AHT16 v Minister for Immigration and Border Protection

1. The application for an extension of time and leave to appeal be dismissed.
2. The appellant do pay the first respondent's costs to be assessed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLVIN J: 1 The appellant has been in Australia since 1997. He made an application for a protection visa which was refused. He sought judicial review over a considerable period, but his review applications were ultimately unsuccessful. 2 On 5 February 2014, the appellant made a further application for a protection visa which was refused by a delegate of the Minister. He applied to the Administrative Appeals Tribunal for a review of that decision. He raised a number of grounds before the Tribunal. For present purposes, the ground that is relevant was expressed by the appellant to the Tribunal in the following way: I am in Australia since 1997. I am a supporter and member of the Bangladesh Nationalist Party (BNP). I fear if I go back I will face a real risk of harm on the basis of the following grounds: a) My political opinion supporting the BNP; b) I will be perceived as a person with wealth and the criminal elements, particularly the criminal element associated with the Awami League party and will target me to extort money from me. I fear I cannot get state protection in Bangladesh because the authorities are either unable or unwilling to protection me. I fear even if I move to other parts of Bangladesh I will continue to face harm. See my detailed statement to follow. 3 Subsequently, the appellant provided a statutory declaration which included the following: Further, I suffer significant medical issues and fear I will not be able to get adequate medical service in Bangladesh if I continue to express my political opinion supporting the BNP party. In addition, due to the medical issues I mentioned earlier, I cannot get employment which I fear will affect my ability to survive in Bangladesh. 4 Amongst other medical information, the appellant submitted to the Tribunal a treatment progress report from a psychologist. The report described the appellant's then current presentation as being for major depression with anxiety. The appellant also gave evidence of multiple morbidities that he suffered including high blood pressure, high cholesterol, Type 2 diabetes, stomach problems, hearing problems including right ear damage, a sleep disorder and a kidney operation. 5 The Tribunal approached the matter on the basis that it could only consider claims in relation to complementary protection relying upon the decision in AMA15 v Minister for Immigration and Border Protection [2015] FCA 1424; (2015) 244 FCR 131. 6 As to complementary protection, the Tribunal accepted (at [27] of its reasons) that: the applicant has a number of medical conditions as well as a major depressive disorder with mixed anxiety, and takes a number of medications on a regular basis. …. The passage of time and the applicant's medical conditions and medications affect his ability to recall. 7 Further, after considering the evidence, the Tribunal then found (at [52] of its reasons): the applicant's concerns, as expressed in the hearings, were about being able to afford access to medical services. He did not mention any concern about being unable to get adequate medical services if he continues to express his political opinion supporting the BNP party. The Tribunal notes the applicant had earlier told the Tribunal he would not be involved in politics or the BNP if he returned to Bangladesh, and as noted above the Tribunal does not accept the applicant would support the BNP if he returned to Bangladesh, and it does not accept there is a real risk the applicant would be imputed with a political opinion of support for the BNP if he returned to Bangladesh. The Tribunal does not accept there is a real risk the applicant will be unable to get adequate medical services if he returns to Bangladesh and continues to express his political opinion supporting the BNP party (which the Tribunal does not accept he would do). 8 The Tribunal then dealt with the work history of the appellant. Dealing with a separate claim that because of his medical issues he would not be able to get employment in Bangladesh which would affect his ability to survive, the Tribunal then found (at [55] of its reasons): The Tribunal finds the applicant was working full time in Australia until recently, and had done so, despite his medical conditions, for at least the last six years. The Tribunal finds the applicant is currently working three days a week for four hours a day, and is planning to increase his hours back to full time work. The Tribunal is not satisfied the applicant would be unable to find employment in Bangladesh due to his medical issues. On the evidence before it the Tribunal is not satisfied the applicant would be unable to find employment in Bangladesh, or that he would be unable to subsist or survive in Bangladesh. 9 The Tribunal dismissed the application. 10 The appellant sought review in the Federal Circuit Court. One of the grounds raised was: The Tribunal member erred when he assumed that I would be fit for full time work in Australia soon. There is a treatment plan, but its conclusion to full time work depends on my health improving. He also did not consider how my treatment plan would continue. 11 The ground as expressed appeared to raise a complaint that the appellant was not fit for full time work because his treatment plan had not been concluded and there was error by the Tribunal in the way it dealt with that matter. 12 As to this ground, the Federal Circuit Court found: … the Tribunal found that the applicant had been working in Australia despite various medical conditions and continued to work part-time. The Tribunal was not satisfied he would be unable to find work in Bangladesh. Again there is no substance in this ground. No arguable case arises in the circumstances. 13 All other grounds raised in the Federal Circuit Court were found to seek impermissible merits review. On that basis, the Federal Circuit Court found that there was no arguable case for relief. 14 The appellant now seeks an extension of time in which to appeal to this court. The application was made on 4 December 2017. The extension of time that is sought is seven days. The Minister accepts, quite properly, that he would suffer no prejudice from the delay. However, it is submitted that the appeal has little or no prospects of success and there would be no substantial injustice if leave was refused. 15 The proposed appeal ground is expressed as follows: The Court below erred in dismissing the treatment plan relied upon by the Appellant as turning on the adverse credibility findings made against the Appellant when they clearly must turn on the credibility of his doctors. 16 At the hearing, I asked the appellant about the treatment plan and the nature of his complaint. He did not refer to the treatment progress report that had been submitted to the Tribunal by the psychologist. Rather, he explained his ongoing need for medical treatment. He described ligament damage in his leg from which he was still recovering. In this regard, I note that the Tribunal considered evidence that he had undergone surgery to his leg about three months before the hearing and was slowly returning to work with a plan to increase his work hours back to full time work over a period of time (at [16] of its reasons). 17 In response to a request to describe his concern about what occurred in the Federal Circuit Court, he said that he did not understand law, that he needed the medical treatment and he would like the Court to see whether the Federal Circuit Court made a mistake. He also described his medical condition. 18 In those circumstances, the appeal has little or no prospects of success for the following reasons. 19 First, the ground in the application is formulated as a challenge to the decision of the Tribunal. Significantly, it was not a matter for the Federal Circuit Court to make findings as to how the appellant's ability to work might be affected by a treatment plan. 20 Second, at the hearing before me it was clear that the appellant's concern was in relation to the availability of medical treatment if he returned to Bangladesh. The Tribunal considered all of those matters and made factual findings as to the availability of medical treatment. Those findings are supported by logical reasoning and, on my examination, do not appear to be legally unreasonable. 21 Third, the Tribunal did not assume that the appellant would be fit for work. Nor did it make a finding dismissing the treatment plan. Rather, it made a finding that the medical condition of the appellant did not mean that he was unable to find employment in Bangladesh. It also found that the appellant was planning to increase his hours back to full time work. This was consistent with the appellant's evidence to the Tribunal as recorded by the Tribunal. 22 Fourth, there is no evident jurisdictional error in relation to the approach by the Tribunal to medical evidence or progress back to full time work. The Tribunal did not reject the medical evidence or the appellant's evidence as to his plan to return to work as not being credible. The finding about the ability to work was based on the appellant's own evidence and was a matter within the jurisdiction of the Tribunal. 23 Finally, this is not a case where there is some other reason why leave might be given such as the prospect of an alternative ground being formulated that may have merit. As found in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62] it will seldom be in the interests of the administration of justice to grant leave when an appeal has little or no prospects of success. 24 For those reasons the application for an extension of time should be refused with costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin.