FIT17 v Minister for Immigration and Anor

[2018] FCCA 1756

FEDERAL CIRCUIT COURT OF AUSTRALIA

FIT17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1756

Catchwords:
MIGRATION – Application for judicial review of decision of Independent Assessment Authority (Authority) affirming decision not to grant temporary protection visa – whether Authority considered applicant’s claims; whether Authority entitled to rely on country information – no jurisdictional error.

PRACTICE & PROCEDURE – Applicant not legally represented – first respondent as model litigant brings to Court’s attention proceedings in other courts and the presenting of a bill into Parliament that may be relevant to the validity of the decision that is the subject of the application for judicial review – judgment given on substantive matters but matter otherwise adjourned subject to liberty to apply on the determination of the other proceedings or the applicant obtaining legal representation.

Legislation:
Migration Act 1958 (Cth), ss.5(1), 5(5)(a), 5AA(2), 36(2)(aa)
Federal Circuit Court Rules 2001 (Cth), rr.12.01, 12.02

Cases cited:
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

Applicant: FIT17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3777 of 2017

Judgment of: Judge Manousaridis

Hearing date: 27 June 2018

Date of Last Submission: 27 June 2018

Delivered at: Sydney

Delivered on: 4 July 2018

REPRESENTATION

Applicant in person, assisted by an interpreter

Counsel for the First Respondent: Mr T Riley

Solicitors for the First Respondents: Australian Government Solicitor

ORDERS

1. Subject to order 3 the proceeding is adjourned generally.

2. Pursuant to r.12.02 of the Federal Circuit Court Rules 2001 (Cth) the applicant be referred to a lawyer for legal assistance.

3. The parties have liberty to apply on such notice as the circumstances warrant.

4. The question of costs is reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3777 of 2017

FIT17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, who is a citizen of Algeria and a Sunni Muslim, seeks judicial review of a decision of the second respondent (Authority) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Temporary Protection visa (TPV).

2. The applicant lodged a claim for a TPV on 24 September 2015. On 31 July 2017 the application was refused by a delegate of the Minister. On 4 August 2017 the matter was referred to the IAA. On 8 November 2017 the IAA affirmed the decision not to grant the applicant a protection visa.

Claims for Protection

1. At his entry interview, the applicant claimed he will be persecuted for security reasons; he will not be protected from terrorism because he had been in the army; he will be persecuted by “both sides” – the government and terrorists -  and the government will not protect him; the applicant will also be persecuted by “the intelligence”, politicians and security people for “security reasons”; and terrorists live in the mountains close to the applicant’s home and they know he used to work in the Army. The applicant further said that he thought he had been followed after he had left the army in 1998 because he (and others) spoke about what was going on in the army. He had been scared to go to his house at that time.

2. In his written application for protection the applicant made the following claims:

   a)He was threatened and harmed by Algerian Islamic fundamentalist groups who tried to force him to join them as they knew he had been a member of the Algerian Special Forces. When he refused to join them they threatened to harm him and his family. He had been kidnapped by Algerian Islamic fundamentalist groups and threatened and beaten by members of those groups.

   b)The Algerian Islamic fundamentalist groups killed his wife’s first husband and his sister-in-law’s father.

   c)The applicant did not report the members of the fundamentalist groups because corruption is rife in Algeria and as the fundamentalist groups are everywhere they would know he had reported them. They would easily find him anywhere in the country through the authorities.

   d)Since the applicant left Algeria the fundamentalists have continued to look for him and question his family members about his whereabouts.

   e)If the applicant returns to Algeria he fears he will be humiliated, mutilated and killed by fundamentalists. His wife will be raped and dishonoured by them.

   f)The applicant also fears he may be imprisoned by the intelligence.

3. At his TPV interview the applicant made the following claims for protection:

   a)He had been threatened because he married someone who was a victim of terrorism - his wife’s former husband had been killed by terrorists, and her former husband’s family did not approve of the marriage. They threatened him while he was in Algeria. One of these men has since died and the other has acquired all his wife’s lands and assets since he came to Australia. His wife is now living alone with nothing. He fears they may still threaten or kill him.

   b)The applicant cannot trust anyone, even people he has known for thirty years. Even if they smile at you they may still kill you.

The Authority’s Decision

1. The Authority accepted the applicant’s claims as to his identity and nationality, and that the applicant departed Algeria legally as the holder of a genuine passport in his own name.

2. The Authority prefaced its consideration of the applicant’s claims by referring to material that indicated the applicant had a history of mental illness, and had been living on the streets right up until his TPV interview; and also referring to the Authority’s having listened carefully to the applicant’s entry and TPV interviews. The Authority found that at the entry interview the applicant’s claims were vague, generalised claims relating to fear of terrorists and the government, and that he was targeted for “security reasons”.[1] It also found that at the TPV interview the applicant had great difficulty staying sufficiently focused to answer questions directly and frequently repeated vague generalised fears or repeated answers he had given to earlier questions even when unrelated. The Authority said it did not share the delegate’s perception that, during his interview with the delegate, the applicant was able to put forward his claims in a consistent manner and able to respond to questions coherently. For these reasons, the Authority found it was difficult to determine what risk of significant harm the applicant feared; and it further found that although it appeared clear the applicant’s fear was genuine, it was not clear whether that was the result of mental illness or real incidents that occurred. Given these findings, the Authority proceeded to make findings based on “some internal consistencies in the applicant’s evidence”.

   [1] CB181, [10]

3. The Authority considered the applicant made claims for protection both on the basis that he was a refugee within the meaning of s.5H(1) of the Migration Act 1958 (Cth) (Act), and on the basis of the complementary protection criterion provided for by s.36(2)(aa) of the Act. As to the applicant’s claim based on his being a refugee, the Authority considered the applicant claimed fear of four types of harm, these being harm by terrorist groups because he was a former member of the military who fought and possibly killed members of Islamic rebel groups during the civil war in the 1990s; harm from members of the applicant’s wife’s family or the applicant’s wife’s former husband’s family members; harm from security or other governmental entities and harm the applicant may suffer as a failed asylum seeker or as a person who is involuntarily returned to Algeria.

4. As to the claim based on harm from terrorists, the Authority accepted the applicant was in Army service in Algeria between 1992 and 1998, during the civil war; that he was a member of the Special Forces Unit – parachute squad; that he was not of a high rank, and he was involved in armed conflict where he shot and killed people, who he insisted were terrorists. The Authority was satisfied that the applicant fought against fundamentalist Islamic rebel groups during his service in the army between 1992 and 1998; and that terrorist groups still exist in Algeria. The Authority, however, found that the applicant’s fear of harm from terrorists was not well-founded. First, although it accepted terrorist groups still exist in Algeria, the authorities have been able to provide sufficient protection in Algerian cities against armed groups. Second, the applicant did not claim he suffered any harm or received any specific threats from terrorists or terrorist groups since he was discharged from the army in 1998. For those reasons the Authority found there was no real chance the applicant will suffer serious harm for reasons of belonging to a particular social group, that group being former members of the military who fought against and possibly killed members of the Islamic rebel groups during the civil war.[2]

   [2] CB182, [15]

5. As to the claimed fear of harm from the applicant’s wife’s family or the applicant’s wife’s former husband’s family members, the Authority accepted the applicant married a woman approximately 13 years older than himself in 2004; that his wife had assets and some wealth in her name as a result of inheritance, and that her former husband’s brothers were consequently unhappy about the marriage and the fact that the applicant had rights to her land by marriage; the applicant’s wife’s former brothers-in-law threatened him; and that one of these men died recently and the other had gone to court and obtained his wife’s assets. The Authority was satisfied that the applicant’s personal “family troubles” with his wife’s former in-laws was the primary reason the applicant departed Algeria. The Authority found, however, that the “threats” to the applicant have now been largely resolved. The basis of that finding is the Authority’s findings that one of the applicant’s wife’s former in-laws died and the other has obtained the wife’s assets.

6. As to the claimed fear from security services or other government agencies, the Authority found that, having been able to obtain a passport and depart Algeria by plane without difficulty, the applicant was not of adverse interest to the authorities or the intelligence or security bodies in Algeria at the time the applicant departed Algeria. In those circumstances, and given the Authority was of the view the applicant was unable to articulate in any of his claims why security intelligence of the government wanted to prosecute him, and he had not claimed he suffered any harm from any of these bodies, the Authority was satisfied there was no real chance the applicant will suffer serious harm from any government authorities for any reason if he were to be returned to Algeria now or in the foreseeable future.

7. Finally, relying on country information, the Authority concluded there was no real chance the applicant will suffer serious harm on his return to Algeria if he is returned involuntarily from Australia as a failed asylum seeker.

8. The Authority then considered whether the applicant satisfied the complementary protection criterion provided for by s.36(2)(a) of the Act. In that regard, the Authority referred to findings it had already made when assessing whether the applicant was a refugee and on the basis of those findings found there is no real risk the applicant will suffer significant harm on his return. Further, in relation to the fear of harm from the applicant’s wife’s former in-laws, the Authority found that even if there was a real risk of harm from the in-laws, it was reasonable that the applicant should relocate within Algeria, such as to Algiers, where one of the applicant’s brother lives.

9. The Authority also considered whether the applicant faced a real risk of significant harm because of some physical issues and his ongoing mental health issues. The Authority referred to country information that showed the Algerian government provides free medical care for all of its citizens, albeit in generally rudimentary facilities. As for mental health, the Authority noted that although the majority of primary healthcare doctors have received official in-service training on mental health within the last five years, officially approved manuals on the management and treatment of mental disorders are not available in the majority of health clinics. The Authority further noted, however, that there are official referral procedures for referring persons from primary care to secondary or tertiary care; and that in 2001 Algeria acted on the international recommendations published by the World Health organisation by developing a national mental health program. Under that program a network of intermediate mental health centres has appeared. The Authority found these centres are designed to afford enhanced access to services and more effective medication management. The Authority also found that, although there is a strong social stigma attached to persons with mental illness, treatment for severe mental illness is available in psychiatric hospitals and medications are available.

10. The Authority found there was no evidence to indicate the applicant will be denied medication or access to health care in Algeria. The Authority in any event found that to amount to significant injury, any claim based on the inadequacy of medical treatment in Algeria or unavailability or high cost of medication would have to arise due to an intention to inflict either pain or suffering or to cause extreme humiliation. The Authority found there was no evidence to suggest this would occur in the case of the applicant.

11. For these reasons, the Authority found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country there is a real risk the applicant will suffer significant harm and, for that reason, the applicant did not satisfy s.36(2)(aa).

Grounds of Application

1. The applicant’s ground of application is as follows (errors in original):

   I don’t believe my claims for refugee status were correctly considered.

2. The applicant also made the following claim in the affidavit he filed with his application:

   The IAA’s conclusions concerning country information were not reasonably formed on the basis of the evidence (Attachment ‘A’)

Course of judicial review hearing

1. At the stage where I invited the applicant to make submissions, I understood the applicant to have said the Authority’s decision had not been explained to him. After further exchanges, the applicant said the Authority’s decision had been explained to him, but he could not remember exactly what had been explained. The applicant, however, confirmed to me that the Minister’s written submissions (which set out in some detail the Authority’s decision) had been interpreted to him before the hearing before me commenced.

2. The applicant initially said he did not understand why the Authority refused to grant the applicant protection. I explained to the applicant that the Authority accepted the applicant feared harm, but it concluded the harm was not well-founded; that the applicant did not face a real risk of harm. The applicant then submitted that he would not have left his country had he not faced danger; he referred to two of his friends having been imprisoned; it was a miracle he was able to leave Algeria, noting that a friend who held the position of colonel had assisted him. I asked the applicant why he claimed the Authority was wrong in concluding that although he had a genuine fear of harm the applicant did not face a real risk of harm. The applicant said he knows his country; he was with the intelligence and the army, and if one opposed these institutions they would cut off your hand. The applicant also said he does not have a lawyer and he does not know legal things.

3. I then directed the applicant’s attention to the ground set out in the application. The applicant said the Authority did not study his application properly. The applicant also said that he was before the delegate by himself, that he felt scared, and he did not know the law. In relation to the ground stated in his affidavit, the applicant said what he there stated was correct; and that he “gave them” evidence about the army and the situation in Algeria. The applicant added he did not know about the law, and he did not have a lawyer to explain the law to him.

Jurisdictional error?

1. The ground stated in the application seeks merits review. To the extent it should be read as a claim the Authority did not consider or properly consider the applicant’s claims, the ground cannot succeed. It is apparent from my summary of the Authority’s reasons that it reviewed the material before it, identified the claims that were reasonably capable of arising from the material, and considered each of those claims. It is also apparent that the Authority’s conclusions were reasonably open to it for the reasons it gave.

2. The ground stated in the applicant’s affidavit seems to contend the Authority relied on country information when it ought to have relied on the evidence the applicant gave. That ground goes no further than expressing disagreement with the Authority’s use of country information and the Authority’s findings based on the country information on which it relied. There can be no objection to the Authority relying on country information for the same reasons the Full Court of the Federal Court of Australia in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs found there could be no objection to the Refugee Review Tribunal in that case relying on country information:[3]

   There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. . . . . It is not . . . an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review.

   [3] [2004] FCAFC 10, at [11]

3. None of the other matters the applicant mentioned to me at the hearing discloses any jurisdictional error. Much of what the applicant said related to his fear of returning to Algeria. That the applicant was afraid or nervous before the delegate is not a matter that can be the subject of review by this Court unless it can be said that what occurred before the delegate was relevant to whether the Authority itself made any jurisdictional error. There is nothing in the material before me, however, that could reasonably suggest the Authority made any jurisdictional error because of what occurred or did not occur before the delegate. As I have already noted, the Authority listened to the applicant’s entry and TPV interviews, and made findings about the applicant’s ability to understand and answer questions. There is nothing to suggest the Authority’s findings were not reasonably open to it.

4. For these reasons, the matters on which the applicant relies do not disclose any jurisdictional error by the Authority, and, subject to what I say in the next section of these reasons, the application should be dismissed.

Ashmore Island proclaimed port issue

1. In his written submissions the Minister brought to the Court’s attention two matters that are presently reserved in this Court, and another matter that has been referred to the Full Court of the Federal Court of Australia, in which, as stated by the Minister in his submissions, “the proclaimed port of Ashmore and Cartier Island” is being challenged. The Minister also brought to the Court’s attention the Migration (Validation of Port Appointment) Bill (Bill) which has been introduced into Parliament. The matters that are before the Court and before the Full Court of the Federal Court of Australia relate to what cl.3(1) of the Bill describes as “the appointment of an area of waters within the Territory of Ashmore and Cartier Islands under paragraph 5(5)(a) of the Migration Act 1958 by notice published in the Gazette on 23 January 2002” (Appointment).

1. These matters are potentially relevant to the applicant’s circumstances. To see why, it is necessary to refer to the definition of “fast track applicant” given in the Act. That is so because the applicant has been treated as a “fast track applicant”; and it is his being so characterised by the Minister that led to the Minister referring to the Authority the delegate’s decision not to grant the applicant a TPV.

2. “Fast track applicant” is defined in s.5(1) of the Act. One element of the definition is that the person “is an unauthorised maritime arrival . . . who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing centre”. The expression “unauthorised maritime arrival” is defined in s.5AA of the Act, one element of which is that the person “entered Australia by sea . . . at an excised offshore place”. “Excised offshore place” is defined in s.5 to mean, among other places, the “Territory of Ashmore and Cartier Islands”. Under s.5AA(2) of the Act a person “entered Australia by sea” if, among other things, the person “entered the migration zone except on an aircraft that landed in the migration zone”. The expression “migration zone” is defined in s.5(1) of the Act to mean:

   the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes:

   (a)land that is part of a State or Territory at mean and low water mark; and

   (b)sea within the limits of both a State and territory and a port; and

   (c)piers, or similar structures, any part of which is connected to such land or to ground under such sea;

   but does not include sea within the limits of a State or Territory but not in a port.

3. Next, it is necessary to refer to “port”. That is defined to mean a “proclaimed port” or a “proclaimed airport”. “Proclaimed port” is defined in s.5(1) of the Act to mean two things, one of which is “a port appointed by the Minister under subsection 5”. Subsection 5(5)(a) of the Act provides that the Minister may, by notice published in the Gazette, “appoint ports in an external Territory to which this Act extends as proclaimed ports for the purposes of this Act and fix the limits of those ports”.

4. The potential relevance of the challenge to the Appointment may now be stated. From the bar table the applicant stated that he and one other person travelled by boat from Indonesia; that he and the other person surrendered themselves to officials who managed an Australian vessel at Ashmore Island; that he and the other person were taken on board the Australian vessel; and, after a four day voyage, the applicant and the other person arrived in Darwin. I understood the Minister to accept that what the applicant said from the bar table is correct. Thus if, as appears to be claimed in the matters that are reserved in this Court, and in the matter that has been referred to Full Federal Court, the Appointment is invalid, and that claim is upheld by the Full Federal Court, it may be the applicant will have reasonable grounds for contending he is not an “unauthorised maritime arrival” and, therefore, not a “fast track applicant”. That, in turn, may have consequences for the validity of the Authority’s decision that is the subject of this proceeding.

5. I should also note the relevant provisions of the Bill. The first is cl.3, which is as follows:

   (1)This section applies in relation to the appointment of an area of waters within the Territory of Ashmore and Cartier Islands under paragraph 5(5)(a) of the Migration Act 1958 by notice published in the Gazette on 23 January 2002.

   (2)The appointment has, and is taken always to have had, effect as if all of the words from and including “the area of waters” to and including “point of commencement.” were omitted and the following words were substituted:

   the area of waters within the Territory of Ashmore and Cartier Islands commencing at a point on the Mean Low Water (MLW) line closest to Latitude 12 degrees 13.2 minutes South, Longitude 122 degrees 59.0 minutes East, then following the line of MLW in an anticlockwise direction so as to enclose a bay by bridging across islands of MLW at the entrance to the bay to close back to the point of commencement.

   (3)The Migration Act 1958 has, and is taken always to have had, effect as if the area of waters specified in the appointment (as affected by subsection (2)) were a port for the purposes of that Act.

   (4)This section does not, by implication, prevent amendment or revocation of the appointment.

6. Also relevant is cl.5 of the Bill which is as follows:

   This Act does not affect rights or liabilities arising between parties to proceedings in which judgment has been delivered by a court before the commencement of this Act, if:

   (a)the validity of the appointment referred to in subsection 3(1) was at issue in the proceedings; and

   (b)the judgment set aside the appointment or declared it to be invalid.

7. At the end of the hearing before me I indicated that although I was otherwise in a position to give judgment on the matters raised in the application and at the hearing, I proposed to reserve judgment to consider how I should proceed given there are proceedings on foot challenging the validity of the Application, and the Bill has been introduced into Parliament.

8. I have considered how to proceed, and have concluded that this is an appropriate matter for me to exercise the power conferred by r.12.02 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) and refer the applicant to a lawyer for legal assistance by issuing a referral certificate as contemplated by that rule. In those circumstances, I propose to order that the matter stand over generally, order that the matter be referred to a lawyer for legal assistance, and reserve liberty to the parties to apply. The liberty may be exercised for any reason. There are, however, two circumstances in which I contemplate the liberty to apply may be exercised. One is if as a result of the referral under r.12.01 of the FCC Rules, the applicant obtains legal assistance. The other is if the Bill is enacted into law or after the Full Federal Court gives judgment on the challenge to the Appointment, whichever occurs first. I also reserve to myself the option of relisting the matter for any reason.

Disposition

1. I will adjourn the matter generally, make an order referring the matter for legal assistance, and reserve to the parties liberty to apply on such notice as the circumstances warrant. I will reserve the question of costs.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  4 July 2018