Ajz17 v Minister for Immigration
[2018] FCCA 3081
•1 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AJZ17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3081 |
| Catchwords: MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – protection visa – where Applicant suffers from schizophrenia – whether Tribunal asked the correct question – where Tribunal assessed whether the threat of harm was directed against the Applicant for reason of his membership of a particular social group – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss. 5J, 36 |
| Cases cited: Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 |
| Applicant: | AJZ17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 197 of 2017 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 8 August 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 1 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Albert |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr McDermott |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 197 of 2017
| AJZ17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By application filed on 31 January 2017, as amended in application filed 11 July 2018, the Applicant seeks judicial review of a decision of the Second Respondent (‘the Tribunal’) dated 18 January 2017 in which the Tribunal affirmed a decision of a delegate of the First Respondent (‘the delegate’) not to grant the Applicant a protection (Class XA) (subclass 866) visa (‘the visa’).
The grounds of application going to jurisdictional error in the decision of the Tribunal are as follows:-
“1. The Tribunal erred by failing to consider whether any law that led the Applicant to be detained by the police or authorities as a result of actions caused by his mental illness was ‘appropriate and adapted’, such that it did not amount to discrimination qualifying as persecution for the purposes of s 36(2)(a) of the Migration Act 1958 (Cth).
2. The Tribunal erred by focussing not on the impact of the conduct being persecutory, but on the intent represented by the label (or lack thereof) given by the alleged persecutors. That is, the Tribunal erred by asking the wrong question, which question was concerned with the subjective motivations of the future persecutor of the Applicant.
3. The Tribunal erred by failing to evaluate an integer of the Applicant’s claims for protection under s 36(2)(a) of the Migration Act 1958 (Cth), namely that there was a real chance of ‘serious harm’ in the form of being tied up because of his schizophrenia ‘to preserve the reputation of [his] family and community’.”
The First Respondent submits that the decision of the Tribunal is not affected by jurisdictional error and thus the Applicant’s application should be dismissed with costs.
Background
The Applicant is a citizen of the Republic of Kenya. He belongs to the Kikuyu tribe and comes from a village in the Rift valley, Kenya. He identifies as a Christian. He has a wife in Kenya who lives with their young child in Nairobi.
On 10 October 2014, the Applicant was granted a student (Class TU) (subclass 573) visa with an expiry date of 30 August 2018. On 17 October 2014 the Applicant arrived in Melbourne.
On 30 May 2016 the Applicant’s (Class TU) (subclass 57) student visa was cancelled. The Applicant was granted a bridging visa E on 2 June 2016 which was cancelled on 29 July 2016.
The Applicant’s bridging visa was cancelled due to criminal charges in Australia, those being:-
a)carry controlled weapon without excuse;
b)drunk in a public place;
c)place thing on a railway track;
in relation to which the Applicant was found guilty and released on an undertaking to be of good behaviour for a 12 month period. The Applicant was also to comply with any conditions or directions under the Mental Health Act2014 (Vic).
On 29 July 2016, the Applicant entered immigration detention. He lodged his application for the visa from immigration detention on 24 August 2016. In his application, the Applicant included a statement outlining his claims to engage Australia’s protection obligations. The Applicant attended a protection visa interview at the Maribyrnong Immigration Detention Centre on 21 December 2016 where he made additions and amendments to his earlier written claims.
The Applicant’s protection claims were primarily concerned with his risk of harm by the Mungiki, a violent and lawless militia sect in Kenya. He claimed that because he had come to Australia, the Mungiki believe that he has been a witness against them in the International Criminal Court. The Applicant claimed that if he returns to Kenya, the Mungiki will kill him.
On 17 November 2016, the delegate refused to grant the Applicant the visa. The Applicant applied for review of the delegate’s decision to the Tribunal on 23 November 2016.
On 23 December 2016, the Applicant’s authorised representative provided a written submission to the Tribunal for and on behalf of the Applicant. Accompanying that submission, was an additional statement from the Applicant.
On 9 January 2017, the Applicant appeared at a hearing before the Tribunal, assisted by his authorised representative.
On 13 January 2017, the Applicant’s authorised representative provided the Tribunal with post-hearing written submissions. Relevantly for the purposes of this judicial review proceeding, the authorised representative made submissions about the “harm in Kenya arising from (the Applicant’s) mental illness.”
The Applicant’s mental illness
The post-hearing written submissions provided on 13 January 2017 to the Tribunal which specifically addressed the claims of the Applicant in respect of his mental illness were as follows:-
a)the Applicant was a member of the particular social group “mentally ill persons in Kenya” (‘the group’) and he would be denied medical treatment because of this as the Kenyan government had chosen not to fund mental health services, and the lack of mental health services disproportionately affected members of the group;
b)the Applicant would face harm from the Kenyan authorities and community members because of the consequences of his symptoms and related behaviour if he could not receive adequate medical treatment;
c)the Applicant was at increased risk of harm from Kenyan authorities and community members because of his membership of the group as:-
“... people in Kenya do not try to understand or obtain medical treatment for this behavior [sic] but rather turn to spiritual or home remedies that cause significant harm and worsen the mental health of those already suffering. The authorities and those in the community do not treat everyone in the community in this way, but rather only those who exhibit symptoms of mental illness”;
d)the specific vulnerability of a person with schizophrenia had to be taken into account in assessing what constitutes serious harm;
e)under the heading “Complementary Protection” the Applicant submitted that if a person with mental illness was locked away or restrained, it was because that is the only known way to deal with mental illness. This action would intentionally cause pain and suffering. Further, the Applicant submitted:-
“Given the stigma associated with mental health issues in Kenya ... the motives of family and community members also cannot reasonably solely be attributed to a desire to help but rather can also be regarded as a desire to lock the offending person away to preserve the reputation of the family and community ... the pain and suffering caused by this very brutal pseudo medical treatment is not something that can be considered inadvertent as it is known and intended that this act will lead to pain, suffering and extreme humiliation.”;
f)any form of treatment or punishment the Applicant may face from Kenyan authorities because of his behaviour needed to be considered in light of his personal circumstances, and not “simply enacting a law of general application.” Noting that the Applicant would be subject to the same laws and punishments as everyone else, there remained a real chance that the Applicant would face significant harm from Kenyan authorities or imprisonment, and the chance of this was increased because of the consequences of the Applicant’s symptoms of his schizophrenia. The Applicant specifically feared that if he was imprisoned, and not receiving appropriate medical treatment, his “unstable, erratic and delusional” behaviour may lead to his being subjected to abuse and mistreatment by the prison population; and
g)the Applicant feared harm in Kenya because his ill health would make him express beliefs and articulate thoughts which were prompted by his schizophrenia, rather than rational thought. He feared this would lead to him being locked up or tied up, including by his family. Without medication, his mental illness and behaviour was likely to deteriorate significantly.
The Applicant had made a claim, which was before the delegate, that there was a real risk of him suffering significant harm in Kenya and Rwanda, both countries being members of the East African Community (‘EAC’) intergovernmental organisation (which allows citizens of member states visa free movement throughout the EAC) on account of his mental illness. The Applicant had submitted to the delegate that he was diagnosed with schizophrenia in May 2016 at Goulburn Valley Health (‘GVH’) in Shepparton. The Applicant submitted a number of medical reports evidencing his condition and his treatment from GVH and International Health and Medical Services (‘IHMS’).
The Applicant has ongoing mental health issues. As a result, he was admitted into the mental health department of St Vincent’s Hospital in Melbourne in February 2016, for a two week stay. In May 2016, following a further deterioration of his mental health, the Applicant was admitted to the Goulburn Valley Mental Health Service and placed on a compulsory community treatment order. It was at this time he was diagnosed with schizophrenia. His symptoms included auditory hallucinations, paranoid delusions and erratic behaviour.
According to the material submitted to the delegate, the Applicant took Risperidone. Risperidone belongs to a group of medicines called anti-psychotic agents which improve the symptoms of certain types of mental illness. Risperidone is used for treatment of sudden (acute) and long-term (chronic) schizophrenia and other types of related psychosis. Risperidone has been found to be effective in the management of schizophrenia. In a 2014 study, a statistically significant improvement on various psycho-social parameters was noticed with Risperidone therapy at the end of a study period of one year. [1] Risperidone features on the World Health Organisation (‘WHO’) Model List of Essential Medicines which are the most important medications needed in a basic health system.[2]
[1] Dr. Avinash De Sousa et al, ‘Risperidone and Social Outcome in Schizophrenia – a One Year Follow Up Study’, (2014) 18 (2) International Journal of Psychosocial Rehabilitation, 185.
[2] World Health Organisation, ‘WHO Model List of Essential Medicines’ (August 2017) World Health Organisation < >
The content of the above paragraph was set out in the delegate’s decision.[3] The delegate considered the mental health care system available to the Applicant in Rwanda, the delegate determining the Applicant had effective protection in a third country, namely Rwanda, as part of the EAC. The delegate noted that “I accept that mentally ill people in Rwanda could constitute a particular social group.” The delegate acknowledged that there was a social stigma attached to mental illness and those that suffered it did experience discrimination according to the country information that was before the delegate. The delegate considered whether there was appropriate medical treatment and whether any inadequate medical treatment would lead to the Applicant exhibiting resulting behaviour which would lead to mistreatment by the community and by the authorities. The delegate ultimately found that:-
“Given the appropriate treatment which is available in Rwanda, which manages the applicant’s condition, I therefore find there are not substantial grounds for believing that there is a real risk that the applicant would not be able to access the required medication or treatment, leading to misbehaviour and mistreatment, amounting to significant harm.”
[3] Court Book, 148.
The delegate’s decision record was before the Tribunal. The Tribunal also considered, as had the delegate, the Applicant’s claims and integers thereof as they related to his mental health, although the Tribunal’s consideration was entirely in respect of the Applicant’s removal from Australia to the country of his citizenship, namely Kenya.
The Tribunal
Having regard to the grounds of the application, those dealing not with the Applicant’s claims before the Tribunal relating to his real or imputed political opinion of being anti-Mungiki, but rather his membership of a particular social group, namely, being a person with a serious mental illness, it is only necessary in these reasons to have regard to certain findings of fact of the Tribunal which are outlined below and adopted from the First Respondent’s outline of submissions wherein they are accurately and succinctly set out.
The Tribunal carefully and comprehensively in its Statement of Decisions and Reasons (‘the Decision Record’) considered each and every of the claims made by the Applicant, in respect of the Applicant’s suffering from a mental illness, and made the following findings (as taken from paragraph 10 of the First Respondent’s submissions):-
a)the Applicant had been diagnosed with schizophrenia;
b)the Kenyan Government was not discriminating against mentally ill persons in Kenya in its resource allocation decisions apropos mental health services. Upon return to Kenya, the Applicant would not face a real chance of being refused medical treatment, and he would not be discriminated against by the Kenyan Government in relation to medical treatment, by reason of his membership of the particular social group of ‘mentally ill persons in Kenya’ (‘the group’) (or for any other Convention reason);
c)having considered the submissions that the Applicant was at increased risk of harm from the Kenyan authorities and community members because of his membership of the group, the Tribunal made the following finding at paragraph 83 of the Decision Record:-
“At the hearing before me [the Applicant] said that the public, the police and authorities in Kenya did not recognise about [sic] mental health. He referred to the fact that in Australia he had been taken to court four times, but he had not been convicted because they had observed his mental illness. He said that if he were in Kenya he would be in prison right now. However, as I put to him, I consider that this is because, as he himself said, the authorities in Kenya do not recognise mental illness: it is not because they discriminate against people who have mental illness. As I put to him, if he were to behave in Kenya the way he has behaved in Australia and people were to react to this, they would not be reacting because he was mentally ill but because of his behaviour as an individual. I do not accept that it is correct that, as [the Applicant’s] representatives submitted, the authorities and members of the community would be treating [the Applicant] differently in this context because he was exhibiting symptoms of mental illness. I consider on the basis of the evidence to which they referred that people in Kenya would not see his behaviour as a result or a symptom of mental illness but rather, as [the Applicant] himself suggested, as criminal behaviour. I do not accept on the evidence before me that, if [the Applicant] returns to Kenya now or in the reasonably foreseeable future, there is a real chance that he will be singled out or treated differently from other people who behave in the way in which he may behave (if he does not remain compliant with his medication or if he is unable to obtain his medication) for reasons of his membership of the particular social group of mentally ill persons in Kenya or for any one of the other reasons referred to in paragraph 5J(1)(a) of the Migration Act.”
d)the Tribunal made a similar finding in relation to the Applicant’s inability to obtain employment by reason of his mental illness, that is, people’s reactions to his behaviour will not be because he is perceived as mentally ill, but a reaction to his behaviour as an individual without understanding its causes (at paragraph 84 of the Decision Record). Any difficulty the Applicant would have in obtaining employment would be “because of the way in which he may behave (without medication) as an individual rather than for reasons of his membership of the particular social group” or for any other Convention reason (a similar finding was made under the rubric of ‘complementary protection’ at paragraph 94 of the Decision Record). The Tribunal went on to state, at paragraph 84 of the Decision Record:-
“…As Burchett J (with whom O’Loughlin and R D Nicholson JJ agreed) said in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 568: ‘People are persecuted for something perceived about them or attributed to them by their persecutors. To the extent that, as has been submitted, the authorities and the community more generally in Kenya do not recognise mental illness, it follows in my view that their treatment of someone like [the Applicant] cannot be said to be ‘for reasons of’ his membership of the particular social group of mentally ill persons in Kenya because the authorities and members of the community will not perceive him as mentally ill.”
Under the rubric of ‘complementary protection’, the Tribunal made the following findings (as set out in paragraph 11 of the First Respondent’s outline of submissions):-
a)the Kenyan Government was not intentionally inflicting pain or suffering on mentally ill persons or causing extreme humiliation to them by its choosing not to fund mental health services (at paragraph 89 of the Decision Record);
b)if the Applicant were to commit a criminal act in Kenya, then by enforcement of the criminal law which was applicable to everyone in Kenya, the Kenyan authorities would be “enforcing laws which apply to everyone in Kenya in a non-discriminatory way” and he would be treated “just like anyone else who has committed these acts” (at paragraph 90 of the Decision Record). The carve out in s.36(2B)(c) of the Migration Act 1958 (Cth) would therefore be relevantly enlivened;
c)the Tribunal accepted that the Applicant’s mental health had deteriorated since he arrived in Australia in 2014 but it did not accept, on the evidence before it, that the Applicant’s behaviour even when not taking medication, had been such as to provoke other people to abuse him or mistreat him. If he were to be imprisoned as a result of criminal acts, the Tribunal did not accept that this would therefore give rise to a real chance of significant harm from other members of the prison population as had been claimed (at paragraph 91 of the Decision Record);
d)in relation to the claim that persons with mental illness might be locked away or tied up, the Tribunal observed that the evidence suggested that this was “actually the community trying to stop mentally ill people from harming themselves or others” and the requisite intention for the purposes of the definition of “significant harm” was therefore absent. The Tribunal also found that there was no independent evidence before it to support the Applicant’s claim that he would be killed because of his mental illness or because the public would respond to his behaviour and that he would not face a real chance of significant harm on this basis (at paragraph 92 of the Decision Record);
e)at paragraph 93 of the Decision Record, noting a submission as to the dual motives as to why a person might be locked away or tied up by family or community members, the Tribunal relevantly found:-
“Even in Australia people suffering from mental illness may be detained against their will because they present a danger to themselves or others and they may be restrained for the same reasons. I do not accept that in the context in which it is mentioned in the article quoted by [the Applicant’s] representatives this treatment is intended to inflict pain or suffering or to cause extreme humiliation as required by the definitions of ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ in subsection (5)(1) of the Migration Act. I do not accept on the evidence before me, therefore, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the Applicant] being removed from Australia to Kenya, there is a real risk that he will suffer significant harm as defined as a result of his mental illness.”
The Tribunal found the Applicant did not meet the criteria for the grant of a protection visa and affirmed the delegate’s decision.
Consideration
Ground 1
The Applicant submits in the Applicant’s outline of submissions that the Tribunal failed to ask the centrally important question, namely, whether a Kenyan law which treats the behaviour of a mentally ill person “as criminal behaviour” is a law that is “appropriate and adapted to achieving some legitimate object of the country concerned”.[4] The Applicant argues the Tribunal’s analysis failed to have regard to the fact that a law of general application may differentially impact someone because of a protected characteristic and that, by so doing, the punishment meted out to that person can amount to persecution for a s.5J(1)(a) of the Migration Act 1958 (Cth) (‘the Act’) reason.
[4] Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387, 43.
The Minister submits that the Applicant mischaracterises the nature of the Tribunal’s findings at paragraphs 83 and 84 of the Decision Record. In those paragraphs, the Tribunal concluded that the Applicant would not be subject to discriminatory treatment for reason of his membership of the group. Rather, the Tribunal found that the Applicant would only come to the potential attention of the Kenyan authorities or the community for reason of his behaviour as an individual for the reasons it identified in those paragraphs of the Decision Record (see paragraph 21 of these reasons).
The Minister further submits that the Tribunal, having made the findings it did in paragraphs 83 and 84 of the Decision Record, was not required to ask the question posed by the Applicant in paragraph 24 above.
The Court finds that there was no express or implied claim of the Applicant before the Tribunal that mentally ill persons were subject to particular laws or policies that were discriminatory, in the sense of persecutory, which as submitted by the First Respondent, would have required the Tribunal to make a finding as to whether such a law or policy was a law of general application, which might have included the enforcement of generally applicable criminal law or the enforcement of laws designed to protect the general welfare of the State.[5]
[5] Ibid 41-49.
The Court agrees with the submission of the First Respondent that, in these circumstances, it was not necessary for the Tribunal to engage in the inquiry as to whether the unidentified Kenyan law or policy was appropriate to some legitimate object of Kenya. That inquiry was only relevant once the Tribunal concluded that the law or policy in question was found to positively result in discriminatory treatment against the Applicant for a reason specified by the Convention.[6]
[6] Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 635, 72 -77.
Ground 2
The Applicant submits that his claim to persecution based on returning to Kenya with a serious mental illness was rejected by the Tribunal because it considered that whatever harm befell him would be motivated by ignorance of, not animus for, the effects on behaviour of mental illness. The Applicant argues the case law is clear that such an analysis is erroneous at law since it focuses on the wrong question, namely what ‘label’ does the persecutor give the victim’s behaviour. The Applicant submits the question the Tribunal should have asked was: Is the harm for reasons of the victim’s Convention protected attribute, regardless of the label given by the persecutor? The Applicant submits by asking the wrong question, the Tribunal fell into error.
The Applicant’s argument is, further, that in the Tribunal asking itself the wrong question, it engaged in an erroneous assessment of requiring a particular form of motivation to be attributed to the persecutors in order to engage Australia’s protection obligations, rather than asking what was the real reason for the persecution.
The Minister submits, and the Court accepts, that no such standard (of enmity) to be attributed to the persecutors was imposed by the Tribunal. Rather, the Tribunal’s reliance (at [84]) on the statement of Burchett J in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at [568] ,which set out more completely is:-
“Persecution involves the infliction of harm, but it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. Not every isolated act of harm to a person is an act of persecution.”
clearly conveyed the Tribunal’s proper understanding that persecution must be for a Convention reason, and not that there must be a constituent element of persecution of enmity or malignity toward a visa Applicant by State authorities in order for persecution to be made out.[7]
[7] Zitoni v Minister for Immigration and Multicultural Affairs [2000] FCA 621.
This ground cannot be made out. The Court is satisfied that the Tribunal asked itself the correct question which was whether the threat of harm was directed against the Applicant for reason of his membership of the group. As set out in paragraphs 83 and 84 of the Decision Record, the Tribunal concluded to the contrary for the reasons that it gave. The findings made by the Tribunal in paragraphs 83 and 84 of the Decision Record were findings open to the Tribunal on the evidence before it.
As submitted by the First Respondent, it was entirely appropriate for the Tribunal to assess the actual motive, be it animus or otherwise, and the perceptions of the alleged persecutors in order to assess whether or not the asserted persecution against a visa Applicant was for reason of a Convention nexus.[8]
[8] MZZXF v Minister for Immigration and Border Protection [2015] FCA 158, 56.
Ground 3
Ground 3 is essentially as contained in the Applicant’s submissions at paragraphs 26 to 28 which are as follows:-
“26. Under the heading dealing with the assessment of [the Applicant’s] claims to protection under s 36(2)(aa) of the Act… the Member noted a protection claim by [the Applicant] that concerned:
“…locking someone away or tying someone up because it was the only known way to deal with mental illness [in Kenya. His representatives] submitted that family and community members should be regarded as desiring to lock the offending person away to preserve their reputation of the family and community.[9]
This claim was rejected by the Tribunal under the criteria in s 36(2)(aa) on the basis that the Member did not accept that such mistreatment would not be ‘intended to inflict pain or suffering or to cause extreme humiliation’.[10] This analysis relied on the reasoning in SZTAL which was later affirmed by the High Court.[11] Importantly, therefore, this claim was not rejected at a factual level, but on the basis that such actions would not be taken with an intention to harm under s 36(2)(aa).
27. There is no relevant ‘intention’ requirement in respect of the criteria in s 36(2)(a), which concerns refugee, not complementary, protection. That is, the analysis of these claims under the complementary protection criteria could not extend to explaining why the same claim did not get any consideration under the refugee criteria, nor why it did not justify a grant of protection.
28. There was no evaluation at all by the Tribunal of this integer of [the Applicant’s] protection claims against the criteria in s 36(2)(a). Nowhere in its analysis did it mention family as perpetrators of ‘serious harm’, nor of the risk of being tied up, because of his mental illness. Its analysis focused only on mistreatment by the authorities or refusal of employment because of his mental illness.”
[9] Decision Record 93.
[10] Ibid.
[11] SZTAL v Minister for Immigration and Border Protection [2017] HCA 34, 28-29.
I note the Applicant also submitted that the Applicant’s claim was not subsumed by any findings of greater generality since the mental illness claim dealt with by the Tribunal under the refugee criteria was limited to “the authorities” and those who might employ the Applicant.
The Applicant, in essence, submits that the Tribunal failed to correctly construe and consider each claim advanced by the Applicant in support of his protection visa application and therefore has constructively failed to exercise jurisdiction.
This ground cannot succeed. The claim made by the Applicant in this context was clearly made under the rubric of complementary protection. It was not made under the rubric of the Convention. Contrary to that which is submitted by the Applicant, it is clear that the Tribunal rejected the alternative “preservation of reputation of the family and community” motivation as not being made out on the material advanced by the Applicant at paragraph 93 of the Decision Record. Paragraph 93 is, relevantly, as follows:-
“In their post-hearing submission [the Applicant’s] representatives submitted that locking someone away or tying someone up because it was the only known way to deal with mental illness did nor [sic] negate the fact that this act also intentionally caused pain and suffering. They also submitted that family and community members should be regarded as desiring to lock the offending person away to preserve the reputation of the family and community. They submitted that ‘the pain and suffering caused by this very brutal pseudo medical treatment is not something that can be considered inadvertent as it is known and intended that this act will lead to pain, suffering and extreme humiliation’. They noted that the High Court had granted special leave to appeal from the decision of the Full Court of the Federal Court in SZTAL v The Minister for Immigration and Border Protection [2016] FCAFC 69 relating to the issue of intention in the context of the complementary protection criterion. However at the time of this decision the Tribunal is bound to apply the law as it was interpreted by the Full Court of the Federal Court. Even in Australia people suffering from mental illness may be detained against their will because they present a danger to themselves or others and they may be restrained for the same reasons. I do not accept that in the context in which it is mentioned in the article quoted by [the Applicant’s] representatives this treatment is intended to inflict pain or suffering or to cause extreme humiliation as required by the definitions of ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ in subsection (5)(1) of the Migration Act. I do not accept on the evidence before me, therefore, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the Applicant] being removed from Australia to Kenya, there is a real risk that he will suffer significant harm as defined as a result of his mental illness.”
As submitted by the First Respondent, nothing, therefore, remained at a factual level for consideration under the rubric of the Convention nor is it apparent in the Applicant’s submissions how a claim made by the Applicant had any requisite Convention nexus which necessitated the Tribunal to consider this particular claim of the Applicant’s under s.36(2)(a) of the Act.
None of the grounds of the application can be made out. Accordingly, the application will be dismissed with costs as sought by the First Respondent.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 1 November 2018
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