FEDERAL COURT OF AUSTRALIA

EZA17 v Minister for Home Affairs [2018] FCA 713

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

THAWLEY J:

1    By an interlocutory application filed earlier this afternoon the applicant seeks various orders, including an order preventing his removal from Australia, that removal being proposed to take place tomorrow at 12.55 pm.

2    On 14 May 2018, that is yesterday, the applicant filed an application for an extension of time and leave to appeal. The applicant required leave to appeal because the decision from which he wishes to appeal was an interlocutory decision of the Federal Circuit Court. The applicant had made an application for judicial review to that Court which was heard at a show cause hearing under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). That rule permits the Federal Circuit Court, at a hearing of an application for an order to show cause, to dismiss the application if it is not satisfied that it has raised an arguable case for the relief claimed. Because such a dismissal is interlocutory (see: r 44.12(2)), the applicant requires leave of this Court to appeal – see: ss 24(1)(d) and 24(1A) of the Federal Court of Australia Act 1976 (Cth).

3    An application for leave to appeal must be filed within 14 days after the date on which the judgment was pronounced or the order was made – see: r 35.13 of the Federal Court Rules 2011 (Cth). The application for leave to appeal was not filed within the 14-day period, it being filed on 14 May 2018, approximately 69 days out of time. The decision of the Federal Circuit Court was delivered on 20 February 2018, and the ex tempore reasons for judgment were revised from the transcript and published on 22 February 2018.

4    With the application for an extension of time and leave to appeal there was filed an affidavit bearing the date 24 April 2018 and apparently sworn on 13 April 2018. That affidavit indicated that the applicant was:

…requesting an extension of time as it is difficult for my mother and father to assist me and obtain advice about reviewing the court case.

5    It also stated:

We have been trying to obtain advice about how we can review this, but there was a delay in receiving the court papers, and my parents have to visit me in in Villawood for me to sign any papers for this application.

6    This substantially replicates the short submissions that the applicant made when invited to say whatr he wished to say in support of his application this afternoon.

7    Also before the Court is the order and decision of the Federal Circuit Court which was annexed to the affidavit of the applicant. In addition, there is before the Court the court book which was before the Federal Circuit Court which contains the decision of the delegate of the Minister dated 2 August 2017 and the decision of the Administrative Appeals Tribunal dated 10 October 2017.

Background

8    The facts as they appear from the material before the Court are as follows. The applicant was born in Fiji on 16 May 1985, is a citizen of Fiji and arrived in Australia on 7 December 1987 as a two-year-old child. He was subsequently granted a number of visas. These are set out in the decision of the delegate. In particular, he held, it would appear, two visas as at 6 January 2016, namely, a class BB subclass 155 visa and a bridging visa (subclass WA-010). These visas were cancelled on 6 January 2016 under s 501(3A) of the Migration Act 1958 (Cth) (Act). These visas, assuming there to be two, were cancelled on character grounds under subsection 501(3A).

9    The applicant was entitled to, but did not, apply for revocation of the visa cancellations under s 501CA of the Act. Instead, the applicant applied on 2 July 2017 for a protection (class XA) visa. On 2 August 2017, the delegate refused to grant the applicant a protection visa. The applicant sought review of the delegate’s decision before the Tribunal by an application received by the Tribunal on 10 August 2017. The applicant appeared at a hearing before the Tribunal on 22 September 2017. The Tribunal made its decision on 10 October 2017, affirming the decision of the delegate not to grant the applicant a protection visa.

10    In summary form, the applicant claimed to fear harm in Fiji because he had no family there, did not speak Fijian, would not be able to work in Fiji and would end up homeless. Although the applicant had not directly made a mental health claim in his written submissions, the delegate identified him as suffering from schizophrenia and therefore identified that the applicant had, as an integer of his claim, a claim regarding his mental health condition. The Tribunal also considered this claim. The applicant’s mother gave evidence to the Tribunal that the applicant’s paternal grandfather was Chinese and that she was concerned this may be adverse to the applicant in Fiji.

11    The Tribunal considered that the applicant did not have a well-founded fear of harm. In particular, the Tribunal found there was no real chance that the applicant would suffer serious or significant harm in Fiji because of his inability to speak Fijian. The Tribunal noted that English is an official language of Fiji. The Tribunal accepted that the applicant had no family in Fiji. The Tribunal accepted that the applicant suffered depression and schizophrenia, notwithstanding the absence of supporting medical evidence.

12    The Tribunal noted that, in accordance with “Ministerial Direction No 56” made under s 499 of the Act, the Tribunal was to take account of policy guidelines prepared by the Department (PAM3 Refugee and Humanitarian – Complementary Protection Guidelines, and PAM3 Refugee and Humanitarian – Refugee Law Guidelines) and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes to the extent they were relevant to the decision under consideration.

13    The Tribunal noted that DFAT had published such a report on Fiji on 14 April 2015, which had been superseded by a report published after the hearing on 27 September 2017. The Tribunal had regard to the latter report, that is, the report dated 27 September 2017 in relation to the applicant’s claims, noting that it was not materially different to the preceding report and did not raise any new information. The choice of country information to take into account was a matter for the Tribunal.

14    Annexed to the Tribunal’s reasons was an attachment which set out some of the country information. In particular, the report noted that:

A social assistance system applies to all citizens of Fiji which includes cash transfer schemes such as the payment of a regular allowance and other direct financial assistance (for example, food vouchers) and a few indirect transfer transport schemes such as free bus services for people with disabilities.

15    The country information also noted that the Fijian Government funds various housing schemes. Further, the attached information noted that:

… free and extensive government healthcare is generally available in Fiji. Public hospitals and clinics provide free healthcare including generalist and specialist services and hospitalisation. The government has prioritised equity and access for the poor in its health services. Specialist healthcare services included services for mental health such as community health teams and the St Giles Hospital, which provides inpatient and outpatient services for people [with] mental illness.

16    The report also noted that amongst the general community in Fiji there is reportedly little understanding of mental illness and stigma associated with mental illness exists.

17    Having had regard to this country information, the Tribunal found that the applicant could access financial support, housing, healthcare and counselling such that there was no real chance he would become homeless. Further, on the basis of country information, the Tribunal concluded that the applicant did not face a serious risk of harm as a result of his grandfather’s Chinese ethnicity. For those reasons, and having considered the applicant’s claims both individually and cumulatively, the Tribunal concluded that the applicant did not satisfy the refugee criterion. For the same reasons, the Tribunal was not satisfied that the applicant met the complementary protection criterion.

Federal Circuit Court

18    The applicant relied upon two grounds before the Federal Circuit Court in relation to the show cause application filed on 13 November 2017. Those two grounds were:

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 [the Tribunal] 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 [the Tribunal] 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.

19    Before the Federal Circuit Court, according to the court’s reasons, the applicant made two assertions. First, that the Tribunal reached a mistaken conclusion and failed to consider relevant material in dealing with his mental health claims. Secondly, that the Tribunal failed to identify the applicant as a member of a social group, being Fijian nationals with mental health issues.

20    As to ground one, the Federal Circuit Court noted that the Tribunal made findings of fact which were open to it and specifically noted the following:

a)    the choice and assessment of country information was a matter for the Tribunal [citing NAHI v Minister for Immigration and Border Protection [2004] FCAFC10 at [13] (NAHI)];

b)    the Tribunal was bound to take into account relevant country information assessments prepared by DFAT to the extent they were relevant [citing NAHI at [11]; Ministerial Direction 56 and s 499 of the Act];

c)    this was not a case where the Tribunal had failed to have regard to the most up to date country information [citing Minister for Immigration v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114]; and

d)    in any event, the country information specifically referred to mental health services and the availability of medications used to treat schizophrenia and related conditions [citing page 12 of the Tribunal decision].

21    As to ground two, the Federal Circuit Court noted that the Tribunal considered the applicant’s claims and evidence and made findings that were open to it. The applicant did not claim before the Tribunal to be part of the now-asserted social group and appeared to be retrospectively recasting his claims.

22    The Federal Circuit Court stated:

Nevertheless, the Tribunal considered whether the applicant would face serious or significant harm for reason of his mental illness. The Tribunal also noted country information which indicated the applicant would have access to welfare, housing and free healthcare to people with mental illness. 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.

23    The Federal Circuit Court concluded that:

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.

24    For this proposition the Federal Circuit Court cited the decision of Greenwood J in SZNOE v Minister for Immigration and Border Protection [2012] FCA 96 at [78], where his Honour stated:

Further, as Burnett FM correctly notes, there is clear authority for the proposition that the principles exposed by Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 do not require the Tribunal to consider whether the particular social group of which the appellant claims to be a member (either expressly or implicitly by reason of the material) is a “social group” for the purposes of Art 1A(2) of the Refugees Convention (and the Act), in circumstances where the Tribunal has found that the appellant does not hold a well-founded fear of persecution as contemplated by s 91R(1) of the Act for any Convention reason (MZXDQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1632 at [18], [25] and [29] per Finkelstein J; SZJRU v Minister for Immigration and Citizenship [2009] FCA 315 at [49]-[50] per Besanko J; and BRGAE of 2008 v Minister for Immigration and Citizenship [2009] FCA 543 at [21]-[25]). Unless the Tribunal makes a jurisdictional error, on the question of fact of whether the applicant holds a well-founded fear of persecution for any one of the contended reasons, no jurisdictional error arises by the mere failure to identify and consider the precise social group to which the applicant claims membership.

25    For those reasons, the Federal Circuit Court dismissed the application pursuant to rule 44.12(1)(a) of the Act.

This Application

26    The principal matters requiring determination on this application are first, whether the applicant has demonstrated sufficient prospects of success in the application sought to be pursued in this Court, namely, an application for an extension of time and leave to appeal, and secondly, where the balance of convenience lies. A third consideration is what explanation has been provided for the applicant’s delay.

27    The applicant was served with a “Notice of intention to remove from Australia” on 9 May 2018. At this time the applicant had not made any application to this Court. It seems that the application for an extension of time and leave to appeal was made after that date. Mr Pinder properly informed the Court that an application had been attempted to be made on 10 May 2018. However, the application was not in fact filed until 14 May 2018. In any event, at the time that the notice of intention to remove from Australia was served on the applicant there was no application extant in this Court.

28    As to the application for leave to appeal and the application for an extension of time, a number of matters may be said to be relevant in terms of prospects of success. As to an application for an extension of time, the matters which are most commonly regarded as relevant include:

(1)    the extent of the delay;

(2)    the applicant’s explanation for the delay;

(3)    the prejudice to the respondent because of the delay; and

(4)    the merits of the applicant’s proposed appeal.

29    These are the factors which were identified by Wilcox J in Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344 at [18] to [23]. These factors are not exhaustive, and each case turns on its own facts. As to the application for leave to appeal, one of the critical factors is the prospect of success on the appeal, assuming leave to appeal were granted.

Prospects of success

30    The affidavit filed in support of the application for an extension of time and leave to appeal had annexed to it a draft notice of appeal from the Federal Circuit Court of Australia. The grounds of appeal identified in that document were substantially identical to the grounds for judicial review to the Federal Circuit Court, as identified above.

31    The question for this Court on any appeal, if leave to appeal were granted, would be whether the Federal Circuit Court erred in concluding that the Tribunal had not erred in a manner which gave rise to jurisdictional error. In substance, if the applicant were able to show to this Court that the Federal Circuit Court ought to have concluded that the Tribunal committed jurisdictional error, then the appeal might be allowed.

32    Having reviewed the Tribunal’s decision and having reviewed the decision of the Federal Circuit Court, my view is that there are no reasonable prospects of an appeal to this Court being successful.

Balance of convenience

33    Section 198(2B) of the Act provides as follows:

An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

(a)    a delegate of the Minister has cancelled a visa of the non-citizen under subsection 501(3A); and

(b)    since the delegate’s decision, the non-citizen has not made a valid application for a substantive visa that can be granted when the non-citizen is in the migration zone; and

(c)    in a case where the non-citizen has been invited, in accordance with section 501CA, to make representations to the Minister about revocation of the delegate’s decision, either:

(i)    the non-citizen has not made representations in accordance with the invitation and the period for making representations has ended; or

(ii)    the non-citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the delegate’s decision.

34    In substance, this requires an officer to remove, as soon as reasonably practical, an unlawful non-citizen. The provision is not discretionary.

35    The Minister also noted that there is a cost involved in deportation and relied upon this as a factor against granting the interlocutory relief sought. In this case, the evidence before the Court indicates that the costs of deportation are in excess of $10,000.

36    There is obvious detriment to the applicant, but in my view this is outweighed by the lack of prospects of success which attend his substantive application.

Delay and explanation for delay

37    The delay is relatively lengthy and the explanation is poor. However, I take into account the applicant’s difficult circumstances and his mental health issues. I did not give this factor significant weight against the applicant.

Conclusion

38    Taking into account the matters just referred to, in my view it is not appropriate to grant the interlocutory relief sought.

Associate:

Dated:    15 May 2018