DQU19 v Minister for Immigration

[2020] FCCA 771

FEDERAL CIRCUIT COURT OF AUSTRALIA

DQU19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 771

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in the Philippines – applicant’s fears found not to be well founded – whether the Tribunal overlooked a relevant consideration or failed to deal with a claim considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.5J

Cases cited:

Minister for Immigration v Guo (1997) 191 CLR 559

Applicant: DQU19

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2463 of 2019

Judgment of: Judge Driver

Hearing date: 3 April 2020

Delivered at: Sydney

Delivered on: 3 April 2020

REPRESENTATION

The Applicant appeared in person by telephone

Counsel for the Respondents: Mr T. Reilly by telephone

Solicitors for the Respondents: Australian Government Solicitor by telephone

ORDERS

1. The application filed 24 September 2019 is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2463 of 2019

DQU19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Background

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 27 August 2019.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.  Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 26 March 2020.  

2. The applicant is a citizen of the Philippines who arrived in Australia on 18 March 2007, aged 11, on his mother’s Temporary Work (skilled) visa. He was charged with an offence in 2015 and his Temporary Work visa was cancelled. He was convicted for the offence of being in the company of persons committing a sexual assault in 2017 and sentenced to 7 years’ incarceration. The applicant was released on parole in 2019 and moved directly into immigration detention. The applicant applied for the visa on 25 June 2019,[1] and attended an interview with the delegate on 4 July 2019.

   [1] Court Book (CB) 1-26

3. The application was refused by the delegate on 10 July 2019.[2] On 11 July 2019 the applicant sought review of the delegate’s decision by the Tribunal. On 16 August 2019 the applicant attended a Tribunal hearing to give oral evidence and present arguments.[3] The applicant was represented by a registered migration agent at the interview.

   [2] CB 44-60

   [3] CB 97-99

4. On 27 August 2019 the Tribunal affirmed the decision of the delegate not to grant the applicant the visa.

Tribunal decision

1. The applicant claimed that there was a high rate of criminal activity like kidnapping and extortion in the Philippines, as well as endemic alcohol consumption and drug abuse. The applicant claimed that has he has lived for so long in Australia, it would be hard for him to find a job in the Philippines. He also claimed that he has no close relatives or acquaintances in the Philippines and would struggle to reintegrate. The applicant claimed to fear being murdered or executed extra-judicially due to the violent crackdown in the drug culture, and fears that he would not be able to avoid succumbing to negative peer influence, leading to involvement in crime.[4]

   [4] CB 111 [13]-[16]

2. At the Tribunal hearing, the applicant indicated although he would not know how to get a job in the Philippines, he would get in touch with his extended family to obtain help if he were returned.[5]

   [5] CB 112 [17]-[18]

3. The applicant also claimed to have been under the influence of alcohol at the time of his offending in 2015. The Tribunal considered the applicant’s pre-sentence report which stated that the applicant would take ecstasy or cocaine for recreational purposes, however the Tribunal found there was no evidence before it which indicated that the applicant is or has ever been treated for addiction to any prohibited substance.[6] The applicant’s advisor contended that there was a stronger chance or risk of the applicant taking and becoming addicted to drugs in the Philippines than existed in Australia, meaning that there was concomitantly a real chance of his being persecuted, and a real risk of his being arbitrarily killed, tortured or subjected to cruel, degrading or inhuman treatment or punishment in that country.[7]

   [6] CB 112 [19]

   [7] CB 112-113 [20]

4. In contrast, the applicant gave evidence that if allowed to remain in Australia he would not consume illicit drugs and would avoid contacting anti-social people, emphasising that he has learned from his past mistakes with drugs, alcohol and hanging out with the wrong kinds of people.[8]

   [8] CB 113 [21]

5. The applicant’s adviser submitted a number of reports relating to the anti-drug crackdown in the Philippines.[9] The Tribunal considered country information, including a 2017 Human Rights Watch Report, a recent Pulitzer Prize-winning New York Times photo essay, and various news articles relating to the situation in the Philippines.[10] The Tribunal found that the facts indicated that seeking drug rehabilitation in the Philippines far from protects a person from the risk of extrajudicial killing.[11] The Tribunal found that the applicant would be expected to register in a barangay (local district) from which vigilante groups who commit summary executions of alleged drug traffickers are assembled.[12] Although the Tribunal noted that the applicant may appear conspicuous because of his limited Tagalog and his Australian accent, the applicant did not provide any evidence that this conspicuousness would lead to an assertion that the applicant was involved with drugs.[13]

   [9] CB 113 [22]

   [10] CB 113-117 [23]-[27]

   [11] CB 116 [25]

   [12] CB 117 [28]

   [13] CB 117 [28]

6. The Tribunal also considered whether the applicant would face “double jeopardy” for the crimes he committed in Australia if he were returned to the Philippines as an implicit claim, having regard to the principles laid out in the Constitution of the Philippines.[14]

   [14] CB 118 [30]

7. The Tribunal accepted that whilst the applicant may be regarded by some people in the Philippines as a “foreigner”, “returned expatriate” and “returnee from a rich country” there was insufficient evidence to satisfy the Tribunal that the applicant faces a real chance of being persecuted for reasons of these kinds of actual or imputed profile.[15]

   [15] CB 119 [33]

8. The Tribunal also found that there was not a real chance of the applicant facing double jeopardy in the Philippines for crimes committed in Australia.[16]

   [16] CB 119 [34]

9. The Tribunal considered the applicant’s evidence that he will be unable to avoid lapsing into illicit drug abuse given the stress and depression accompanying forced return to the Philippines. The Tribunal considered that the applicant’s representative was either asserting that the applicant’s propensity to indulge in illicit drugs means he could be reasonably categorised as “persons associated with the illicit drug trade in the Philippines” which would mean that there was a real chance or real risk of his being extra-judicially or arbitrarily killed, or, expecting the applicant to abandon his relationship with illicit drugs would be tantamount to requiring him to alter or conceal either a characteristic “fundamental to his identity” or some kind of “innate or immutable characteristic” in a way that would be counter to the provisions of s.5J(3)(a) and (b) of the Migration Act 1958 (Cth) (Migration Act).[17]

   [17] CB 119-120 [36]

10. In considering these claims, the Tribunal gave some weight to the lack of medical evidence indicating that the applicant ever was, or might become, addicted to drugs. The Tribunal also considered the applicant’s own evidence regarding his desire to move forward with his life away from drugs, that he would seek help from relatives in the Philippines and that he wishes to move away from anti-social influences.[18] The Tribunal concluded that it was not inevitable that the applicant would lapse into drug-taking or drug culture, and that it was not unreasonable for any s.5J(3) of the Migration Act reason to expect him to modify his behaviour. The Tribunal found there was not a real chance of the applicant being persecuted in the Philippines for reasons of association with illicit drugs.[19]

    [18] CB 120 [37]

    [19] CB 120 [38]

11. The Tribunal considered the applicant’s claims to complementary protection as mostly the same as his refugee status claims, and as those had failed, they could no more succeed as complementary protection claims.[20] The Tribunal was not satisfied that the applicant would suffer disadvantage or detriment in the Philippines as a result of adjusting to life in the Philippines, such as would amount to significant harm, let alone intentionally inflicted harm, or such as would be experienced by him personally and not by the population generally.[21]

    [20] CB 121 [50]

    [21] CB 121 [51]

12. The Tribunal affirmed the decision not to grant the applicant a protection visa.[22]

    [22] CB 122 [55]

13. These proceedings began with a show cause application filed on 24 September 2019.  At that stage, the applicant was represented by Mr Adrian Joel but he subsequently withdrew.  The application contains two particularised grounds: 

    1. The Administrative Appeals Tribunal failed to consider the relevant consideration and/or constructively failed to exercise its jurisdiction in that if failed to consider a claim made by the Applicant, namely he was a continuing, opportunistic user of drugs.

    Particulars

    a. Both prior to and during the current incarceration, Applicant consumed drugs including marijuana and consorted with drug takers whilst in detention.

    b. Country Information quoted the police have profiled and murdered low level users of illegal drugs, even those who have identified themselves to authorities and sought assistance.

    2. In the alternative to Ground one, if the Tribunal did not consider (which is not conceded) the Applicant’s claim of the consequence of drug use in the Philippines, the Tribunal asked itself the wrong question and/or misunderstood the nature of its task and/or took into account an irrelevant consideration when it considered the Applicant’s claims.

    Particulars

    a. The Tribunal took the following “criteria” into account, namely

    (i) [The] [a]pplicant [was] never a drug addict or treated for drug addiction.

    (ii) The meaning of the claims conveyed and meaning ascribed to the Country Information relied upon presupposes a level drug abuse that could be equated to that of addiction and/or dealing so as to then act as a catalyst to State-sponsored murder.

    b. Considering there was not addiction, (notwithstanding incarceration over the last four years) it was not inevitable that the Applicant lapse into drug abuse nor was it not unreasonable to expect the applicant to modify his behaviour, notwithstanding evidence conveyed but not referred to opportunistic drug taking whilst in detention.

    c. Evidence conveyed established [the] Applicant had failed to modify his conduct and had consorted with drug takers whilst in detention.

    d. The Tribunal relied upon the Applicant’s own uncertain evidence about the behaviour he would try to undertake and his aspirations to improve his behaviour in the Philippines. Tribunal failed to ask what the consequences would be in the event that the Applicant continued/lapsed into opportunistic drug taking.

14. The applicant told me that he continued to rely upon that application.  It is supported by an affidavit by Mr Joel, which the applicant relies upon.  Annexed to that affidavit is a copy of the decision of the Tribunal.  I did not receive into evidence the book of relevant documents filed by the Minister on 9 November 2019.  That was because the applicant told me he did not have the book of relevant documents, and it appears likely that it was retained by Mr Joel when he ceased to act for the applicant earlier this year.  In addition, it proved not to be necessary to refer to any documents in the book other than the Tribunal decision, which was already before me from Mr Joel’s affidavit.  The applicant confirmed that he had received and read the Minister’s outline of legal submissions. 

15. I invited oral submissions from the applicant this morning.  He had little that he could add to the grounds of review.  He told me that he was unsure what he would find in the Philippines if he was required to return there, and he is concerned that if he does return to the Philippines, circumstances will lead him to resume his life of drug use and possible criminal behaviour.  That is consistent with what he told the Tribunal. 

16. A difficulty, however, is that before the Tribunal, the applicant presented a dichotomy of circumstances.  He claimed to have reformed, following his prison experience in Australia, but, on the other hand, claimed that if he returned to the Philippines, he would resume recreational drug use and association with criminals, potentially leading him into further offending and attracting the adverse interest of the Filipino authorities. 

17. The Tribunal considered those issues.  The Tribunal considered that the risk of the applicant coming to the adverse attention of the authorities was not significant, but also considered that it was reasonable to expect the applicant not to resume his drug use even if that required him to modify his behaviour.  I see no error in this approach by the Tribunal.  In other aspects, I agree with the Minister’s submissions concerning the grounds of review. 

18. Ground 1 claims that the Tribunal failed to consider a claim that the applicant was a “continuing, opportunistic user of drugs”. However the applicant did not claim this. He claimed to have used drugs occasionally in detention[23] but would not do so in the future, at least if he remained in Australia.[24]As the Tribunal found, there was a lack of evidence that the applicant was a drug addict.[25] As the applicant did not claim to be a “continuing, opportunistic user of drugs” this ground fails.

    [23] CB 112 [19]

    [24] CB 113 [21]

    [25] CB 120 [37]

19. Ground 2 claims that the Tribunal failed to ask the correct question, essentially because it failed to ask what the consequences would be if the applicant did relapse into drug taking in the Philippines. On a fair reading, the Tribunal at [37] in effect found that there is no real chance that the applicant would so lapse. Its conclusion that the applicant’s adviser’s submission that the applicant would be unable to avoid relapsing was “based merely in speculation” indicates that the Tribunal considered that the stated fear was not well founded.[26] The Tribunal’s references to s.5J(3) of the Migration Act are an additional reason for this conclusion, but not strictly necessary given it did not accept that there is a real chance of the applicant relapsing. This ground also fails.

    [26] Minister for Immigration v Guo (1997) 191 CLR 559 at 572 (“a fear of persecution is not well founded if it is merely assumed or mere speculation”)

20. I conclude that the applicant is unable to demonstrate that the decision of the Tribunal is affected by any jurisdictional error.  It is, therefore, a privative clause decision and the application must be dismissed.  I will so order.

21. In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $6,000.  The applicant told me that he did not know what to say in relation to the issue of costs.  I will make the order sought by the Minister.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date: 17 April 2020