FEDERAL COURT OF AUSTRALIA

CHH16 v Minister for Immigration and Border Protection [2019] FCA 1278

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant must pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

FARRELL J:

Introduction

1    The appellant (also referred to as CHH16) is an Indian national who arrived in Australia on an entertainment visa on 9 August 2004.

2    The appellant’s first application for a Protection (Class XA) visa was received by the Department of Immigration and Multicultural and Indigenous Affairs (as it was then named) on 16 August 2004. He claimed to fear persecution in India because of his political opinion. He claimed to be actively involved in the Orissa Communist Party in India and trade union movement. The appellant also claimed he feared harm as a Christian. The visa was refused and the appellant was unsuccessful in overturning that decision in both merit review and judicial review processes.

3    The appellant again applied for a Protection (Class XA) visa on 11 October 2012 on a different basis: The claim was to complementary protection under s 36(2)(aa) of the Migration Act 1958 (Cth). That claim was available to the appellant, despite his previous application for a protection visa, in light of the Full Court’s decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235.

4    On 2 July 2014, a delegate of the Minister for Immigration and Border Protection refused to grant CHH16 a protection visa and the delegate’s decision was affirmed by the Administrative Appeals Tribunal on 27 July 2016. The appellant sought judicial review of the Tribunal’s decision by the Federal Circuit Court of Australia (FCCA). The judicial review application was dismissed: see CHH16 v Minister for Immigration and Border Protection [2017] FCCA 2227.

Tribunal’s reasons

5    The following is derived from the Tribunal’s decision record (or DR).

6    CHH16’s reasons for claiming protection in his second application for a protection visa are contained in his visa application and are as follows (as written):

My ex-wife lives in [redacted], [redacted] district of Kerala. Her family and brothers are part of criminal gangs. Since my divorce with her, they feel great hatred and animosity towards me, as they feel that I have deserted the family and left all family responsibilities to her. Her family and brothers who are members of ruthless criminal gangs will perform anything when they are given monetary reward and I fear they will target me on my return and torture and even kill me.

I fear I will face a real risk of harm including torture, inhuman and degrading treatment if returned to India. I fear I will not be able to get adequate state protection because the authorities are corrupted. I fear even if I move to other parts of India I will be targeted by criminal gangs.

See my detailed statement to follow.

7    During its first day of hearing, the Tribunal noted that no further statement had been received from the appellant.

8    The hearing before the Tribunal was adjourned three times: from 24 November 2014 to 1 February 2016, to 4 April 2016, and then to 14 May 2016. The first two extensions were based on medical certificates stating that the appellant was unfit to attend work/study due to a “medical condition” which were received the day before or on the day scheduled for the hearing. In granting the extension to 4 April 2016, the Tribunal advised that any further adjournment requests would need to be accompanied by a medical certificate detailing his medical condition. On 29 March 2016, the appellant’s representative informed the Tribunal that CHH16 had instructed that he was unable to attend the hearing on 4 April 2016 and attached a letter from a clinical psychologist. The letter stated that the appellant suffered from symptoms that resemble the Diagnostic and Statistical Manual V of major depressive episode at severe level and that there were indications that he reported symptoms of post-traumatic stress disorder that warranted clinical attention, saying that the appellant’s GP had referred him to a psychiatrist for further evaluation. The letter went on to state that he had been attending weekly psychological treatment and, in the psychologist’s professional opinion, the appellant’s current mental health condition may compromise his capacity to attend an interview. The psychologist said that the treatment plan was expected to be completed in four months. The Tribunal determined to reschedule the hearing for 14 May 2016 and sent the appellant a copy of the Tribunal’s “Guidelines on Vulnerable persons”. The Tribunal told him that he was welcome to bring a support person to the hearing and that the Tribunal would seek to alleviate and minimise any stress at the hearing and intended to discuss his capacity to give evidence at the start of the hearing.

9    On 17 May 2016, CHH16 appeared before the Tribunal via videoconference to give evidence and present his arguments. The hearing was conducted with the assistance of an interpreter. CHH16 was accompanied by his registered migration agent and by a friend who was also a former work colleague and supervisor who attended in the capacity of a support person.

10    At the start of the hearing, the Tribunal asked CHH16 about his current health conditions and was told that the psychiatrist (whom he had seen for the first time shortly before the hearing) had prescribed him with anti-depressant medication which he had begun to take that day. CHH16 said that expected the dosage to increase over time and he had not yet begun to feel its effects. He said that he saw his psychologist on a weekly basis. He told the Tribunal he felt well enough to proceed with the hearing but that he had memory problems because of his depression and could not recollect things fast.

11    The Tribunal accepted that CHH16 suffered from symptoms that resemble the Diagnostic and Statistical Manual V of major depressive episode at severe level and that he has reported symptoms of post-traumatic stress disorder. The Tribunal stated that it was satisfied that:

(1)    CHH16 understood the purpose of the hearing and the questions being asked;

(2)    CHH16 was able to provide understandable answers to questions and to discuss his answers with the Tribunal in a manner which indicated active consideration of the information being discussed;

(3)    CHH16 had the capacity to understand the questions being asked and to give an answer to those questions that could be understood; and

(4)    CHH16 was competent to give evidence and participate in the hearing.

In forming that view, the Tribunal noted that the psychologist’s letter did not explain how he had arrived at the opinion that the appellant’s health condition would compromise his capacity to attend an interview. The Tribunal took into account that CHH16 told it that he could not remember some dates and times, that he sees the psychologist regularly and that he suffers depression and had begun taking medication.

12    During that hearing CHH16 told the Tribunal he feared returning to India because of political issues, as well as a problem between Hindus and Christians in his area in India, and because he is scared of his ex-wife’s brothers.

13    The Tribunal stated that it took a number of short adjournments to help alleviate the stress of giving evidence. The first two times the hearing resumed, CHH16 confirmed that he felt well enough to proceed. After the third adjournment, CHH16 stated he felt unwell and had pains in his chest. CHH16 was then granted another adjournment to speak with his representative. On resumption, the representative told the Tribunal that CHH16 still felt unwell and would prefer to adjourn the hearing. The Tribunal granted the request.

14    On 17 May 2016 the Tribunal invited CHH16 to attend the resumed hearing on 27 May 2016.

15    On 24 May 2016 the representative told the Tribunal they were no longer representing CHH16. On the same day, CHH16 confirmed that his agent was no longer representing him and requested all future correspondence to be sent to him directly. He also confirmed he would be attending the resumed hearing. He discussed the possibility of postponing the hearing so he could find a new agent and was advised to put any adjournment request in writing.

16    On 27 May 2016, CHH16 appeared before the Tribunal and stated that he still felt pain in his chest and that he had not seen a doctor about the pain, but saw his psychologist. He requested a further adjournment noting his representative had withdrawn only days before the hearing and he would like the opportunity to consult a new representative. He told the Tribunal he had made an appointment to see someone the following week. The Tribunal granted the request for an adjournment so that CHH16 could consult a new representative. On the same day, the Tribunal sent him an invitation to attend the resumed hearing on 24 June 2016.

17    On 24 June 2016, CHH16 appeared before the Tribunal via video conference. The hearing was conducted with the assistance of an interpreter. At the start of the hearing, CHH16 told the Tribunal that he had approached two migration agents since the last hearing but could not afford their services. During the hearing, he confirmed he was taking medication for high blood pressure and continued medication for depression. He said that he experiences pain if he sits too long. The Tribunal noted that it would take breaks during the hearing if he felt pain. The hearing lasted an hour and no requests for a break were made.

18    During the hearing, the Tribunal raised concerns about CHH16’s credibility and oral evidence given on 17 May 2016. CHH16 requested time to put further information in writing, and in light of the previous adjournments, the Tribunal granted him seven days to provide any further material he would like the Tribunal to consider. The Tribunal received no further material from CHH16.

19    The Tribunal found:

(1)    It was concerned about the vague nature of CHH16’s oral evidence in relation to his claims. While it took into account the medical certificates and letter from the psychologist in relation to his medical conditions and treatment, it did not accept that his medical conditions, medications and memory problems explained or resolved its concerns about his oral evidence and previous claims. It found that he was “not a witness of truth” and it was not satisfied that he had told the truth “about critical aspects of his claims”. The Tribunal provided its detailed reasons for those findings at DR[45]-[79].

(2)    It did not accept that CHH16 was a member or was involved or active with the Communist Party in India from the time of his education or at all or any of the claims that derived from that. It did not accept that he was of adverse interest to anyone involved in politics, the Communist Party, the union movement or employment relations in India. It did not accept that anyone was searching for him or that there was any outstanding case against him. It did not accept that he would be involved in politics or join or support a political party on return to India. It therefore did not accept that there was a real chance that he would face significant harm of any kind due to support for or membership of the Communist Party or any political issues he claimed.

(3)    It did not accept that he told the truth in relation to his marital status and relationship with his wife and her family. It did not accept that he was divorced or not in contact with his wife or that his wife’s family blames him for the death of her mother or that they are members of ruthless criminal gangs. It did not accept that there was a real risk that his wife’s family and/or her brothers will target him upon his return or torture or kill him or that he faced a real risk of torture or inhuman or degrading treatment if returned to India. It did not accept that he would be unable to access state protection should he require it or that he would be targeted by criminal gangs in any part of India he chose to live.

(4)    The Tribunal accepted that CHH16 and his family are Christians and that it was plausible that he was involved in a violent incident at some time in relation to a procession and carnival connected with his church. It noted country information and CHH16’s oral evidence that he had not experienced any other incidents and his family had not experienced problems practising their religion in India. It accepted that CHH16 would visit church on a semi-regular basis upon return to India. On the information before it, the Tribunal found that the risk he would suffer harm on that basis was remote and there was not a real chance that he would face significant harm for that reason if he returned to India.

(5)    It did not accept that there was a real risk that CHH16 would suffer significant harm, or harm of any kind, if he is returned to India.

20    Having regard to the grounds on which the appellant relied in the FCCA and before this Court, it is useful to note that, in response to all invitations to attend a hearing or resumed hearing, the appellant (through his representative) filed a “Response to hearing invitation – MR Division” form. In response to the question in Part 3 concerning whether the appellant requested the Tribunal member to take into account oral evidence from another person, the box “yes” was ticked and the details of “Witness 1” were marked “TBA”.

FCCA application

21    CHH16 was not represented in the proceedings in the FCCA.

Grounds

22    CHH16 relied on the following grounds which are set out in the FCCA Judge’s reasons (as written):

1    Tribunal member did not allowed to submit more testimony and made jurisdictional omission and also did not properly consider the witness presented to RRT;

2.    Tribunal member errored by not properly considering the procedural fundamentals and allowed an opinion from Independent Protection Assessment Reviewer thus an error made by the RRT;

3.    Tribunal member did giver a chance to present witness and a fair hearing manner;

4.    Tribunal member did not attended the case and material produced before and after;

5.    The RRT made jurisdictional error in denying the application for Refugee Class XA in failing to consider all the facts and the law related to the refugee claims

6.    RRT failed to accept witness statements and telephonic interview, Tribunal did not consider the current state of prosecution and fear of death threats to his life, parent's & other family members

7.    RRT failed to acknowledge the fact that Australia has protection obligations and accepted my claims in fair manner

FCCA Judge’s consideration

23    Before considering each of the grounds, the FCCA Judge:

(1)    Noted the way CHH16 had completed “Part 3 – Witnesses” of the “Response to hearing invitation – MR Division” and concluded that the response “TBA” meant “to be advised”. His Honour noted that throughout almost all of the process, CHH16 had been advised by a firm of solicitors and migration agents and that CHH16 did not attend the hearing with any person from whom he wished the Tribunal to take evidence.

(2)    Noted that the Tribunal set out the “lengthy” history of its invitation for CHH16 to attend the hearing and its attempts to conduct it at DR[7]-[27] and set those paragraphs out in full (they are summarised at [8]-[17] above).

(3)    Noted the Tribunal’s conclusions concerning CHH16’s claims.

24    In relation to the first ground, the FCCA Judge noted that it was “not easy to understand” but insofar as it meant that the Tribunal did not allow CHH16 to take evidence, or did not hear evidence from a witness other than CHH16, it must be rejected. His Honour noted that the Tribunal had given CHH16 the opportunity to indicate whether or not he wished to have a witness give evidence at the hearing, and ultimately he did not bring any witness to do so. Insofar as the ground asserted that the Tribunal did not give CHH16 time to make further submission, the factual foundation for the claim was rejected. His Honour noted that the decision record discloses that the Tribunal gave CHH16 a further seven days after the hearing to do so and he did not take up the opportunity. If the ground was meant to assert that the Tribunal did not consider CHH16’s own evidence, the FCCA Judge also rejected that basis, noting that the Tribunal’s “close analysis” of CHH16’s evidence at DR[42]-[80]. His Honour rejected the first ground. His Honour dismissed the third and fourth grounds for essentially the same reasons.

25    In relation to the second ground, the FCCA Judge noted that there was no independent assessment reviewer in this case and that the ground appears to relate to some other decision. His Honour found that, insofar as the ground focuses on procedural fundamentals, every opportunity was afforded to CHH16 to take his right to appear, give evidence and present arguments at the hearing in relation to the issues arising in respect of the decision under review, noting the adjournments and brief adjournments during the hearing in order to allow CHH16 to recover from brief discomfort or feelings of unwellness. His Honour rejected the second ground.

26    The FCCA Judge rejected the fifth ground on the basis that the Tribunal was not obliged to consider his refugee claims insofar as “refugee claims” are understood to be claims that satisfy the criterion in s 36(2)(a) of the Migration Act; CHH16 had already made an application based on that criterion. His Honour relied on AMA15 v Minister for Immigration and Border Protection (2015) 244 FCR 131; FCA 1424.

27    The FCCA Judge also rejected the sixth ground, saying that the reference to the Tribunal’s failure “to accept witness statements and telephonic interview” was difficult to understand on the facts of this case as the only witness statement was CHH16’s own. His Honour found that the balance of the ground was addressed not to any jurisdictional error but, properly understood, it was an assertion that the Tribunal was wrong to reject CHH16’s claims and as that went to the merit of the Tribunal’s decision, it was beyond the jurisdictional competence of the FCCA.

28    The FCCA Judge rejected the seventh ground on the basis that it raised the merits of the Tribunal’s decision and therefore could not support the relief that CHH16 sought.

29    The FCCA Judge considered a further matter which was brought to his attention by the Minister. That was the existence of a certificate purporting to have been issued under s 438 of the Migration Act. His Honour noted that a similar certificate was considered by Beach J in MZAFZ v Minister for Immigration and Border Protection     [2016] FCA 1081; 243 FCR 1. However, unlike that case, the FCCA Judge found that the existence of the certificate did not give rise to jurisdictional error. His Honour noted that the certificate related to a request by the Department for confirmation of biographical details and there was nothing in the Tribunal’s decision record that suggests that it acted on the certificate in any way that might result in procedural unfairness. Further, his Honour could not see that the failure of the Tribunal to bring the existence of the certificate to CHH16’s notice might have deprived him of a different outcome as the request was irrelevant to the matters considered by the Tribunal.

Appeal

Grounds

30    The appellant relied on the following grounds (as written):

I.    His Honour did not allow to submit more testimony and made jurisdictional omission

 2.    His Honour did not properly consider the witness presented to RRT

3.    His Honour errored by not properly considering the procedural error made by the Refugee Review Tribunal

 4.    His Honour did giver a chance to present witness and a fair court hearing

 5.    His Honour did not attend the case and material produced before court

 His Honour did not refer the matter back to RRT to review the hearing

Submissions

31    The appellant did not file written submissions and he appeared in person at the hearing. The Minister did file brief written submissions and was represented by counsel at the hearing. The proceedings were conducted with the assistance of an interpreter.

32    The Minister’s submissions were read to the appellant by the interpreter and he was given an opportunity to make oral submissions in relation to each ground. In relation to the first ground, the appellant submitted that he wanted to provide more testimony to the Tribunal (which he referred to as the RRT), but did not get a chance. In relation to the second ground, the appellant submitted that the “RRT” rejected his submission. In relation to the third ground he said that he did not know what the ground meant but he felt that the RRT did not consider his claims properly. The appellant offered no comment on the fourth and fifth ground. He submitted that the grounds had been prepared by a lawyer, he did not understand them and he was not in a position to afford a lawyer to represent him.

Consideration

33    It is notable that the appellant cast his submissions in relation to the “RRT” rather than the reasons of the FCCA Judge. The grounds reflect aspects of the grounds of review considered by the FCCA Judge and the Court will take those submissions to mean that the FCCA Judge erred in not finding that the Tribunal had fallen into jurisdictional error in the ways raised in the grounds.

34    In relation to the first ground, there is nothing in the FCCA Judge’s reasons which would indicate that the appellant was refused the opportunity to “submit more testimony” and there is no transcript of the proceedings in evidence. The Minister submitted that CHH16 did not seek to submit further evidence to the FCCA Judge that was relevant to establishing jurisdictional error by the Tribunal and the ground must therefore fail. The Minister also submitted that if the ground is intended as a repetition of the first ground of the application to the FCCA (which would appear to be the case based on the appellant’s oral submissions), it must fail for the reasons given by the FCCA Judge. The Court accepts those submissions and rejects the first ground of appeal.

35    The second ground is difficult to interpret. At the hearing of the appeal, the appellant did not appear to understand the word “witness”; he appeared to equate it to “testimony”. Dealing with the ground as written, the appellant indicated his desire to have a witness in each of his “Response to hearing invitation – MR Division” forms, he never provided details of the witness and none appeared at the hearings. The Minister pointed out that the only witness in the Tribunal’s proceedings was CHH16 himself, as noted by the FCCA Judge in his rejection of the sixth ground. Further, the Tribunal allowed the appellant seven days after the final day of the resumed hearing to submit any further material on which he wished to rely, but he did not. The Court accepts the Minister’s submissions. The appellant’s complaint raised in oral submissions – that the “RRT” rejected his “submission” appears to be cavilling with the Tribunal’s decision and that alone does not disclose error by the Tribunal or the FCCA Judge. This ground must be rejected.

36    In relation to the third ground, the appellant was not (understandably) able to identify the Tribunal’s error but said that he felt that his “submission” had not been considered properly. That submission cannot be accepted. As found by the FCCA Judge at J[29], the Tribunal “closely followed” its obligation to afford the appellant procedural fairness in the way prescribed by Pt 7 of the Migration Act and, as exhibited at DR[42]-[80], the Tribunal carefully considered his claims to protection as a refugee and considered his claims to complementary protection at DR[83]-[102], including by reference to country information. This ground is not made out.

37    The fourth ground must fail for the same reasons as the first ground in relation to the claim that the FCCA Judge did not give the appellant an opportunity to present witnesses. The appellant has not identified in what way he says that the proceedings before the FCCA Judge were not fair. The mere fact that the FCCA Judge did not remit the matter back to the Tribunal is not indicative of unfairness, it only cavils with the outcome. In the absence of greater particularity, this ground must also fail.

38    The fifth ground also lacks particularity. The Minister submitted that it is evident from the FCCA Judge’s reasons that his Honour did closely attend to the material presented. That submission is accepted on the basis of the material contained in the Court Book in the FCCA proceedings which formed most of the Appeal Book in this matter and his Honour’s reasons.

39    The Minister concedes that the s 438 certificate issued in this case was invalid. The Minister referred to the High Court’s decision in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 93 ALJR 252; 363 ALR 599 at [45]-[48] per Bell, Gageler and Keane JJ and submitted that to succeed in establishing that the Tribunal’s failure to notify the appellant of the existence of the certificate constituted jurisdictional error, CHH16 must be able to show that it was material in the sense that there was a realistic possibility that the notification resulted in the appellant being deprived of a successful outcome. Like the FCCA Judge, the Court does not see a basis on which the request for confirmation of biographical information, which was the subject matter of the certificate, could have operated to deprive CHH16 of a successful outcome.

Conclusion

40    As all of the grounds of appeal are rejected, the appeal is dismissed with costs.

Associate:

Dated:    15 August 2019