FEDERAL COURT OF AUSTRALIA

ANV15 v Minister for Immigration and Border Protection [2016] FCA 261

Appeal from:

ANV15 v Minister for Immigration and Border Protection (No. 2) [2015] FCCA 3462

File number:

VID 925 of 2015

Judge:

TRACEY J

Date of judgment:

18 March 2016

Catchwords:

MIGRATION – appeal from decision of the Federal Circuit Court – judicial review of a decision to refuse to grant a Protection (Class XA) visa whether the Refugee Review Tribunal’s decision was affected by jurisdictional error – whether the appellant was afforded procedural fairness – whether the Refugee Review Tribunal was under a duty to inquire about the appellant’s mental health

Legislation:

Federal Circuit Court Rules 2001 (Cth), r 16.05(2)(f)

Migration Act 1958 (Cth)

Cases cited:

ANV15 v Minister for Immigration and Border Protection [2015] FCCA 2859

ANV15 v Minister for Immigration and Border Protection (No. 2) [2015] FCCA 3462

Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429

Date of hearing:

10 March 2016

Registry:

Victoria

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

27

Counsel for the Appellant:

The Appellant appeared in person

Counsel for the First Respondent:

Ms C Symons

Solicitor for the First Respondent:

Sparke Helmore

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice

ORDERS

VID 925 of 2015

BETWEEN:

ANV15

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

TRACEY J

DATE OF ORDER:

18 MARCH 2016

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondents costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).

REASONS FOR JUDGMENT

1    This is an appeal from a judgment of the Federal Circuit Court (“the FCC”) to dismiss an application, made by the appellant, for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) (as it then was).

2    The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Border Protection (“the Minister”) to refuse an application by the appellant for a Protection (Class XA) visa.

3    The application to the FCC was originally thought to have been made out of time and the appellant sought an extension of time in which to commence the proceeding. The FCC rejected this application, principally on the ground that the case had no merit: see ANV15 v Minister for Immigration and Border Protection [2015] FCCA 2859 at [18].

4    It was subsequently discovered that the original application had not been made out of time. The appellant made a further application to the FCC, supported by the Minister, inviting it to set aside its order dismissing the application for an extension of time. The FCC, acting under r 16.05(2)(f) of the Federal Circuit Court Rules 2001 (Cth), acceded to the application. It set aside its original order and substituted an order that the principal application be dismissed: see ANV15 v Minister for Immigration and Border Protection (No. 2) [2015] FCCA 3462. The FCC determined that the appellant had failed to demonstrate any jurisdictional error on the part of the Tribunal and relied on the same reasons that it had published when dealing with the extension of time application to the extent that those reasons dealt with the legal merits of the appellant’s claim: ANV15 v Minister for Immigration and Border Protection [2015] FCCA 2859 at [7] to [28].

BACKGROUND

5    The appellant is a citizen of the United States of America who resided in Hawaii. On 26 September 2012, he entered Australia on a visitor visa. That visa expired on 26 December 2012. Despite this, the appellant remained in Australia.

6    On 7 January 2015, he applied for the Protection visa.

7    The visa application contained multiple claims. He said that, should he return to the United States, he would be killed by his parents or their criminal associates. He said that he had mental health problems which would not be treated adequately or appropriately in the United States. He also claimed that he would suffer racial and religious persecution. He further asserted that he could not avoid the anticipated persecution by moving to another part of the United States because his father had connections which would enable him (the father) to find the appellant.

8    On 23 January 2015, a delegate of the Minister rejected the appellant’s application for a Protection visa. He found that there was no evidence to support any of the appellant’s claims.

THE TRIBUNAL’S DECISION

9    On 27 January 2015, the appellant sought review of the delegate’s decision by the Tribunal.

10    The Tribunal affirmed the decision of the delegate. It noted that the appellant had withdrawn his claim to fear persecution on the basis of his religious beliefs. It found that he did not face a real chance of serious harm as a result of his mixed race ethnicity. It further found that he was not at risk of serious harm at the hands of his parents or of criminal syndicates. The Tribunal found that any shortcomings in the United States health system could not be relied on by the appellant to support a claim under the Refugees Convention. The Tribunal also considered and rejected any suggestion that Australia owed the appellant complementary protection.

THE JUDICIAL REVIEW APPLICATION

11    The appellant sought judicial review of the Tribunal’s decision in the FCC.

12    The grounds of the application lacked clarity. In substance, the appellant alleged that the Tribunal had failed to accord him procedural fairness by failing to pursue enquiries relating to the state of his mental health; that the Tribunal’s reasons were illogical or unreasonable; and that the Tribunal had failed to consider all of his claims and the evidence supporting them.

13    The appellant’s denial of procedural fairness claim, as it was developed in the FCC, was based on what he asserted was the Tribunal’s failure to obtain or arrange further psychiatric reports on his mental health. He complained that the Tribunal had not read discharge papers which had been raised by the Alfred Hospital. He had been an inpatient at the Hospital, following a suicide attempt. The papers, he said, made it plain that he laboured under disabilities. Had it been aware of these disabilities, the Tribunal, he asserted, was under an obligation, with which it had failed to comply, to obtain a further psychiatric evaluation before proceeding to its decision.

14    The FCC held that the Tribunal had correctly directed itself in law. The primary judge rejected each of the grounds which had been relied on by the appellant and held that the Tribunal had committed no jurisdictional error which would warrant curial intervention. Her Honour concluded that the Tribunal had “carefully considered the [appellant’s] claims and evidence and made findings open to it on the evidence before it.”

15    The primary judge summarised her findings at [19] as follows:

To the extent that the Applicant’s grounds of application contend that the Applicant was not afforded procedural fairness by the Tribunal, there is no evidence before the Court and nor is it apparent from the Tribunal’s Decision Record, that the Tribunal did not comply with its obligations under div.4 of pt.7 of the Act. The Tribunal validly invited the Applicant to the hearing, which he attended in company with his authorised representative, and at which he gave evidence in support of his claims. At the hearing the issues discussed between the Tribunal member and the Applicant were those same issues as before the Delegate, and the Applicant had provided a copy of the Delegate’s Decision Record dated 23 January 2015 to the Tribunal. The Applicant was on notice as to the determinative issues on review by the Tribunal, and was provided an opportunity to respond to such issues. The Tribunal was not required to do something more than it did, including to obtain some further assessment of the Applicant’s mental health. The Tribunal was not required to make further inquiries in that regard, nor to take further steps. It conducted a fair and open hearing; there was no breach of natural justice; and there was no illogicality or unreasonableness attending the decision or the reasoning process of the Tribunal. Rather, the Tribunal considered all of the integers of the Applicant’s claims and made findings on the basis of the evidence before it. It consulted relevant country information. The Applicant disagrees with the factual findings of the Tribunal, but factual findings are the role of the Tribunal and not this Court.

16    Her Honour then proceeded to review the Tribunal’s reasons insofar as they dealt with the appellant’s mental health. It was clear from the passages extracted in her Honour’s reasons that the Tribunal had given careful and detailed attention to this matter. In particular, it was clear that the Tribunal had read and considered the hospital discharge summary. It was sufficiently concerned about the appellant’s mental health as to express the view that the appellant’s case should be referred to the Department with a view to it being brought to the Minister’s attention. More importantly, for present purposes, her Honour implicitly held that the Tribunal had not erred by finding that the appellant’s “fears arising out of his mental health concerns and ability to subsist are not Convention related.”

THE APPEAL

17    The appellant’s grounds of appeal from the FCC’s decision are not clearly expressed. It is, however, evident that the appellant challenges the FCC’s finding that no jurisdictional error had been made by the Tribunal. Although there are seven grounds in his Notice of Appeal, the essence of them is to be found in Ground 1, which reads:

Her Honour erred in law for not finding that the decision of the [Refugee Review Tribunal] is affected by jurisdictional error in that it was legally unreasonable given the fact that the Tribunal committed a particular error in its reasoning as the Tribunal’s reasoning was and is illogical and irrational and while the precise nature of the error may not appear as obvious, the outcome “bespeaks error”. It is because the decision was and is unreasonable, unfair, plainly unjust, and lacks any evident and intelligible justification on the evidence that was before the Tribunal.

18    Most of the remaining grounds developed the appellant’s complaint about what he said was the Tribunal’s failure to accord him procedural fairness by not raising questions and instituting enquiries relating to his mental health.

19    The appellant did not file any written submissions in support of his appeal. He made oral submissions. Those submissions concentrated on the state of his mental health and what he said was the Tribunal’s failure to give adequate attention to his psychiatric condition when reaching its decision. He reiterated that the Tribunal had not had regard to the discharge certificate issued by the Alfred Hospital, where he had been treated following an attempted suicide.

20    The appellant also contended that the Tribunal’s finding that his health concerns could not found a claim under the Refugees Convention was incompatible with the United Nations Convention on the Rights of Persons with Disabilities (“the Disabilities Convention”). He referred to certain statements in a document prepared by the Executive Committee of the UNHCR, dated 12 October 2010, which was issued following the entry into force of the latter Convention. The document recorded certain “conclusions” reached by the Committee. The appellant drew attention to various acknowledgments and recommendations contained in that document. They were:

Acknowledging that refugees and other persons with disabilities include those who have long-term physical, mental, intellectual and sensory impairments, which, in interaction with various barriers, including attitudinal and environmental barriers, may hinder their full and effective participation in society on an equal basis with others,

Acknowledging that services and facilities, including assistance programmes and protection, may be inaccessible to persons with disabilities,

Recognizing that refugees with disabilities may be excluded from support and services when repatriating and often have fewer opportunities for other durable solutions, namely local integration and resettlement,

Reaffirming the primary responsibility of States to take all appropriate measures to protect and assist persons with disabilities, in all situations,

Recommends that States, in cooperation with the UNHCR and relevant partners, ensure that refugees with disabilities have equality of opportunity for durable solutions and are provided appropriate support;

Recommends that States, in cooperation with UNHCR and relevant partners upon request, ensure that persons with disabilities, other than refugees, protected and assisted by UNHCR have equality of opportunity for solutions and are provided appropriate support;

21    It does not appear that this document was before the Tribunal.

CONSIDERATION

22    There can be no doubt that the Tribunal was alert to the fact that the appellant suffered from serious mental health issues. Contrary to the appellant’s submission, it had read and considered the hospital discharge certificate (see reasons at [22]), and had given consideration to treatment he had received before he left the United States and to whether appropriate treatment would be available to him upon his return. It was sufficiently concerned by the lack of information about the appellant’s mental health to say (at [72]) that it considered “that the Minister may wish to be provided with further information regarding the [appellant’s] health condition, and may wish to provide the [appellant] with a relevant visa that would allow him to access appropriate medical care prior to returning to his home country.”

23    The Tribunal, itself, was not in a position to commission a medical assessment and report on the appellant’s mental health. Nor was it required to do so: cf Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [16]-[25].

24    More fundamentally, however, there is no legal foundation for the appellant’s contentions that his health-related fears could be relied on to support his claims to be a refugee and, that the Tribunal’s contrary finding constituted a jurisdictional error.

25    The appellant is, almost certainly, a person suffering from a mental disability. It does not follow that he has any rights arising under the Disabilities Convention which impinge on his claim that Australia owes him protection obligations under the Refugees Convention. It is to be noted that the “conclusions” document referred to above at [20] did not create any relevant rights.

26    Mindful of the disabilities under which the appellant laboured, I have carefully examined the Tribunal’s reasons and I am unable to discern in them any reviewable error. The primary judge did not err by finding that no jurisdictional error on the part of the Tribunal had been established. No appealable error on the part of the FCC has been established.

DISPOSITION

27    The appeal must be dismissed with costs.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Associate:

Dated:    18 March 2016