings.[18]

   [17] CB 422-423, [18]-[27]

   [18] CB 423-431, [28]-[74]

2. Relevantly, the Tribunal referred to a submission provided by the applicant’s former partner.[19] That submission included copies of the applicant’s submissions to the Department;[20] a document called “Part II claims regarding “conversion”;[21] his comments on PTSD and its consequences;[22] a book about women living in Islamic societies;[23] and a book about the effects of trauma and pathways to recovery.[24]

   [19] CB 430-431, [74]

   [20] CB 366-384

   [21] CB 385-402

   [22] CB 403-410

   [23] CB 411-412

   [24] CB 413-414

3. In light of the submissions about the applicant’s mental health, the Tribunal took into account its Guidelines on Vulnerable Persons. The Tribunal provided detailed reasons for determining that the applicant was competent to give evidence. It also summarised its review process noting that it gave the matter priority, conducted two hearings and provided the applicant with an opportunity to answer written questions. The Tribunal referred to the applicant’s request to obtain a formal psychiatric report at the second hearing and found this was unnecessary as detailed notes had already been provided by three medical practitioners.[25]

   [25] CB 431-433, [79]-[87]

4. The Tribunal accepted that the applicant’s PTSD may have impacted on her evidence to the Department and the Tribunal.[26] It also referred to having taken into account matters identified in the Tribunal’s Guidelines on the Assessment of Credibility in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.[27]

   [26] CB 433, [88]

   [27] CB 434, [94]

5. The Tribunal accepted the applicant had a complex relationship with her family. However, it was not satisfied she was the victim of family violence or that her brothers “kept tabs on her” since she came to Australia. It gave little weight to emails from the applicant’s brother and cousin and found they were not threatening in nature. It did not accept her family members threatened her or were violent to her in the past or threatened to harm her in the future, given there were no details of specific incidents of family violence and she had not advanced the claim previously.[28]

   [28] CB 435-436, [97]-[101]

6. The Tribunal was not satisfied the applicant had a genuine fear of serious harm from community members or the authorities because of her religion, gender or status as a single woman. It identified the lengthy period of time between the applicant’s arrival in Australia in March 2013 and her visa application in November 2018 and put this to the applicant pursuant to s.424AA of the Migration Act. The Tribunal did not accept that the applicant would not have sought protection earlier than 2018 if she had a genuine fear of persecution in Turkey. The Tribunal also put to the applicant pursuant to s.424AA that she only claimed to fear harm upon return to Turkey when she was apprehended by NSW Police and placed in immigration detention in 2018 and that her responses in the 2014 interview by the Department indicated other motivations to visit Australia than seeking protection.[29]

   [29] CB 436-437, [102]-[105]

7. Further, the Tribunal put to the applicant pursuant to s.424AA that she had omitted to mention her fear of harm when she was intercepted as an unlawful non-citizen in November 2018. It accepted she might have been distressed and felt intimidated. However, it was not satisfied she had a genuine fear of serious harm as she had been given a number of opportunities to provide her reasons for travelling to Australia and did not mention her fear of harm earlier.[30]

   [30] CB 438, [107]-[110]

8. The Tribunal considered the applicant’s oral evidence in respect of Islam and accepted she felt constricted by the religion when she was growing up. However, in circumstances where her family were not particularly observant, it was not satisfied her family forced her to practise the religion and found that evidence was given to bolster her claims.[31]

   [31] CB 438, [111]

9. The Tribunal put to the applicant under s.424AA that there was little evidence of her conversion, or practice of Christianity. The Tribunal was not satisfied that she engaged in a baptism days before the Tribunal hearing other than to bolster her claims. Notwithstanding this, it accepted that she engaged in Christian activities for purposes other than strengthening her claims and was satisfied she had been genuinely engaged in Christian worship in the last two years.[32]

   [32] CB 438-439, [112]-[115]

10. The Tribunal referred to the ADVO against the applicant and the allegations of elder abuse but disregarded them as evidence of propensity towards dishonesty, noting that there were current proceedings on foot in relation to these.[33]

    [33] CB 439-440, [116]

11. The Tribunal was not satisfied the applicant had a genuine fear of harm due to her Christian conversion or religion. It found that as her claim was only raised after all other avenues in Australia had been exhausted, and having regard to her personal circumstances and the country information before it, there was not a real chance of harm for reasons of religion if she returned to Turkey in the reasonably foreseeable future.[34]

    [34] CB 440, [121]

12. On the basis of its assessment of country information, the Tribunal was not satisfied the applicant would suffer serious harm from the authorities or the community on the basis of her religion. It referred to reports which indicated there was little violence against Christians or apostates, and that Christians could generally practise their religion freely. It accepted there was some official and societal discrimination against Christians in Turkey. However, the Tribunal was not satisfied such discrimination reached the requisite threshold of serious harm.[35]

    [35] CB 442-443, [130]-[133]

13. In respect of the applicant’s claim to fear harm from her family, the Tribunal was not satisfied that disagreements and insults among family members reached the level of serious harm. It also identified in light of country information that the applicant could move to a different area of Turkey.[36]

    [36] CB 443-444, [134]-[138]

14. The Tribunal accepted that women in many Islamic countries faced a number of difficulties. It found on the basis of the country information there was a low to moderate risk of discrimination on the basis of gender but was not satisfied there was a real chance of harm as a result of gender-based discrimination were she to return to Turkey.[37]

    [37] CB 444-446, [139]-[148]

15. In relation to the applicant’s mental health, the Tribunal found the applicant did not face a real chance of serious harm by reason of her membership of a particular social group of “persons with mental health problems”. The Tribunal identified country information which indicated that Turkey had a community based system for mental health services. The applicant claimed Turkey did not have such services and that she would not be able to afford private services. The Tribunal accepted there were some inadequacies in mental health services in Turkey but found the harm suffered, if any, would be due to the lack of available health services because of inadequate funding.[38] The Tribunal also found that country information identified mental health services were available in Turkey and that while there was a problem with underfunding, there was no intention by the authorities to inflict harm.[39]

    [38] CB 447-448, [152]-[156]

    [39] CB 448-449, [163]-[165]

16. Otherwise relying on its anterior findings, the Tribunal was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal to Turkey, she would face a real risk of significant harm.[40]

    [40] CB 448-449, [159]-[166]

17. Accordingly, the Tribunal concluded that the applicant did not satisfy the refugee or complementary protection criteria in s.36(2)(a) and (aa) of the Migration Act and affirmed the decision under review.[41]

    [41] CB 449, [167]-[170]

The current proceedings

1. These proceedings began with a show cause application filed on 10 September 2019. There is one particularised ground in it:

   1. The second respondent has considered information which was not submitted by the applicant or in accordance with s57 of Migration Act 1958

   Particulars

   (i) The second respondent at Paragraph 74 of the decision considered information and submissions made by [redacted].

   (ii) The second respondent relied on this information in making their decision to affirm the application.

   (iii)The applicant and the applicant’s authorised representative did not provide this information in support of the application and were unaware that this information had been submitted to the second respondent.

   (iv) The second respondent has failed to comply with s57 which requires that certain information must be given to the applicant.

   (v) The second respondent confirms that [redacted] provided a submission to them following the hearing that comprised of:

   --      A book titled "The Body Keeps The Score" about the effects of trauma and pathways to recovery, written by Professor Van Der Kolk

   --      A book titled "The Hidden Half, Women and Islam" about women living in Islamic societies, written by Dr. Stuart Robinson

   –      [redacted] comments on the applicant's "Complex P.T.S.D." and its impacts on the applicant.

   --      A document titled "Part II Religious Conversion" which appears to be written in first person as if it is the applicant's voice, although [redacted] states in his comments on the applicant's "Complex P.T.S.D." and its impacts on the applicant that "In another part of my submission which deals with the religion side of the submission, I will be joining these points to assert and explain my understanding that the official Immigration process that led to their rejection of the application was actually a sham."

   --      "Reworked" and "Expanded" copies of the applicant's two submissions to the Department. as [redacted] states in his submission

   (vi) The second respondent was aware that the relationship between [redacted] and the applicant had ended at the time of the second hearing.

   (vii) The applicant did not request the second respondent to receive any information from [redacted] in the capacity of a witness or in writing.  The applicant was unaware that the abovementioned information was received by the second respondent prior to the decision.

   (viii)The second respondent, in relying on the abovementioned information failed to afford the applicant the opportunity to comment on it.

   (ix) The second respondent failed to give particulars of the information and failed to ensure that the applicant understand why it is relevant.

2. The matter came before me for a show cause hearing on 29 October 2019.  At that time I received the applicant’s affidavit accompanying the judicial review application as a submission.  I received as evidence the affidavit of Danielle Annalise Hope Stone made on 8 October 2019 as well as the court book in two volumes filed on 29 September 2019.  The applicant tendered a bundle of documents concerning her health.[42]

   [42] Exhibit R1

3. At the show cause hearing, the applicant told me that she was suffering from anxiety and sought an adjournment.  She told me that she was in need of financial support and respect and that she had been diagnosed with PTSD and/or a general anxiety disorder.  She made particular reference to the involvement in her case before the Tribunal of her former partner, which she asserted had had a negative impact on her case.  Her particular concern related to a submission made purportedly on her behalf by her former partner.  The applicant asserted that her former partner had an ulterior purpose for assisting her. 

4. At that time I ordered, under rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth) that the Minister show cause why relief should not be granted in relation to the question of whether the conduct of the applicant’s former partner disabled the review function of the Tribunal. I also required the Minister to file and serve a transcript of the two hearings conducted by the Tribunal. I further gave the parties the opportunity to file and serve additional evidence and submissions. The matter was listed for a final hearing at 10.15am on 1 September 2020.

5. At the final hearing, which the applicant attended by telephone, she presented as highly emotional, as she had done at the show cause hearing.  She told me she had been taking prescribed medication including valium.  Her oral submissions were discursive and traversed a wide range of subjects concerning her health, her experiences in Turkey with her family, her experiences in detention and, pointedly, her relationship with her former partner.

6. The applicant asserted at the trial that she had sought documents from the Department and/or Serco concerning issues arising during her detention.  She sought orders from me compelling their production but I declined to make any order.  Instead, I invited the applicant to consider issuing a subpoena for any particular documents or classes of documents she might require.  I also extended time for the applicant to file and serve additional evidence or submissions until 30 September 2020.  Nothing further was filed.

7. I received into evidence the affidavit of Katherine Evans made on 9 March 2020, to which is annexed the transcript of the two hearings conducted by the Tribunal in this matter.  I invited the applicant to take me to any parts of the transcript which she considered significant.  Although she agreed to do so, she did not go to any particular points in the transcript but spoke in general terms.  Counsel for the Minister directed my attention to pages 44-46 of the affidavit and pages 50-54 of the affidavit in which the applicant addressed her personal circumstances including, pointedly, her circumstances with her former partner.  It follows from those passages that the Tribunal was put on notice by the applicant of her mental health condition, as well as her negative view of the relationship with her former partner.

Consideration

1. Although the applicant asserts that her former partner had an ulterior purpose in helping her, which may have been to manipulate or control her, or to achieve a cheaper migration outcome than a partner visa application or simply to prolong the relationship, I have not been presented with any evidence to support an assertion that the former partner’s involvement, particularly his presentation of a submission in support of the visa application, disabled the Tribunal’s review function.  The applicant did not take up the opportunity afforded to her to file and serve evidence prior to the trial detailing her factual claims, notwithstanding that the deadline for doing so was extended twice. Neither did she take up the post hearing opportunity I afforded her.

2. I accept the Minister’s submissions concerning the legal issue arising from the show cause order.

3. In SZFDE v Minister for Immigration,[43] a person held himself out to be a registered migration agent when he was not.  He accepted money from the appellants.  A valid application was made to the Tribunal.  The Tribunal invited the appellants to a hearing.  The “agent”, however, advised the appellants not to attend the hearing.  The appellants did not attend and their application was refused.

   [43] (2007) 232 CLR 189

4. The High Court (Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ) found that there was fraud and cited with approval the reasons of French J (as the Chief Justice then was) in the Full Federal Court.

5. The relevant passage is in SZFDE at [41]-[42] and is as follows:

   In the Full Court French J properly observed:

   ‘The finding of fraud should have specified, in one place in the reasons, what was said that was fraudulent, how it was fraudulent, and how it was acted upon.  The finding of fact that the magistrate made however was not challenged in these proceedings.’

   In his reasons, French J developed the matter as follows;

   ‘The agent held himself out to be a practising solicitor and registered migration agent.  He was neither.  He gave fraudulent advice that the Tribunal was 'not accepting any visa applications at all at the moment'.  He expressed a false concern that if [the first appellant] and her family appeared before the Tribunal they would say something inconsistent with his proposed submission to the Minister.  The advice amounted to a representation that the Tribunal process was a sham and that participation in it might prejudice [the first appellant's] prospects of a successful outcome on the basis of a submission to the Minister.

   ....

   The decision-making process, that is the process of review which incorporates an opportunity for a hearing on the conditions set out in Pt 7, was corrupted. The importance of the appearance before the Tribunal to the outcome of the review was highlighted by the Tribunal's reference, in its reasons, to matters which it did not have an opportunity to explore with [the first appellant] because of her non-appearance. On this basis, in my opinion, the decision of the Tribunal was vitiated. It was not a decision made under the Act and therefore not a privative decision protected by s 474.’

6. The High Court held that the agent’s fraudulent conduct in his dealings with the appellants had the effect of stultifying (i.e., preventing) the operation of the critically important natural justice provisions made by Division 4 of Part 7 of the Migration Act.[44]  Their Honours stated at [51]:

   No doubt Mr Hussain was fraudulent in his dealings with the appellants.  But the concomitant was the stultification of the operation of the critically important natural justice provisions made by Div 4 of Pt 7 of the Act.  In short, while the Tribunal undoubtedly acted on an assumption of regularity, in truth, by reason of the fraud of Mr Hussain, it was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review.  That state of affairs merits the description of the practice of fraud "on" the Tribunal.

   [44] SZFDE at [51]

7. The Court issued a caution with regard to the narrowness of the finding, at [53]:

   The significance of the outcome in this appeal should not be misunderstood. The appeal has turned upon the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the Tribunal of reviews and the place therein of the ss 425 and 426A.  In the Full Court French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made.  The outcome in the present appeal stands apart from and above such considerations.

8. An allegation of fraud is very serious.[45]  The allegation here does not rise to the level of fraud.  Instead, the proposition, broadly stated, is different, “the conduct of the applicant’s former partner disabled the review function of the Tribunal”.

   [45] SZFDE at [38]

9. It nevertheless remained essential for the applicant to specify precisely both “the conduct of her former partner” and then how she said that conduct “disabled the review function of the Tribunal”.

10. Moreover, it was critical that any such allegation be supported by evidence.

11. On 29 October 2019, the applicant was ordered to file and serve “any affidavit evidence detailing her factual claims” by, first, 30 June, second 10 July and, then, 21 July.  At the trial, I extended a further opportunity to the applicant to file further material.  She has not done so.

12. In the absence of both specificity as to the facts giving any content to the allegation and any evidence, the one issue on which the Minister was ordered to show cause cannot be made out.

13. I also accept the Minister’s submissions concerning the original ground of review, to the extent that it has any continuing relevance.

14. First, the Court has no jurisdiction to review the delegate’s decision and any error in the delegate’s decision regarding compliance with s.57 of the Migration Act was cured by the Tribunal’s decision.[46] Secondly, s.57 does not provide any obligation on the Tribunal or delegate to “consider information”.

    [46] Wu Shan Liang v Minister for Immigration (1994) 48 FCR 294 at [16]

15. Insofar as this ground is in substance a complaint that the Tribunal failed to comply with the obligations in s.424A of the Migration Act (being the “mirroring provision” to s.57 under Part 7 of the Migration Act), it reveals no error.

16. The particulars in support of this ground reveal that the applicant’s complaint is directed to the information provided by her former partner. The complaint is in essence, that the Tribunal should not have considered that information. At the time of the visa application, the applicant indicated that her former partner was her current spouse/de facto partner[47] and this was confirmed in a statement provided by her on 20 December 2018.[48]

    [47] CB 6

    [48] CB 63

17. On 5 August 2019, the applicant’s former partner provided information in support of the application by hand to the Tribunal.[49]  As outlined above, the information provided with the submission included “Part 1 - Claims Regarding Family”[50] and “Part 2 - Claims Regarding Conversion”.[51] These two documents were reproductions of the information already provided by the applicant on 14 January 2019.[52] The other information attached to the submission related to her PTSD, women in Islam and trauma.[53]

    [49] CB 366-414; see annexure DAHS-1 to the Ms Stone’s affidavit

    [50] CB 367-384

    [51] CB 385-402

    [52] CB 120-134

    [53] CB 403-414

18. Particular (ii) to the applicant’s ground of review complains that the Tribunal “relied on this information” in affirming the decision but that the applicant was not aware he had provided this information to the Tribunal. The applicant further asserts in Particular (vi) that the Tribunal knew her relationship with her former partner had ended and that she did not request that it receive any information from him. The applicant contends in Particular (viii) that she was not provided with an opportunity to comment on the information.

19. The submission and supporting documents provided by the applicant’s former partner did not enliven s.424A because, critically, the information supported, rather than undermined, her claims. Indeed, the Tribunal referred to the material submitted by the applicant’s former partner in accepting that her PTSD may have impacted on her evidence given to the Department and Tribunal.[54]  It also accepted, by reference to the book provided by the applicant’s former partner, that women in many Islamic countries faced a number of difficulties.[55] Thus, the submission and supporting documents provided by the applicant’s former partner did not constitute a “rejection, denial or undermining” of the applicant’s claims to fear harm and were not “a reason, or part of the reason, for affirming the decision under review”.[56] This being so, the submission and supporting documents provided by the former partner did not enliven the Tribunal’s obligations under s.424A of the Migration Act.

    [54] CB 433, [88]

    [55] CB 445, [141]

    [56] SZBYR v Minister for Immigration (2007) 235 ALR 609 at [17]

Conclusion 

1. The applicant has failed to establish that the decision of the Tribunal is affected by any jurisdictional error. The decision is a therefore a privative clause decision and the application must be dismissed. I will so order.

2. I will hear the parties as to costs.

I certify that the preceding fifty three (53) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date: 3 November 2020