EZA17 v Minister for Immigration

[2018] FCCA 394

FEDERAL CIRCUIT COURT OF AUSTRALIA

EZA17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 394

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.499, 501

Federal Circuit Court Rules 2001 (Cth)

Cases cited:

Minister for Immigration v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114
NABE v Minister for Immigration (No. 2) (2004) 144 FCR 1
NAHI v Minister for Immigration [2004] FCAFC 10
NBKT v Minister for Immigration [2006] FCAFC 195
Re Minister for Immigration; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441
S395/2002 v Minister for Immigration 216 CLR 473; [2003] HCA 71

SZNOE v Minister for Immigration [2012] FCA 96

Applicant: EZA17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3474 of 2017

Judgment of: Judge Driver

Hearing date: 20 February 2018

Delivered at: Sydney

Delivered on: 20 February 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms J Strugnell of Minter Ellison

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application 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 $3,667, in accordance with item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3474 of 2017

EZA17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 10 October 2017.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.

2. Background facts relating to the applicant’s claims for protection and the decision of the Tribunal on them are conveniently set out in the Minister’s outline of submissions filed on 13 February 2018. 

3. The applicant is a citizen of Fiji, who arrived in Australia on 7 December 1987 as a two year old child. He was subsequently granted a return (Residence) (Class BB) (subclass 155) visa. On 6 January 2016 the applicant's visa was cancelled on character grounds pursuant to s.501(3A) of the Migration Act 1958 (Cth) (Migration Act). There does not appear to have been any merits or judicial review of that decision. The applicant applied for a protection (Class XA) visa on 20 July 2017.[1]

   [1] court book (CB) 1–37

4. On 2 August 2017 the delegate refused to grant the applicant a protection visa.[2]  The applicant sought review of the delegate's decision before the Tribunal by application received on 10 August 2017.[3] The applicant appeared at a hearing before the Tribunal on 22 September 2017.[4]

   [2] CB 53–61

   [3] CB 65–73

   [4] CB 100–102

5. The Tribunal made its decision on 10 October 2017, affirming the decision not to grant the applicant a protection visa.[5]

   [5] CB 129–141

Applicant’s claims

1. The applicant claimed to fear harm in Fiji because he has no family there, does not speak Fijian, will not be able to obtain work and will end up homeless. He also claimed to suffer from schizophrenia. Further, the applicant's mother gave evidence that the applicant's paternal grandfather was Chinese and was concerned this may be adverse to the applicant.

Tribunal decision

1. The Tribunal rejected the applicant's claims because they were not well-founded. The Tribunal made the following key findings:

   a)it found there was no real chance the applicant would suffer serious or significant harm in Fiji because of his inability to speak Fijian, because English is an official language of Fiji;[6]

   b)it accepted that the applicant has no family in Fiji;[7]

   c)despite a lack of any supporting medical evidence, it accepted that the applicant suffers depression and schizophrenia;[8]

   d)on the basis of country information,[9] it found that the applicant could access financial support, housing, health care and counselling such that there was no real chance he would become homeless;[10] and

   e)on the basis of country information, it did not accept the applicant would face harm as a result of his grandfather's Chinese ethnicity.[11]

   [6] CB 133: [26]

   [7] CB 133: [27]

   [8] CB 134: [28]

   [9] CB 134: [30]; attachment B to Tribunal decision

   [10] CB 135: [36]

   [11] CB 135: [37]

2. For these reasons, and having considered the applicant's claims individually and cumulatively, the Tribunal concluded the applicant did not satisfy the refugee criterion.[12]  For the same reasons, the Tribunal was not satisfied that the applicant met the complementary protection criterion.[13]

   [12] CB 136: [38]

   [13] CB 136: [39]

The present proceedings

1. These proceedings began with a show cause application filed on 13 November 2017.  The applicant continues to rely upon that application.  There are two grounds in the application:

   1. The Second Respondent has reached a mistaken conclusion and failed to consider relevant material in determining whether the [applicant’s] mental health will be adequately cared for by assessing the welfare assistance and health services in Fiji to be suitable.

   Particulars

   a) The second respondent does not specifically reference any country information relating to mental health issues and only reviews the health services in Fiji in a general sense.

   2. The Second Respondent has failed to identify the applicant as a member of a Social Group, being Fijian nationals with mental health issues.

   Particulars

   a) By failing to acknowledge the applicant falls within this social group, the second respondent has not correctly assessed the claims against the relevant criteria.

2. I have before me as evidence the applicant’s affidavit filed with the application and the court book filed on 11 December 2017. 

3. The applicant makes two assertions.  The first is that the Tribunal reached a mistaken conclusion and failed to consider relevant material in dealing with his mental health claims.  The second is that the Tribunal failed to identify the applicant as a member of a social group being Fijian nationals with mental health issues. 

4. On my perusal of the Tribunal decision, nothing was overlooked by the Tribunal.  All of the applicant’s claims for protection were addressed in the Tribunal’s reasons.  The Tribunal specifically dealt with the applicant’s claims to fear harm because of his mental health condition.  The Tribunal accepted that the applicant suffers from schizophrenia, but found that appropriate services would be available in Fiji for him.  Having considered the applicant’s mental health issues in respect of his claims as an individual, there was no need for the Tribunal to go on to consider the applicant’s claims as a member of a hypothetical class of persons who held the same attribute as the applicant.  In particular, I accept the following propositions.

5. In my opinion, the Tribunal followed a fair process in order to deal with the applicant’s claims and considered all of the material before it.  I otherwise agree with the Minister’s submissions concerning the grounds of review advanced by the applicant. 

Ground 1

1. The Tribunal made findings that were open to it, noting:

   a)the choice and assessment of country information is a matter for the Tribunal;[14]

   b)the Tribunal was bound to take into account relevant country information assessments prepared by DFAT to the extent they are relevant;[15]

   c)this is not a case where the Tribunal has failed to have regard to the most up to date country information;[16] and

   d)in any event, the country information specifically refers to mental health services and the availability of medications used to treat schizophrenia and related conditions.[17]

   [14] NAHI v Minister for Immigration [2004] FCAFC 10 at [13]

   [15] at [11]; (Ministerial Direction 56 and s.499 of the Migration Act)

   [16] Minister for Immigration v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114

   [17] Tribunal decision, page 12

Ground 2

1. The Tribunal considered the applicant's claims and evidence and made findings that were open to it. The applicant did not claim to be part of the now asserted social group, and appears to be retrospectively recasting his claims.[18]

   [18] Re Minister for Immigration; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441 at [31]; NABE v Minister for Immigration (No. 2) (2004) 144 FCR 1 at [62]; and NBKT v Minister for Immigration [2006] FCAFC 195 at [73]; S395/2002 v Minister for Immigration 216 CLR 473; [2003] HCA 71 at [1]

2. Nevertheless, the Tribunal considered whether the applicant would face serious or significant harm for reason of his mental illness.[19]  The Tribunal also noted country information which indicated the applicant would have access to welfare, housing and free health care to people with mental illness.[20]  As a result, it found that while the applicant may suffer some stigma due to his mental illness, such stigma would not give rise to serious or significant harm.[21]

   [19] CB 134–135: [29]–[36]

   [20] CB 134: [30]

   [21] CB 134: [32], CB 135: [35]

3. In circumstances where the Tribunal has found that the applicant's claims are not well-founded, it does not need to determine whether any claimed particular social groups exist.[22]

   [22] SZNOE v Minister for Immigration [2012] FCA 96 at [78]

4. I conclude that the application should be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), and I so order.

5. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale as it applied at the time when the application was filed.  The applicant claims impecuniosity, but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.

6. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 22 February 2018