AJE18 v Minister for Home Affairs
[2019] FCCA 3365
•21 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AJE18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 3365 |
| Catchwords: MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise visa – extension of time application – reasonable prospects of success – extension of time granted – substantive application reviewed – no jurisdictional error established – application dismissed. |
| Legislation: Migration Act 1958, s.477 |
| Cases cited: Collector of Customs v Pozzolanic [1993] FCA 456 |
| Applicant: | AJE18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent | IMMIGRATION ASSESSMENT AUTHORITY |
| File number | MLG 213 of 2018 |
| Judgment of: | Judge Blake |
| Hearing date: | 10 October 2019 |
| Date of Last Submission: | 10 October 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 21 November 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Forster |
| Solicitors for the Applicant: | Sentil Solicitors |
| Counsel for the Respondents: | Ms Campbell |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
Pursuant to s.477(2) of the Migration Act 1958 the time for the Applicant to file an application in respect of the decision of the Immigration Assessment Authority dated 30 June 2017 be extended to 29 January 2018.
The Application filed on 29 January 2018 and amended on 17 September 2019 be dismissed.
The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $7,467.
Order 1 of the Orders made by Judge McNab on 11 July 2018 be discharged.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 213 of 2018
| AJE18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
And
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Immigration Assessment Authority (‘Authority’) on 30 June 2017. In that decision, the Authority affirmed a decision of a delegate of the Minister (‘delegate’) not to grant the Applicant a Safe Haven Enterprise (subclass XE-790) visa (‘visa’).
The application for review was filed in this Court on 29 January 2018. This is well outside the time limit prescribed by section 477(1) of the Migration Act 1958 (‘Act’). Accordingly, the Applicant also seeks an order extending the period of time in which to make the application.
For the reasons that follow, I have decided to extend the period of time set out in the Act to permit the Applicant to file the application out of time. I have decided, however, that the substantive application must be dismissed. My reasons for this decision are set out below.
Background
The Applicant is a Sri Lankan Tamil of Catholic faith. He departed Sri Lanka on 19 October 2012, and arrived at Cocos Islands on
3 November 2012.
The Applicant applied for the visa on 7 March 2016. The application for the visa was subsequently refused by a delegate of the Minister on
15 November 2016.
The matter was referred to the Authority on 18 November 2016. The Authority affirmed the decision of the delegate on 30 June 2017.
The Applicant made an application to this Court for judicial review of the Authority’s decision on 29 January 2018.
The Applicant subsequently filed an Application in a Case and an Affidavit affirmed by his previous solicitor, Kajaliny Ranjithkumar, on 9 July 2018. The Applicant sought an injunction restraining the Minister from making any future decision, such as arranging the deportation of the Applicant, until such time as this proceeding and any appeal be dealt with.
Judge McNab made the following Orders on 11 July 2018:
a)The Minister for Home Affairs, officers of the Department of Home affairs and Australian Border Force are restrained from removing the applicant from Australia pending determination of his application; and
b)Costs be reserved.
An amended application was subsequently filed on 17 September 2019 (‘Application’). The Applicant also relies on various affidavits filed in the proceeding, including affidavits made on 26 January 2018, 9 July 2018 and 11 July 2018, and written submissions filed on 17 September 2019.
The Minister relies on written submissions filed on 26 September 2019.
Extension of Time Application
Legal Principles
Section 477(1) of the Act requires an application for review to be made to this Court within 35 days of the date of the relevant decision.
Under section 477(2) of the Act, this Court may extend the 35 day time period for the filing of an application where the Court considers it is in the interests of the administration of justice to do so.
The expression ‘in the interests of the administration of justice’ is not defined in the Act. This Court has, however, adopted the non-exhaustive principles set out by the Federal Court in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 (see also SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [15] – [19]) when determining whether an extension of time should be granted. The principles to be considered include the following:
a)The extent of the delay;
b)The explanation of the delay;
c)Any prejudice to the Respondents;
d)The impact on the Applicant;
e)The interests of the public at large; and
f)Whether the substantive case is ‘sufficiently arguable’ to warrant the extension of time. It is seldom in the interests of justice to exercise the discretion to extend time where an appeal has little or no prospects of success: see MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [6] and [16]; SZTDC v Minister for Immigration and Border Protection [2014] FCA 1298 at [48].
At the hearing the Minister opposed the Court exercising its discretion to extend the time period. That opposition was based on two principal grounds. First, the Applicant had not provided a sufficient explanation for the delay. Second, that the grounds of review contained in the Application have no merit.
Explanation for the Delay and Prejudice
The Applicant set out the following grounds in the Application in support of his submission to extend the time limit imposed under section 477(1) of the Act:
‘The applicant had appointed a Migration Agent/ Lawyer who is a partner of a reputable firm.’
‘The IAA send the decision to the applicant's previous address.’
‘The Applicant notified the Department of Immigration about the change of address.’
The affidavit material filed by the Applicant supported the explanation for the delay contained within Application. The affidavit material discloses that the Applicant changed his address two days before the Authority issued its decision. Notification of this change of address was sent to the relevant Department some days after, but not before the decision of the Authority had been issued. The first the Applicant knew of the decision was in December 2017 when he was detained by Boarder Force. He then took steps to obtain advice and file the application for review.
In the circumstances above, I am satisfied the Applicant has an explanation for the delay in filing the application for review.
The extent of the delay (178 days) is significant. Ordinarily, a delay of this length would be a factor adverse to the Applicant. In light of the explanation for the delay, however, I do not attach any weight to the extent of the delay.
There is little prejudice to the Minister if an extension of time were granted. On the other hand, the impact on the Applicant of not extending time is significant – he would be returned to Sri Lanka, a country in which he claims he would, among other things, face significant harm.
The merits of the substantive application
The remaining issue in relation to whether an extension of time should be granted is to consider the merits of the Application.
The Minister opposed the application on the basis that there was insufficient merit in the proposed grounds of review to warrant the extension of time. The authorities confirm that if an extension of time is to be granted, the Court must be satisfied that it is necessary in the interests of justice to do so: SZSZW v Minister for Immigration and Border Protection [2018] FCAFC 82 at [27]. Further, whether an extension of time should be granted will depend upon the particular circumstances of each case: Mentink v Minister for Home Affairs [2013] FCAFC 113 [32] – [38].
In MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110, a Full Court of the Federal Court of Australia endorsed statements by Mortimer J that the approach to be taken to a preliminary examination of the merits of the substantive application necessarily involves recognition that the grounds had not been fully considered, developed and argued as if on final hearing. Accordingly, it is not appropriate when exercising the discretion to extend time to undertake a full consideration of the merits of the substantive application. Mortimer J, at [62]-[63] of her decision in MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 reasoned as follows:
‘[62] . . . it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless.... If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see . . . Jackamarra v Krakouer [1998] HCA 27) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
[63] The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” ...’
The Full Court endorsed Mortimer J’s use of the criterion ‘reasonable prospects of success’. This is a criterion that poses a lower threshold than that is to be applied on the final determination of the issues in a proceeding.
When regard is had to what I set out above, the merits of the application need to be evaluated at a reasonably impressionistic level such that the Court is satisfied to a degree of confidence whether the grounds of review are arguable, reasonably arguable, sufficiently arguable or plainly hopeless.
For the reasons set out in the course of my consideration of the substantive application below, considering the substantive application on an impressionistic basis, I am satisfied that the Application is not without reasonable prospects: at least, that it is not hopeless and bound to fail. The extension of time is allowed.
As the matter was fully argued, I have proceeded to determine the substantive application on a final basis. For the reasons that follow however, I have concluded that no ground of judicial review is made out.
The Grounds of Review
The Application sets out seven grounds of review. At the commencement of the hearing, Counsel for the Applicant indicated to the Court that grounds 1 – 3 were abandoned and no longer pressed. I therefore proceed to examine grounds 4 – 7 below. Given the way matters developed during the hearing, I deal with grounds 4 and 5 together.
Grounds 4 and 5
Ground 4 is as follows:
‘The IAA erred when it was 'satisfied, if the applicant did require more intensive treatment including hospitalisation, this could be offered in his district of Colombo', and the IAA further erred when it was also satisfied the applicant 'would be able to seek mental health care in Sri Lanka if he was to require it', and so the applicant 'does not have a real chance of serious harm arising from his Diagnosed PTSD.' (para 40)
Particulars
1. At para 38, the IAA noted the psychiatrist noted there was indisputable evidence of chronic post traumatic stress disorder; and the IAA accepted and found the applicant is suffering from PTSD and this may be exacerbated by a return to Sri Lanka.
2. At para 39, the IAA considered whether the applicant will be able to access appropriate care if he was to return to Sri Lanka. The IAA then considered information in referred materials:
a. The main mental hospital in Sri Lanka is at Colombo which operates 2 residential facilities;
b. Every District in Sri Lanka apart from Monaragala in the south east has a hospital offering treatment for mental health;
c. The WHO has commented that Sri Lanka's progress in the mental health sector is commendable and it has achieved am (sic) significant improvement in human resources development and the expansion of resources and facilities;
d. The WHO said that Sri Lanka ''is doing much better in the field of mental health when comparing with the world status" (but did not further describe what these words meant - added);
e. On the other hand, the UN has expressed a concern that mental health services remain insufficient to cope with widespread post conflict mental disorders;
f. Other information indicates that the government provides free healthcare for the public at all state hospitals, which are located in almost every city as well in major towns. These are equipped with modern equipment and provide a range of medical services, although it is noted that these hospitals can be congested;
g. There is also a private health system but this is expensive and the cost would be borne almost entirely by the user.
3. At para 40, the IAA took into account the health care system in Sri Lanka may face some difficulties, that the applicant has not been previously hospitalised and is undertaking as-needs counselling; and stated "I am satisfied that if he did require more intensive treatment including hospitalisation, this could be obtained in his District or in Colombo. I am therefore satisfied that the applicant would be able to seek mental health care in Sri Lanka if he was to require it. I find that the applicant does not have a real chance of serious harm arising from his Diagnosed PTSD."
4. The latter conclusion is unreasonable and was not based upon any sufficient material, the material being insufficient to enable the IAA to make such conclusions, in particular,
i. the information did not set out the nature of the various mental health facilities and resources, and whether they would be able to treat the applicant's PTSD were it to be aggravated;
ii. The information did not set out the competing treatment needs by others who may have similar or worse mental health issues, and whether the applicant would be able to receive treatment over them;
iii. The information did not provide information that would enable a reasoned opinion to be made about whether the applicant would be accepted by the relevant facility, able to travel to the relevant facility, or able to pay for any such treatment that may be required, which information would be required at a minimum to be provided in order for the IAA to be able to reasonably provide a view concerning whether or not the applicant would face a real chance of harm arising from his Diagnosed PTSD.
Further, the IAA noted (para 38) there was indisputable evidence of chronic post- traumatic stress disorder yet the IAA did not refer to the condition being chronic when proffering its opinion/ findings in para 40, thereby ignoring an aspect of the condition that could affect the nature of the treatment required should the applicant return to Sri Lanka.
5. The making of the conclusions without a proper evidentiary basis to support them indicates that the conclusions were unreasonable, the IAA thereby committing jurisdictional error.’
Ground 5 is as follows:
‘The IAA erred when it was 'satisfied, if the applicant did require more intensive treatment including hospitalisation, this could be offered in his district of Colombo', and the IAA further erred when it was also satisfied the applicant 'would be able to seek mental health care in Sri Lanka if he was to require it', and so the applicant 'does not have a real chance of serious harm arising from his Diagnosed PTSD.' (para 40)
Particulars
1. See Particulars 1 - 4 in Ground 4 above.
2. The IAA failed to engage intellectual process in making the above conclusions, in that the IAA made conclusions without properly considering same and when the material was insufficient to enable the IAA to make such conclusions, in particular
i. the information did not set out the nature of the various mental health facilities and resources, and whether they would be able to treat the applicant's aggravated PTSD;
ii. The information did not set out the competing treatment needs by others who may have similar or worse mental health issues, and whether the applicant would be able to receive treatment over them;
iii. The information did not provide information that would enable a reasoned opinion to be made about whether the applicant would be accepted by the relevant facility, travel to the relevant facility, or pay for any such treatment that may be required, which information would be required at a minimum to be provided in order for the IAA to be able to reasonably provide a view concerning whether or not the applicant would face a real chance of harm arising from his Diagnosed PTSD.
3. The failure to consider the information provided and what was reasonably necessary to support the conclusions given, ·and to ignore the chronic nature of the condition, indicates that the IAA failed to engage intellectual process, thereby committing jurisdictional error.’
As can be seen from each of the grounds above the Applicant takes issue with the conclusions in paragraph [40] of the Authority’s decision. Paragraph [40] is as follows:
‘I take into account that the health care system in Sri Lanka may face some difficulties, although the information above is now some five years old. I also take into account that the applicant has not previously been hospitalised and is undertaking as-needs counselling. There is no evidence before me that indicates that the applicant would require hospitalisation in Sri Lanka, although I accept this could be needed if his condition deteriorates. However, I am satisfied that if he did require more intensive treatment including hospitalisation, this could be obtained in his district or in Colombo. I am therefore satisfied that the applicant would be able to seek mental health care in Sri Lanka if he was to require it. I find that the applicant does not face a real chance of serious harm arising from his diagnosed PTSD.’
At the hearing, the Applicant somewhat developed the points contained in the Application. I understood the Applicant’s arguments in relation to grounds 4 and 5 of the Application to be as follows:
a)the information before the Authority was insufficient to support the conclusion drawn by the Authority at paragraph [40];
b)the conclusion reached by the Authority at paragraph [40] was unreasonable; and
c)the Authority did not sufficiently engage with the material in the course of reaching its conclusion at paragraph [40].
The Minister accepted that, if the Court was satisfied that any of the matters above, they would be sufficient to constitute jurisdictional error.
A proper assessment of the Applicant’s submissions begins with a consideration of paragraphs [38] and [39] of the Authority’s decision. In those paragraphs, the Authority examines the issue of the Applicant’s Post Traumatic Stress Disorder (‘PTSD’). Paragraphs [38] and [39] are extracted below for convenience:
‘38. The applicant claims to suffer PTSD and has provided a report from a consultant psychiatrist, dated 29 September 2016, in support of this claim. The report diagnoses chronic PTSD that has been ‘recently amplified’ by the applicant’s protection visa process. The applicant has also provided a report from Companion House, an organisation that works towards assisting survivors of torture and trauma. From these reports I note that the applicant has undergone counselling and has attended a Tamil Men’s Group in Australia since 2013. His counselling was initially done weekly but by September 2016, it was being undertaken on an “as needs” basis. There is nothing in either report to indicate that he has asked for or been assessed for any residential-based programs. Both reports note that the applicant is anxious about returning to Sri Lanka and that a return may exacerbate his PTSD. I accept the evidence in these reports and I find that the applicant is suffering from PTSD and that this may be exacerbated by a return to Sri Lanka.
39. I have considered whether the applicant will be able to access appropriate care if he was to return to Sri Lanka. Information in the referred materials indicates that the main public mental health facility in Sri Lanka is the National Institute of Mental Health (NIMH), which operates two residential facilities in Colombo. In addition, every district in Sri Lanka apart from Monaragala (in the south-east) has a hospital offering treatment for mental health. The World Health Organisation (WHO) has commented that Sri Lanka’s progress in the mental health sector is commendable and it has achieved a significant improvement in human resources development and the expansion of resources and facilities. The WHO said that Sri Lanka “is doing much better in the field of mental health when comparing with the world’s status”. On the other hand, the UN has expressed a concern that mental health services remain insufficient to cope with widespread post-conflict mental disorders. Other information indicates that the government provides free healthcare for the public at all state hospitals, which are located in almost every city as well as in major towns. These are equipped with modern equipment and provide a range of medical services, although it is noted that these hospitals can be congested. There is also a private health system but this is expensive and the cost would be borne almost entirely by the user.’ (footnotes omitted)
A decision of the Authority may only be vitiated for being unreasonable on the basis of ‘extreme illogicality’: see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [148]. A decision cannot be said to be illogical, irrational, or unreasonable simply because reasonable minds might have come to a different conclusion or because a possible conclusion has been preferred over another possible conclusion. It is a further well-known principle in matters such as this that the reasons of administrative decision-makers should not be scrutinised ‘minutely and finally with an eye keenly attuned to the perception of error’: the Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30], citing Collector of Customs v Pozzolanic [1993] FCA 456.
The complaint by the Applicant that the Tribunal had before it insufficient information to reach the conclusions that it did also needs to be assessed against comments made by the High Court of Australia in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 (‘SZIAI’). In that matter, the High Court made it clear that it is up to an applicant for a visa to make his or her case, and further, there is no general duty on a body, such as the Authority, to undertake its own enquiries in addition to any information that has been provided to it by applicant, or by other means under the Act: see paragraphs [1] and [18] of SZIAI.
I have carefully reviewed the reasons of the Authority. In my view, the following matters become apparent when paragraphs [38] and [39] are read in context. These are as follows:
a)the Authority carefully considered two reports dealing specifically with the Applicant’s PTSD;
b)the Authority considered country information relating to the healthcare system in Sri Lanka and mental health services in Sri Lanka;
c)the Authority carefully weighed the evidence. Among other things, it:
i)accepted that the Applicant was suffering from PTSD and that his PTSD may be exacerbated by a return to Sri Lanka;
ii)noted the availability of health care and mental health services in Sri Lanka, including potential limitations in accessing those services;
iii)acknowledged there may be difficulties with the healthcare system in Sri Lanka;
iv)noted that the Applicant had not previously been hospitalised for his PTSD, and noted that there was no evidence the Applicant would require hospitalisation in Sri Lanka;
d)having undertaken the exercise above, the Authority reached the conclusions now the subject of attack from the Applicant. That is, the Authority concluded that the Applicant could access more intensive treatment in Colombo and could seek mental health care in Sri Lanka if he required it.
When the principles set out earlier are applied to this matter, and having regard to what I have set out above in relation to the way the Authority approached its task, I am unable to discern any error that the Authority may have committed. In my view, the decision of the Authority was not unreasonable for the reasons advanced by the Applicant.
A subset of the complaint contained within ground 4 is that the Authority did not, in setting out its conclusion at paragraph [40] of its decision, refer to the Applicant’s PTSD as being ‘chronic’. That omission is said to further support the proposition that the Authority has reached conclusions without a proper basis and has failed to engage in a proper intellectual process.
With respect, the submission above is one I am unable to accept. A proper reading of paragraph [38] of the Tribunal’s decision discloses that the Authority clearly had before it reports pertaining specifically to the Applicant’s mental health. Indeed, the second sentence of paragraph [38] clearly references the Applicant’s diagnosis of ‘chronic PTSD’. Having noted the diagnosis as being that of ‘chronic PTSD’ at paragraph [40], the Authority specifically refers to the Applicant’s ‘diagnosed PTSD’. In my view, a fair reading of the decision indicates that the Authority was acutely aware of the Applicant’s PTSD as being a chronic condition.
There is one final matter to consider in respect of these grounds of review. The Applicant’s claim in respect of his PTSD does not have a nexus to the 1951 Refugee Convention. It is the case that health issues may attract the protection of the Convention, but only if they are linked to one of the limbs of the Convention that mandate protection. This might, for example, the claim that a person has been denied healthcare on the basis of their ethnicity. That is not, however, claim that is made here. Accordingly, to the extent it might be said that it is arguable an error had been made in relation to the way in which the Authority dealt with the Applicants PTSD, it is not error that would be material in respect of any review.
For all of the above reasons, I find that grounds 4 and 5 have not been made out.
Ground 6
Ground 6 is as follows:
‘The IAA erred when it failed to consider cumulatively the various claims, including the claim (para 41) that villagers are upset with the applicant because he was in the LTTE and as a result, their sons have been taken in for questioning by the authorities, thereby constructively failing to properly consider all the applicant's claim.
Particulars
The cumulative assessment fails to refer to this claim (paras 53 & 57).’
Consideration of this ground of review commences with a review of paragraph [41] of the decision of the Authority. In paragraph [41], the Authority gives express consideration to the Applicant’s claim about his treatment by villagers. Paragraph [41] provides as follows:
‘Harm from other villagers
41. The referred materials (including the psychiatrist’s report referred to above) appear to raise a claim that other villagers are upset with the applicant because he was in the LTTE and as a result, their sons have been taken in for questioning by the authorities. At the interview, the applicant said that when he was detained following the bomb-blast, he was forced to identify people but he has not provided any further evidence in relation to this claim and there is nothing in the referred materials to indicate that he has suffered any harm from any persons in his village. I take into account that the statements made by S, K and P all relate to incidents involving the authorities and do not refer to other villagers. The applicant (who was assisted by a specialist migration law firm) was given a number of opportunities to provide any additional information and to make additional claims and did not do so. On the basis of the information before me, I am satisfied that the applicant has not suffered any harm, harassment, abuse or mistreatment by any persons in his village, arising from his forced recruitment by the LTTE. I am satisfied that he does not face a real chance of serious harm by any persons in his village should he return to Sri Lanka.’
The complaint that the claim about the Applicant’s treatment by villagers was not considered by the Authority when it assessed the Applicant’s claims cumulatively cannot, however, be sustained. I am of this view for the following reasons. Firstly, the express claim was dealt with specifically as noted in the paragraph above. This is not a case where there was a failure to consider the claim at all. Secondly, the Authority expressly states in paragraph [53] of its reasons that it has considered all of the claims cumulatively. Finally, the Authority makes clear at the outset of the paragraph that it is conducting an ‘overall’ assessment. In view of these matters, the sixth ground of review is not made out and is dismissed.
Ground 7
Ground 7 is as follows:
‘The IAA erred when it stated “... there is no information before me that indicates that the applicant would need to pass through checkpoints or have any other reason to interact with [Mr X]'. (paragraph 34 ), thereby amounting to jurisdictional error. The IAA failed to take into account an aspect of the material before it which was relevant and contrary to the IAA decision at para 34 “I am satisfied that the applicant faces only a remote chance of any interaction with, or harm at the hands of [Mr X], even if [Mr X] remains in the applicant's local area.”’
Particulars
1. The IAA had the psychiatrist's report dated 29 September 2016 before it;
2. The IAA was prepared to accept the applicant's claims in relation to the incidents with [Mr X] (para 27);
3. The report stated at page 2: 'Specifically he mentioned that when he contacts his family about three times per month, he is frequently reminded that the army officer who was responsible for a personally intrusive event (which I will refer to later), ask his parents of his whereabouts.'
4. This portion of the report was not mentioned by the IAA when it was considering whether [Mr X] has maintained an ongoing interest in the applicant and in not accepting that [Mr X] has any interest in the applicant now [ie., 30 June 2017] (paras 27-30, 34);
5. Accordingly there was clear and relevant evidence which was before the IAA from the psychiatrist which the IAA failed to consider, thereby committing jurisdictional error.’
As can be seen from the above, the Applicant takes issue with the conclusion set out by the Authority in paragraph [34] of its decision. Paragraph [34] of the decision of the Authority is as follows:
‘I take into account that even if [Mr X] remains based in the local area, there is no information before me that indicates that the applicant would need to pass through checkpoints or have any other reason to interact with [Mr X] or the SLA. I also take into account that the applicant was able to complain about [Mr X] in 2012 and this complaint was actioned by the authorities. On the basis of all of the above, I am satisfied that the applicant faces only a remote chance of any interaction with, or harm at the hands of [Mr X], even if [Mr X] remains in the applicant’s local area.’
Consideration of this issue must begin with a review of the claims that the Applicant makes in relation to his treatment by Mr X. A review of his claims. which are set out in paragraph [11] of the decision of the Authority discloses, among other things, that a number of his interactions with Mr X occurred at checkpoints where Mr X was stationed.
Having articulated a number of claims made by the Applicant in respect of Mr X, the Authority then proceeded to deal with those claims:
a)At paragraph [27] of its decision, the Authority:
i)accepted the Applicant’s claims in relation to the incidents with Mr X;
ii)noted that all but one of the incidents that occurred with Mr X occurred at a checkpoint;
iii)observed that the Applicant was able to complain about Mr X which resulted in Mr X being transferred for three months; and
b)At paragraph [28] the Authority records, among other things, that ‘the applicant claims that his family has told him that [Mr X] is still in the village has been looking for him’;
c)at paragraph [29] of the decision, the Authority accepts that ‘it is plausible that [Mr X] may have asked [his brother] about the applicants whereabouts, given that the applicant was no longer going out to fish’;
d)at paragraph [30] of the decision, the Authority:
i)accepts Mr X may still be stationed in the local area; and
ii)does not accept the statements from the Applicant’s family that claim Mr X or other SLA members continue searching for the Applicant, harassing his family or questioning them.
When the paragraphs above are examined, it is apparent that the Authority gave very careful consideration and attention to the claims that the Applicant made about Mr X. Importantly, when the paragraphs above are looked at, it is apparent that the Applicant’s claim that his family had told him that Mr X was still in the village and looking for him was considered by the Authority. The fact that the Authority did not specifically mention the psychiatrist report dated 29 September 2016 is not to the point. The Authority expressly recognised the claim made by the Applicant that his family had told him that Mr X was, among other things, still looking for him.
Having recorded that claim at paragraph [30], the Authority did two things. First, it did not accept the statements from the Applicant’s family that Mr X was continuing to search for him. Secondly, it reached the ultimate conclusion in paragraph [34] of its reasons that there was only a remote chance of any interaction between the Applicant and Mr X.
In my view, when the decision is read fairly, the claim that the Authority has failed to consider relevant evidence in relation to this issue is not borne out. As such, ground 7 is dismissed.
For all of the above reasons, the Application is dismissed and the Applicant is to pay the First Respondent’s costs.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Blake
Associate:
Date: 21 November 2019
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