FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DRO18 v Minister for Home Affairs [2024] FedCFamC2G 418
File number: MLG 2056 of 2018 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 10 May 2024 Catchwords: MIGRATION LAW – application for judicial review – decision of the Administrative Appeals Tribunal – Protection (subclass 866) visa – where Tribunal made adverse credibility findings – country of reference found by Tribunal to not be as claimed – whether Tribunal imported an inappropriate element onto the ‘real chance’ test – whether country information reveals error in application of test – no error by the Tribunal in the application of the ‘real chance’ test – whether Tribunal erred in failing to consider applicant’s mental ill health as a cause of discrimination or stigmatisation – Tribunal gave consideration to claims of applicant’s mental ill health as they arose on the material – where Tribunal relied on reasoning in relation to refugee criteria to make a finding in relation to complementary protection criteria – no jurisdictional error made out – application dismissed. Legislation: Migration Act 1958 (Cth), ss 36(2)(a) and (aa) Cases cited: CGA15 v Minister for Home Affairs [2019] FCAFC 46
Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6
Division: Division 2 General Federal Law Number of paragraphs: 71 Date of last submissions: 13 March 2024 Date of hearing: 13 March 2024 Place: Melbourne Counsel for the Applicant: Ms K Grinberg Solicitor for the Applicant: Victoria Legal Aid Counsel for the First Respondent: Ms H Hofmann Solicitor for the First Respondent: Clayton Utz The Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 2056 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DRO18
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
10 MAY 2024
THE COURT ORDERS THAT:
1.The applicant’s application be dismissed.
2.The applicant pay the First Respondent’s costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
Before the court is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 19 June 2018. By its decision, the Tribunal affirmed a decision of a delegate of the Minister for Home Affairs (‘the Minister’) to refuse to grant the…
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Details
- Case
- [2024] FedCFamC2G 418
- Decision Date
CaseChat Overview and Summary
The case of DRO18 v Minister for Home Affairs involves an application for judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) which affirmed a delegate’s refusal to grant the applicant a Protection (Subclass 866) visa. The applicant, a Somali national with Kenyan citizenship, sought the visa on the basis of fearing harm in Kenya due to his Somali ethnicity and mental health issues. The Tribunal found the applicant’s explanation for his Kenyan identity documents to be not credible, assessed his claims against Kenya, and concluded that he did not meet the criteria for refugee status or complementary protection. The applicant now challenges this decision on two grounds.
The primary legal issues in this case are whether the Tribunal incorrectly applied the ‘real chance’ test in refugee law and whether it failed to adequately consider the applicant's mental health as a basis for discrimination or stigmatisation in Kenya. The applicant argues that the Tribunal misinterpreted the ‘real chance’ test by considering factors not relevant to the assessment and overlooked his mental health as a ground for protection. The Minister contends that the Tribunal’s decision was correct and that it properly applied the relevant legal criteria.
The court found that the Tribunal did not err in its application of the ‘real chance’ test. It correctly considered the cumulative effect of the applicant's characteristics and concluded that there was no real chance of serious harm if he were to return to Kenya. The court further held that the Tribunal had adequately addressed the applicant's claims regarding his mental health, considering them in the context of the evidence provided. The court found no jurisdictional error in the Tribunal’s reasoning or its application of the law. Consequently, the application for judicial review was dismissed. The court's decision affirmed the Tribunal's conclusion that the applicant did not meet the criteria for a protection visa.
The primary legal issues in this case are whether the Tribunal incorrectly applied the ‘real chance’ test in refugee law and whether it failed to adequately consider the applicant's mental health as a basis for discrimination or stigmatisation in Kenya. The applicant argues that the Tribunal misinterpreted the ‘real chance’ test by considering factors not relevant to the assessment and overlooked his mental health as a ground for protection. The Minister contends that the Tribunal’s decision was correct and that it properly applied the relevant legal criteria.
The court found that the Tribunal did not err in its application of the ‘real chance’ test. It correctly considered the cumulative effect of the applicant's characteristics and concluded that there was no real chance of serious harm if he were to return to Kenya. The court further held that the Tribunal had adequately addressed the applicant's claims regarding his mental health, considering them in the context of the evidence provided. The court found no jurisdictional error in the Tribunal’s reasoning or its application of the law. Consequently, the application for judicial review was dismissed. The court's decision affirmed the Tribunal's conclusion that the applicant did not meet the criteria for a protection visa.
Orders
Orders of the court
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Background
Background to the litigation
Before the court is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 19 June 2018. By its decision, the Tribunal affirmed a decision of a delegate of the Minister for Home Affairs (‘the Minister’) to refuse to grant the applicant a Protection (Subclass 866) visa (‘protection visa’).BACKGROUND The applicant was born in Somalia, held both Somalian and Kenyan passports, and is of Somali ethnicity and Muslim religion.[1] He arrived in Australia in September 2009 on a student visa.[2][1] Court book at page 14. [2] Court book at page 15. Application for a protection visa on 3 February 2014 The applicant applied for a protection visa on 3 February 2014.[3][3] Court book at pages 1 to 32. In his protection visa application, the applicant claimed that he fled Somalia at age 5 during the civil war. Thereafter, he and his family resided in a refugee camp in Kenya, where he feared harm from criminal gangs and police due to his Somali ethnicity.[4][4] Court book at pages 20 to 21. By letter dated 19 March 2015, the applicant, via his representative, was invited to attend a protection visa interview with the Department of Immigration and Border Protection.[5] [5] Court book page 128. On 2 December 2015, the delegate refused the applicant’s application for a protection visa.[6][6] Court book at page 143. Application for review by the Tribunal on 17 December 2015 On 17 December 2015, the applicant sought a review of the delegate’s decision in the Tribunal.[7][7] Court book at pages 162 to 163. By letter dated 6 December 2017, the applicant was invited to attend a hearing before the Tribunal. The hearing was re-scheduled to 8 February 2018.[8] Prior to the Tribunal hearing, the applicant’s representative filed submissions, a statutory declaration, and a statutory declaration by a friend of the applicant’s father.[9][8] Court book at pages 202 and 213. [9] Court book at page 224. The applicant and his representative attended the Tribunal hearing, as well as the applicant’s father who attended by telephone. A Somali interpreter was also in attendance.[10] Subsequent to the hearing, the applicant’s representative lodged a number of documents with the Tribunal, including further submissions, medical reports, identity documents and further protection claim details.[11][10] Court book at page 270. [11] Court book at page 311. On 16 March 2018, the applicant was invited by the Tribunal to respond to adverse information regarding his Kenyan nationality and citizenship, wherein it was suggested that such information ‘may cause the Tribunal to find [he is] a citizen of Kenya and to assess [his] claims against that country’ as well as ‘to doubt the truthfulness of your evidence’.[12][12] Court book at pages 385 and 386. In response to the invitation, the applicant, via his representative, lodged further submissions on 3 April 2018.[13] [13] Court book at page 388. Further documentation obtained by the applicant under the Freedom of Information Act 1982 (Cth) was also lodged with the Tribunal on 8 June 2018, together with further written submissions.[14][14] Court book at page 404.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
By letter dated 20 June 2018, the Tribunal notified the applicant of its decision to affirm the delegate’s decision refusing the applicant’s protection visa.TRIBUNAL DECISION The Tribunal’s decision record is set out at pages 456 to 468 of the court book. At the commencement of its reasons, the Tribunal set out at paragraphs [2] and [3] the applicant’s background and protection claims, before going on to identify the issue before it at paragraph [4], that issue being whether the applicant meets any of the criteria in sections 36(2)(a), (aa), (b) or (c) of the Migration Act 1958 (Cth) (‘the Act’). The Tribunal went on to set out the history of the proceedings before it, including reproducing the invitation sent to the applicant on 16 March 2018 pursuant to section 424A of the Act.[15][15] Tribunal decision record dated 9 June 2018 at paragraph [9]. The Tribunal gave comprehensive consideration to the applicant’s claims and evidence, and ultimately found the applicant’s explanation as to his fraudulent Kenyan identity documents not to be credible and concluded that he was, in fact, a national of Kenya and not Somalia.[16] Consequently, the Tribunal assessed the applicant’s protection claims against Kenya only, although the Tribunal did accept that the applicant was of Somali race and Muslim religion.[17] [16] Tribunal decision record dated 9 June 2018 at paragraphs [17] to [29]. [17] Tribunal decision record dated 9 June 2018 at paragraphs [28] to [33]. The applicant’s race, religion, political opinion and membership of particular social groups, including ‘Somalis living in Kenya’ and ‘persons in Kenya suffering from mental illness’, were considered by the Tribunal, those being the relevant ‘refugee’ criterion under the Refugees Convention and section 36(2)(a) of the Act. Further, the Tribunal considered whether the cumulative effect of these characteristics may result in a real chance that the applicant will suffer serious harm in Kenya. The Tribunal found that it did not.[18][18] Tribunal decision record dated 9 June 2018 at paragraphs [50] to [52]. Similarly, the Tribunal did not accept that the applicant was a person in respect of whom Australia owed protection on complementary protection grounds, by virtue of there being no substantial grounds to believe that upon returning to Kenya, there was a real risk that the applicant would suffer significant harm.[19][19] Tribunal decision record dated 9 June 2018 at paragraphs [53] to [59]. PROCEEDINGS IN THIS COURT On 16 July 2018, the applicant filed his application for judicial review of the Tribunal’s decision. On 14 February 2024, now legally represented, the applicant filed an amended application with two grounds of review, each particularised. By his amended application, the applicant seeks orders: (a)quashing the Tribunal’s decision; (b)directing the Tribunal by a writ of mandamus to determine the applicant’s application according to law; and(c)injuncting the Minister or Department from ‘making the future decision or taking the other action the subject of the proceedings’. GROUNDS OF REVIEW
Ratio Decidendi
Legal Principle Established
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