FOH18 v Minister for Home Affairs
[2020] FCCA 173
•3 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FOH18 v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 173 |
| Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether Tribunal denied applicant procedural fairness – whether Tribunal erred in the assessment of the applicant’s claims and country information – no jurisdictional error – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), pt.12, r.12.02 |
| Cases cited: ADF15 v Minister for Immigration & Border Protection [2018] FCA 1099 Fuller v Toms & Ors [2012] FCA 27 Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 |
| Applicant: | FOH18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 3156 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 30 January 2020 |
| Date of Last Submission: | 30 January 2020 |
| Delivered at: | Perth |
| Delivered on: | 3 February 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms G Ellis |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
MLG 3156 of 2018
| FOH18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed in this Court on 18 October 2018 the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 5 October 2018.
The Tribunal affirmed a decision of a delegate of the first respondent (the “Minister”) not to grant the applicant a Protection (class XA) Protection (subclass 866) visa (the “visa”) to the applicant.
This proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must satisfy the Court that the Tribunal fell into jurisdictional error.
The Court had the following materials before it: the application for judicial review, an affidavit from the applicant affirmed 17 October 2018, a Court Book (“CB”) numbering 180 pages (marked as Exhibit 1) and an outline of written submissions from the Minister dated 5 November 2019.
The applicant filed two further affidavits in these proceeding. One was affirmed by himself on 17 July 2019. Another was affirmed by his wife on 16 July 2019. For reasons explained below, both of those affidavits are inadmissible and will not be considered.
This matter was originally listed for hearing on 27 November 2019. On that occasion, the Court was not satisfied with the quality of interpretation and determined that it would not be appropriate to continue.
The matter returned to the Court on 30 January 2020. The applicant appeared before the Court without legal representation. He was assisted by an interpreter in the Punjabi language. The Court also allowed the applicant’s cousin to sit with him at the hearing and provide assurance and assistance. Any communications between the applicant’s cousin and the applicant were interpreted to the Court.
The Court confirmed with the applicant at the commencement of the hearing that he had received a copy of the Court Book and the Minister’s written submissions. He indicated that he had received both documents.
Background
The Minister’s submissions at [3]-[10] accurately summarise the factual background to this matter. The Court adopts this summary as its own, with some additions, as follows.
The applicant, a citizen of India, arrived in Australia on 22 November 2015 as the holder of a Visitor (Class FA) (Subclass 600) visa (CB 55). This visa expired on 22 February 2016. On 18 April 2018, the applicant was detained in immigration detention.
On 27 April 2018, the applicant applied for the visa relevant to these proceedings (CB 1-30). The delegate summarised the applicant’s claims as follows (CB 56):
• He is a member of a political party, Shiromani Akali Dal.
• Members of this party have been persecuted for their religious beliefs and political views.
• The applicant was personally targeted for his membership of Shiromani Akali Dal.
• The applicant has been in hiding by cutting his hair to hide his identity, which is against his religion.
• The applicant has experienced harm and persecution including but not limited to torture, threats of death and injury, death, assault and unlawful detention.
• The applicant claims he sought assistance from the local authorities and international human rights organisations.
• The applicant attempted to migrate to Delhi, Mumbai and other places however the applicant still faced fears and experienced harm and persecution.
• If the applicant returns to India he will most likely face persecution and harm because of his association to Shiromani Akali Dal and due to his religious beliefs.
• The applicant could face harm and persecution including but not limited to torture, threats of death and injury, death, assault and unlawful detention.
• The authorities have participated in the persecution and harm of the applicant and his party members.
The applicant was invited to attend an interview with the delegate on 11 May 2018. The applicant attended the interview but the interview was terminated as the “applicant was not answering questions and appeared to be upset”. The applicant consented to a letter being sent to him so that he might respond to concerns in relation to his application (CB 56). A letter was sent to the applicant that same day raising matters that might be the reason, or part of the reason, for refusing to grant the visa (CB 40-43).
On 16 May 2018, the applicant’s then representative provided written submissions to the delegate. Those submissions responded to the matters raised in the letter and the applicant’s claim generally (CB 44-51).
On 21 May 2018, the delegate refused to grant the applicant the visa. The delegate was not satisfied that the applicant would face serious or significant harm for the reasons claimed or any other reason (CB 55-63).
On 23 May 2018, the applicant lodged an application for review of the delegate’s decision with the Tribunal (CB 67-68).
At the applicant’s request a hearing before the Tribunal scheduled for 22 July 2018 was moved to 3 August 2018. Further, the applicant’s representative was provided an extension of time in which to file submissions.
On 30 July 2018, the applicant’s representative advised that they no longer acted for the applicant (CB 89).
On 3 August 2018, the applicant appeared before the Tribunal to give evidence and present arguments. He did so with the assistance of a Punjabi interpreter (CB 98).
On 14 August 2018, the applicant provided further supporting material to the Tribunal (CB 103-162).
On 5 October 2018, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (CB 166).
Tribunal’s Decision
The Tribunal’s decision is 10 pages long and spans 35 paragraphs. The decision can be summarised as follows.
At [1]-[2], the Tribunal summarised the background to the matter. It was noted that the delegate had refused the visa because the delegate was not satisfied that the applicant would suffer serious harm for the reasons claimed, or for any other reason, if he were to return to India.
At [3]-[8], the Tribunal outlined the relevant legislative and legal principles. It also noted the relevant Ministerial Direction made under s.499 of the Act (which it was required to have regard to when considering the application).
At [9], the Tribunal noted that the issue before it was whether the applicant met the criterion in s.36(2)(a) or (aa) of the Act.
At [11]-[13], the Tribunal summarised the applicant’s claims. It confirmed that the applicant had attended the hearing on 3 August 2018 and that the Tribunal had received written submissions on 14 August 2018.
At [14]-[15], the Tribunal made the following findings with respect to the documentary evidence (a letter from the office secretary of the Shiromani Akali Dal Armritsar (“SAD(A))”) dated 4 August 2018 and a copy of the applicant’s membership card and photographs) that the applicant had provided to the Tribunal:
a)the Tribunal accorded no weight to the photographs due to their poor quality and because they were “uncaptioned”;
b)notwithstanding the doubtful provenance of the applicant’s SAD(A) membership card and concerns the Tribunal had with it, the Tribunal accorded limited weight in favour of it as supporting the claim that the applicant was a member of SAD(A); and
c)the Tribunal found the letter from SAD(A) to be of limited assistance to the applicant’s claims, noting there was no detail within it regarding any ill treatment of the applicant.
The Tribunal found the applicant’s oral evidence regarding his knowledge of SAD(A) to be “scant” (CB 169 at [16]) and found the applicant’s explanation for not being aware of certain matters to be implausible.
The Tribunal considered the applicant’s claims that he was beaten by police at his home in 2014 or 2015, that his son witnessed this and that he was subsequently diagnosed with depression. The Tribunal found that the applicant’s oral evidence about this claim was inconsistent with the account he provided to the Department and was also at odds with the affidavits provided by neighbours and family members. Accordingly, the Tribunal found the applicant’s claims lacked credibility (CB 169 at [17]).
The Tribunal considered the medical evidence provided by the applicant about his son, finding that the evidence made no reference to any physical injuries or psychological syndrome said to have arisen from witnessing the claimed events (CB 169 at [18]).
At [19], the Tribunal stated:
19. I have had regard to the significant lapse in time between [the applicant’s] entry to Australia and the making of his protection visa application. This is a legitimate matter for consideration in assessing the genuineness or extent of an applicant’s fear of persecution: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346 per Heerey J at 349. His explanation was that he suffered from depression over this period and did not know who to ask. He said that he did not feel that he knew his cousin well enough to ask for advice of this nature. I note that this is the first time he has raised the issue of depression in this context and, in relation to his cousin’s ability to assist, that the Tribunal in fact received a letter of support and other documents from the cousin. The cousin’s own explanation was that the applicant and his family were not aware that such a visa existed before the applicant was taken into detention, and that the applicant sought to conceal his persecution fears from the Australian authorities because they would be disclosed to Indian police. This latter theory was not advanced by the applicant at the hearing and I discount it. The applicant has provided a medical opinion which notes a mixed anxiety and depressive disorder. The psychiatric summary also notes inconsistencies in the history presented by the applicant and a belief that he is obfuscating. I have taken the applicant’s mental health condition into account and consider that it may have contributed to the delay in making his application. The weight to which I might have given the delay is reduced accordingly but, on balance, the length of the delay and the implausibility of his other explanations still weigh against the credibility of his claim
The Tribunal accepted that the applicant was an adherent of the Sikh religion and identified as a Sikh (CB 170 at [20]).
The Tribunal then gave careful consideration to the relevant country information on the position of Sikhs and the SAD(A) in India (CB 170-171 at [21]-[30]).
At [31], the Tribunal found as follows:
On the basis of the evidence, submissions and country information before me:
(a)I am satisfied, but not without serious reservations, that [the applicant] had some low-level involvement with SAD(A), but this was of limited duration and has not been maintained;
(b) I am not satisfied that [the applicant] was subjected to persecution or harm by reason of his membership of the SAD(A), or that his son’s condition came about as a result of any such treatment;
(c) I am not satisfied that [the applicant] faces a real chance of persecution in India by reason of his membership or affiliation with SAD(A), and that any fear he holds in that respect is not well-founded;
(d) I am not satisfied that [the applicant] faces a real chance of persecution in India by reason of his ostensible adherence to the Sikh religion, and that any fear he holds in that respect is not well-founded; and,
(e) Accordingly, I am not satisfied that [the applicant] is a refugee as defined by s. 5H(1) of the Act.
Overall, the Tribunal was not satisfied that the applicant met the criterion of s.36(2)(a) of the Act. Nor was the Tribunal satisfied that the applicant met the requirements of s.36(2)(aa) of the Act.
The delegate’s decision was, accordingly, affirmed.
Preliminary Matters
The Court notes that in his application the applicant sought the following interlocutory orders:
1.A writ of certiorari to issue an order Pursuant to Reg4.12 Federal court rules 2011 (Cth) referring the applicant for legal assistance on pro-bono basis to act on my behalf as I am unrepresented and currently being held at MIT A detention centre.
2. An order from the court to provide me the interpreter assistance of the Punjabi as my limited and vague proficiency in English language.
The applicant did not indicate that he pressed these orders.
The Court makes the following observations in any event in respect of the first order sought:
a)a person cannot apply for a referral under r.12.02 of the Federal Circuit Court Rules 2001 (Cth) (the “Rules”). Nor does any referral the Court may provide require an order: Fuller v Toms & Ors [2012] FCA 27 at [94]. A referral is an administrative act. Hence, an “order” for pro-bono assistance is of little utility per se;
b)in the context of proceedings in this Court, the applicant appears to be seeking a referral for pro-bono assistance in accordance with part 12 of the Rules. A referral under r.12.02 requires the Court to take into account and weigh the factors in r.12.02(2) to determine if a referral should issue;
c)the first reason the applicant provided as to why he should receive a pro-bono referral was that he was unrepresented. The mere fact that a party is unrepresented is not a sufficient reason to itself warrant a referral for legal assistance: ADF15 v Minister for Immigration & Border Protection [2018] FCA 1099 at [29];
d)the second reason was that the applicant was in detention. While the Court is sympathetic, many applicants that appear before this Court are, regrettably, detained. Here, it is also the case that the applicant is no longer in detention and was able to seek legal assistance if he wished to do so and without any apparent obstacles; and
e)where an applicant is unrepresented and may not have adequate knowledge and an ability to prepare for, or understand, what is required of them, the Court remains astute to the possibility of legal error in the Tribunal’s decision and will raise any such matters with the Minister if necessary: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
As for order 2, the Court need only note that in every matter where an applicant is unrepresented and does not speak English, the Court will provide an interpreter in the applicant’s native language to ensure that the applicant can participate.
As outlined above, the Court was not satisfied with the quality of interpretation at the start of the hearing on 27 November 2019 and immediately adjourned.
At the hearing on 30 January 2020, the applicant was assisted by a different interpreter in the Punjabi language who appeared in person. No issue was raised by the applicant with the interpretation service provided. The Court is satisfied that the interpretation services provided were of a very high quality and that, as a result, the applicant was able to meaningfully participate.
Judicial Review Application
The application for judicial review does not contain any grounds of review. It simply refers to the applicant’s affidavit sworn/affirmed on 17 October 2018. That affidavit provides (in full):
1. That I am the main applicant in this migration litigation
2. All the information provided in the forms, affidavits and proceeding is true and valid
3. The application should be considered according to the law.
4. The decision of the AAT made on 5th October 2018 should be quashed.
5. The respondent in making the decision did not comply with rules of natural justice and I the applicant was denied procedural fairness.
6. The Second respondent decision included the error of the law.
7. The Second Respondent took in account irrelevant considerations.
8. The Second Respondent decision was unreasonable.
9. The Second Respondent failed to took in account the relevant considerations.
10. The decision of the respondent failed meets the refugee law when making the decision.
11. I believe the tribunal made an error in coming to its decision due to my inability to prepare and present a proper case and therefore a meaningful opportunity to be heard by denying me procedural fairness.
12. The Second respondent also made an error by finding that I do not engage the protections afforded at s.36 (2) (a) of the act therefore misapplying and misconstrued the s.36(2) (a) and s.36(2)(aa).
13. The Second respondent has not considered each of the integers of my claims of the serious harm discussed with respects to my claims for refugees protection in the context of the complementary protection criterion regarding the real of significant harm at s.36(2)(aa).
14. The Second respondents conclusion in making the decision is vague and is without considering the facts of my country report information.
15. The acknowledged difficulties of preparing and presenting my case I am from a different social, ethnic and cultural background and the difficulties I have with English language. Moreover, I believe the decision maker misinterpreted their obligations to consider representations I made for mitigate my offending behaviour as non-refoulement obligations.
In orders made 2 April 2019 the applicant was provided an opportunity to file any amended application, affidavit evidence and written submissions prior to a hearing listed on 5 June 2019. No materials were filed.
The applicant sought an extension of time to provide materials and an adjournment of the hearing. Orders were made on 7 May 2019 allowing an adjournment and an additional opportunity for the applicant to file an amended application, further evidence and submissions. As noted, the applicant filed two further affidavits which will be addressed below.
It is usually appropriate for an unrepresented party to be afforded an opportunity to explain orally the matters that are said to give rise to an appeal (or review) ground: DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8].
To assist the applicant, the Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision maker fails to consider the entirety of an applicant’s claims (or “integers” of the claims) as made: Minister for Immigration & Citizenship v SZRKT (2013) 302 ALR 572 at [111] (“SZRKT”);
f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2] (“SZRUI”); and
g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131] (“SZMDS”); Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28] (“Li”); Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
The Court also explained to the applicant that this Court cannot undertake a “merits review” of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. This Court cannot grant him the visa he seeks. Rather, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above.
Against this background the applicant was asked to explain what he thought the Tribunal “did wrong”. In effect, he stated that the interpreters that were used during his interviews appeared by telephone, were inadequate and did not properly interpret what was said by him. He also indicated that he was in detention at the time of the hearing and his mental health was suffering. The Court will address these submissions below.
Affidavit Materials
The applicant filed two further affidavits in these proceedings. The Minister opposed those affidavits being read into evidence. Having reviewed those materials, the Court advised the applicant that the affidavits were not admissible. The Court’s reasons for doing so are as follows.
The affidavit of the applicant’s wife affirmed 16 July 2019 indicates that there was an error in a previous affidavit the wife had provided to the Tribunal. The affidavit filed in this Court asks that the affidavit that was before the Tribunal be “ignored”.
The wife’s affidavit (before this Court) was not before the Tribunal. Further, the affidavit appears to have been provided in an effort to demonstrate an error of fact made by the Tribunal or to invite the Court to make a finding contradicting a finding made by the Tribunal based on the new evidence. The Court cannot admit evidence for this purpose: Waterford v Commonwealth (1987) 163 CLR 54 at 77-78; Tesic v Minister for Immigration [2017] FCAFC 93 at [55].
Further, the “error” the wife’s affidavit seeks to remedy would be of no assistance in circumstances where the affidavit as it was presented to the Tribunal (CB 132) corroborated the applicant’s evidence at hearing that his son was 5 years old at the time of an incident (at [17]). The wife’s affidavit to this Court now contradicts the applicant’s evidence at the Tribunal hearing, but corroborates the evidence he provided in an earlier statement to the Minister’s department that the son was 18 months old at the time of the incident. Hence, on any view, the affidavit evidence was of no assistance to the applicant’s case. It clearly invites impermissible merits review or is seeking to rectify inconsistencies identified by the Tribunal.
The affidavit from the applicant’s wife is therefore inadmissible.
The applicant’s affidavit sworn 17 July 2019 reads as follows:
1. I am the applicant of file MLG3156 of2018 listed for final hearing on 27 November 2019.
2. I am attaching coloured photographs during my activity with SAD (Amritsar).
3. SAD (Badal) and SAD (Amritsar) is two different political parties.
4. SAD (Badal) is alliance with BJP government.
5. SAD (Amritsar) is party fighting for Sikh rights and wants Khalistan.
6. Due to my medical issues and stress I am not able to remember dates.
7. Sikhs can’t get a fair share at the Indian Supreme Court, literally every single Supreme Court verdict that the SC has ordered has been anti-Punjab and anti-Sikh.
8. On 2 January 2019 in latest news I find out that “A total of 18 Khalistani terror modules have been neutralised in Punjab during the last two years, wherein a total of 95 accused persons have been arrested police and Government do fake arrest and fake encounters purposely.”
9. Police along with local congress party workers target people like me in fake cases and then in return demand money to release otherwise have to face torturing and death in fake encounters.
10. My life is getting worse day by day with stress and I also worried about my old age parents and family that living far away from me because of all these issues.
Attached to the affidavit are colour photographs of black and white photographs that appear in the Court Book materials (CB 148-143). It appears that the applicant wants these coloured photographs to be considered because the Tribunal stated (at [14]) that it placed no weight on the photos because they were of poor quality and were without captions. The evidence, it seems, is being provided to remedy a defect. It was not presented for the purpose of identifying any jurisdictional error.
Most of the matters in the applicant’s affidavit are irrelevant to the Court’s task and simply invite impermissible merits review. The matters at [3]-[6] appear to be a response to the Tribunal’s assessment of the applicant’s lack of knowledge of the SAD(A) (at [16]) and an explanation for the applicant’s “lack of knowledge”. This information should have been presented at the Tribunal hearing. It does not go to the issue of jurisdictional error.
As for [7], [9]-[10] these are all matters that have no bearing on whether the Tribunal has fallen into jurisdictional error.
As for [8], what the applicant refers to occurred after the Tribunal’s decision. It cannot be considered by this Court: WZATI v Minister for Immigration & Border Protection [2015] FCA 923 at [70].
The applicant’s affidavit sworn 17 July 2019 is, therefore, inadmissible.
Consideration
Although not technically grounds of review, the applicant’s affidavit sworn/affirmed 17 October 2018 does contain 15 paragraphs. For ease of reference the Court will address these as “grounds”.
Grounds 1-4
Grounds 1-4 are not grounds of review. They are statements of fact or statement as to the relief sought.
Accordingly, no error arises from grounds 1-4.
Grounds 5, 11 and the applicant’s oral submissions
Grounds 5 and 11 suggest that the applicant was not afforded procedural fairness.
There is nothing to suggest that the Tribunal breached the exhaustive procedural fairness obligations provided in pt.7, div.4 of the Act (see, s.422A). To summarise:
a)the applicant was invited to a hearing before the Tribunal to provide evidence and arguments: s.425 of the Act;
b)the applicant was on notice by virtue of the delegate’s decision that the dispositive issue of the review was the credibility of his claims. Hence, no error of the kind identified in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 is apparent;
c)there is nothing on the face of the Tribunal’s decision that was required to be put to the applicant under ss.424A and 424AA of the Act; and
d)there is nothing in the decision record that would lead a reasonable fair-minded lay observer to believe that the Tribunal was displaying bias or prejudgment: SZRUI.
Accordingly, ground 5 is dismissed.
In relation to ground 11, the Court acknowledges that the applicant’s representative withdrew on 30 July 2018. This was 3 days prior to the Tribunal hearing. The Court has considered whether this denied the applicant an opportunity to properly prepare his case.
The Court does not believe that the applicant did not have a proper opportunity to prepare his case in circumstances where:
a)the applicant, by virtue of the deeming provisions of s.441G(2) of the Act, was taken to have received notice of the hearing when the invitation was provided to his representative on 9 July 2018. There is no evidence that the applicant ever confirmed the withdrawal of the authorised recipient (noting that the Tribunal’s decision was sent to the representative). Overall, the applicant was afforded the statutory notice period required;
b)the reason for the applicant’s representative withdrawing was that the applicant had “failed to meet our engagement and instruct”. Hence, it appears that the applicant’s own conduct led to his representative withdrawing (CB 89);
c)the applicant attended the hearing with the assistance of a Punjabi interpreter. At no time during the course of that hearing does it appear that an adjournment request was made; and
d)the applicant was given a further two weeks within which to provide any further supporting documents and materials to the Tribunal. The applicant provided a number of further documents on 14 August 2018 (CB 102-162).
The Court is satisfied that the applicant had a proper opportunity to present his case to the Tribunal and was able to meaningfully participate in the hearing.
Ground 11 is dismissed.
As for the applicant’s oral submissions before this Court that there were interpretation errors, this is not supported by any of the evidence before the Court.
If the applicant is suggesting that there were errors in the interpretation before the delegate, it is noted that the applicant did not partake in an interview with the delegate. If the applicant is referring to interpreter errors in an initial interview conducted while he was in detention, the Court notes that the applicant’s representative clarified what the applicant said during that interview in submissions to the delegate (CB 46).
The applicant did not provide the Court with a transcript of the hearing before the Tribunal. The applicant was provided an opportunity to provide any further evidence, and an extension of time in which to file those documents. He did not do so. Without any evidence the Court is not satisfied that there were any interpretation errors. On the face of the Tribunal’s decision it appears that the applicant was able to respond to the questions asked (see [16]-[17]).
It is also the case that the Tribunal did not solely rely on inconsistencies between the applicant’s evidence at hearing and in his application. The Tribunal relied on the inconsistencies between the other evidence (namely the affidavits) provided in support of the claim. On the evidence before the Court, the Court is not satisfied that there were any interpretation issues at the hearing such that the applicant was deprived of a meaningful opportunity to participate.
As to whether the applicant’s mental illness deprived him of the ability to give evidence, present arguments and answer questions (noting Minister for Immigration & Citizenship v SZNCR [2011] FCA 369 at [30]-[34]), the Court does not consider this to be the case. The applicant clearly participated in the hearing and gave evidence to the Tribunal. Further, the medical evidence that was before the Tribunal (dated two months before the hearing) did not indicate an inability to participate or that the applicant was “unfit” (CB 155-162). Rather, the evidence indicated that the applicant was on medication treating his anxiety and depression at the time of the Tribunal hearing. Further, and importantly, the Tribunal expressly referred to and took into account the applicant’s “mental health condition” (at [19]).
The applicant has provided no further evidence to this Court that indicates that he was unable to participate in the hearing before the Tribunal. The Court is not satisfied that his mental illness (which the Court accepts as real) deprived him of the opportunity to meaningfully participate.
No jurisdictional error arises from the applicant’s oral submissions.
Ground 6
Ground 6, without particulars, is meaningless.
The applicant was unable to assist the Court in relation to what “error of law” he is referring to.
In circumstances where the other grounds are broad, the Court considers that any potential “error of law” can be addressed when considering the other “grounds” as articulated in the applicant’s affidavit.
Grounds 7
Again, the applicant has not identified what “irrelevant” considerations he is referring to.
Having reviewed the decision, the Court is satisfied that no “irrelevant considerations” were assessed. As the Tribunal correctly acknowledged, delay in making an application for a visa is a relevant consideration.
It is further noted that each of the matters the Tribunal took into account were matters that the delegate also considered. If it was the case that something was “irrelevant” the applicant ought to have raised this with the Tribunal and explained why it was irrelevant. He did not do so.
Ground 7 is dismissed.
Ground 8
Ground 8 asserts that the Tribunal’s decision was “unreasonable”. On its face, this might simply indicate disagreement with the Tribunal’s conclusions.
The Court is not satisfied that the Tribunal’s decision is unreasonable or that the reasoning provided is illogical or irrational.
The conclusions the Tribunal reached were based on an evaluation of the applicant’s evidence and the relevant country information. Each of the findings the Tribunal made, including those that related to credibility and the weight attached to the applicant’s supporting documents, are rational and logical. It cannot be said that no reasonable decision-maker would not have reasoned in the same manner in light of the inconsistencies or nature of the evidence: SZMDS at [130].
Once again, the Court notes that the applicant does not appear to have sought an adjournment to prepare for the Tribunal’s hearing. Here, there was nothing to suggest to the Tribunal that the applicant required further time to “prepare”. The applicant was also provided an opportunity to provide further submissions. In these circumstances, it cannot be said to be unreasonable not to have adjourned the matter: Li.
Ground 8 is dismissed.
Grounds 9
Ground 9 appears to claim that the Tribunal failed to consider the applicant’s claims. An applicant’s claims for protection are mandatorily relevant considerations: SZKRT.
The applicant’s claims were based upon his membership of SAD(A), his political views as a member of SAD(A) and his Sikh religion. The Tribunal considered each of these matters. It specifically referred to the country information on “the position of Sikhs and the SAD(A)”.
At [31], the Tribunal:
a)made findings on the extent of the applicant’s membership of the SAD(A);
b)rejected the applicant’s claim that he had suffered persecution previously because of this membership;
c)was not satisfied that the applicant faced a real chance of persecution due to any affiliation or membership with the SAD(A); and
d)did not accept the applicant’s claim to fear harm on the basis of his Sikh religion.
It cannot be said here that the Tribunal failed to consider the applicant’s claims. The Tribunal engaged with all of the applicant’s claims and made the necessary findings of fact when determining whether the claims met the criterion for the relevant visa. The Tribunal was not satisfied that they did so.
Ground 9 is dismissed.
Grounds 10 and 12-13
Ground 10 is unclear.
To the extent that this ground refers to refers to the “respondent” (and not the “second respondent” as in the other grounds) and is intended to be a reference to the delegate, the Court has no jurisdiction to review the delegate’s decision: s.476(2) and (4) of the Act.
If, when reading ground 10 with ground 11, the applicant is suggesting that the Tribunal misunderstood or misconstrued the “refugee law” (i.e. s.36(2)(a)), the Court disagrees.
The Tribunal (at [3]-[6]) outlined the legal principles applicable to its task in relation to the “refugee law”. The Tribunal utilised the language of the statute throughout its decision. The Court does not accept that the Tribunal misconstrued or misapplied the “refugee law”.
Ground 10 is also dismissed.
In relation to ground 12, the fact that the Tribunal found that the applicant did not meet s.36(2)(a) or (aa) does not mean that the Tribunal erred or misconstrued the law. The applicant is, again, simply disagreeing with the Tribunal’s decision.
For the reasons given above, the Tribunal did not err in construing or applying s.36(2)(a).
The reference to s.36(2)(aa) in ground 12 should be read with ground 13.
The Court notes that the Tribunal (at [7]) also discussed the principles applicable to the “complementary protection” criterion. Those principles were correct and do not demonstrate any misunderstanding of the relevant legal principles.
Ground 13 appears to suggest that the Tribunal did not consider the applicant’s claims in the context of s.36(2)(aa) of the Act.
It is true that the consideration under the complementary protection criterion was short. At [33], the Tribunal simply states:
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
The Court also accepts that the applicant’s claims were that he would suffer “torture, threats of death and injury, death, assault and unlawful detention.” Such fears clearly meet the definition of “significant harm” under s.36(2B). However, they are also matters assessed under the definition of “serious harm” relevant to the refugee convention.
The Minister submits:
…Whilst the finding regarding complementary protection was brief, it had already comprehensively found that the applicant did not have a real chance of harm because of his claims. Read as a whole, the decision demonstrates that the Tribunal considered he did not face a real risk of significant harm or meet the complementary protection criteria for the same reasons. This is evident as it prefaced the relevant paragraph with “Having concluded that the applicant does not meet the refugee criteria in s 36(2)(a)” which is a reference back to its rejection of the claims under the refugee criteria. It was open to the Tribunal to rely on its findings under the refugee criteria to reject the applicant’s claims under the complementary protection criteria.
The Court must consider the reasons as a whole and the context within which the applicant’s claims were made. Here, the applicant’s claims in relation to the complementary protections provision were entrenched in the same factual stratum as his claims for protection under the refugee criterion.
The Court notes that in ASV16 v Minister for Immigration & Anor [2017] FCCA 3076 at [33] it was stated (in reference to a paragraph in the exact same terms):
In this case there were no additional facts or circumstances that would have resulted in the possibility of a different outcome under s.36(2)(aa) to the outcome reached under s.36(2)(a). For these reasons, I do not accept that the Tribunal has erred in dealing with the s.36(2)(aa) matters in a few brief lines at the end of the decision, given that it had already dealt with all of the relevant claims in detail in the context of s.36(2)(a).
The Tribunal was entitled to rely on the anterior findings it had made in relation to the refugee convention. Namely, the finding that the applicant did not face a real chance of harm for the reasons claimed could be used to determine that the applicant similarly did not face a real risk of significant harm for the reasons claimed: Minister for Immigration & Citizenship v SZQRB (2013) 210 FCR 505.
It is noted that the delegate’s reasons in relation to the “complementary protection” criterion were as follows:
I have considered whether the applicant would face a real chance of persecution on account of his religion or his political opinion. I have found there is no real chance the applicant would suffer serious harm for these reasons if they return to India. Considering the country information discussed above, I also find there is no real risk of the applicant facing significant harm, as defined in s36(2A), for these reasons if they returned to India in the foreseeable future.
If the applicant was concerned in this regard, he ought to have made submissions to the Tribunal as to why the Tribunal should not rely on its findings in relation to the refugee criterion when considering the complementary protection criterion. He did not do so.
There was no error in the Tribunal’s consideration and application of s.36(2)(aa) of the Act.
Grounds 10 and 12-13 are, accordingly, dismissed.
Ground 14
Ground 14, on its face, indicates no more than disagreement with the Tribunal’s decision.
The country information that the Tribunal relies on is a matter for the Tribunal – not this Court: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10. A substantial portion of the country information the Tribunal relied upon was relied upon by the delegate. Hence, if the applicant disagreed with it he had an opportunity to state why in submissions to the Tribunal. The Tribunal here notes that the applicant raised “no issue” with that information.
The Tribunal acknowledged that it had received information provided by the applicant after the hearing. It referred to the documentary evidence that was provided and made findings in relation to those materials. If the applicant is referring to the media articles he provided in support of his claim, these are addressed in the context of the “letter of support” as the media articles were “attached” to the letter of support. Hence, the Tribunal considered the “country information” (if, in fact, the media reports are what the applicant is referring to). For the reasons given at [15], the Tribunal found that information to be of “limited assistance”. It was open to the Tribunal to so find.
The Tribunal considered the “facts” of the applicant’s evidence and the country information when making its decision.
Finally, to the extent that the applicant is suggesting that the Tribunal’s decision is “vague”, the Court notes that, in accordance with s.430(1)(c) and (d), the Tribunal reasons clearly set out its findings on the material questions of fact and the evidence on which the Tribunal relied to make those findings. The “material findings” are provided at [31] and [33]. The evidence upon which those findings are based is detailed is at [13]-[30].
Ground 14, accordingly, is dismissed.
Ground 15
Ground 15 is not applicable in the circumstances of this case insofar as it refers to the “representations I made for mitigate my offending behaviour”. There is nothing on the face of the materials that suggests the applicant had engaged in any “offending behaviour” or had made representations to “mitigate” that behaviour.
Ground 15 appears to be “formulaic”. The ground is without merit in the circumstances of the applicant’s case. The Tribunal considered the claims advanced by the applicant to determine whether it was satisfied that the criteria (as found in s.36(2)) for the grant of the visa were met. The Tribunal did not misinterpret or misunderstand the assessment it was undertaking or fail to consider any relevant consideration.
Finally, to the extent that the applicant is referring to difficulties in preparing and presenting his case because he was from “a different social, ethnic and cultural background” and had language difficulties, the Court notes as follows:
a)the applicant is not in a dissimilar situation to many applicants seeking protection visas;
b)the applicant was represented before the delegate and had the assistance of a migration agent to complete his visa application and make submissions to the Tribunal on his behalf. He also had the assistance of an interpreter at the Tribunal hearing;
c)there is nothing on the face of the Tribunal’s decision to suggest that the Tribunal was not sensitive to any social, ethnic and cultural differences; and
d)for the reasons given above in relation to grounds 5, 11 and the oral submissions, the Court is satisfied that the applicant was able to prepare and present his case.
Ground 15, accordingly, is dismissed.
Conclusion
The Court is not satisfied that the 15 “grounds” articulated in the applicant’s affidavit identify any error in the Tribunal’s decision. Having reviewed the Tribunal’s decision in detail, the Court is also satisfied that no errors otherwise arise on the face of the Tribunal’s decision.
The application, accordingly, is dismissed.
I certify that the preceding one hundred and twenty-five (125) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 3 February 2020
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