BBE17 v Minister for Immigration
[2018] FCCA 2200
•25 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BBE17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2200 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant’s claims found not to be well-founded – whether the Authority made an irrational or unreasonable finding considered or whether the Authority erred in considering the receipt of new information considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.473CB, 473DC, 473DD |
| Cases cited: AQU17 v Minister for Immigration [2018] FCAFC 111 ARG15 v Minister for Immigration [2016] FCAFC 174 Minister for Immigration v Li [2013] HCA 18 Minister for Immigration v Singh [2014] FCAFC 1 Minister for Immigration v SZMDS [2010] HCA 16; 240 CLR 611 SZSGA v Minister for Immigration [2013] FCA 774 |
| Applicant: | BBE17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 736 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 10 August 2018 |
| Date of Last Submission: | 11 September 2018 |
| Delivered at: | Sydney |
| Delivered on: | 25 October 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr S Hodges of Hodges Legal |
| Solicitors for the Respondents: | Ms L Helsdon of Sparke Helmore |
ORDERS
The application as amended by leave on 10 August 2018 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 736 of 2017
| BBE17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 6 March 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant, a citizen of Sri Lanka from the Eastern Province, entered Australia at Cocos (Keeling) Islands as an unauthorised maritime arrival on 13 November 2012.[1]
[1] Court Book (CB) 34
On 5 January 2016, the applicant lodged an application for a SHEV.[2] On 14 September 2016, the delegate refused to grant the SHEV[3] and the matter was referred to the Authority for review.[4]
[2] Safe Haven Enterprise Visa; CB 87
[3] CB 154-170
[4] CB 171-172
On 6 March 2017, the Authority affirmed the delegate’s decision to refuse the grant of the SHEV.[5]
[5] CB 188-204
Applicant’s claims
The applicant’s claims were set out in a statement provided with his SHEV application[6] and in an interview with the delegate on 6 April 2016. The applicant claimed to be Tamil and Hindu and to fear harm on return to Sri Lanka from Tamil paramilitary groups and the Sri Lankan authorities, on the basis of the following:
a)in 1998, the applicant was conscripted into the LTTE[7] and taken to an LTTE camp. He later escaped and travelled to Saudi Arabia on a false Sri Lankan passport;[8]
b)in April 2003, the applicant returned to Sri Lanka; he was detained by the LTTE for two days; he was released and he returned to Saudi Arabia;[9]
c)in 2005, the applicant returned to Sri Lanka and in 2006 was detained by the TMVP[10]/ Karuna group for 25 days. The applicant claimed he escaped and returned to Saudi Arabia;[11] and
d)in August 2012, the applicant returned to Sri Lanka and members of the TVMP went to the applicant’s house and told his family to hand him over; in November 2012, the applicant departed Sri Lanka.[12]
[6] CB 62-70
[7] Liberation Tigers of Tamil Eelam
[8] CB 62-63
[9] CB 63
[10] Tamil Makkal Viduthalai Pulikal
[11] CB 64
[12] CB 66
In a statutory declaration made on 3 January 2016, the applicant claimed that in 2005, he tried to commit suicide in Saudi Arabia and was treated in hospital for his mental condition before returning to Sri Lanka, where he was reunited with his family and underwent further treatment in a private medical centre.[13] The applicant also claimed in his protection visa interview that he returned to Sri Lanka in 2005 because of his mental health problems.[14]
[13] CB 64, [21]
[14] CB 158
On 22 October 2016, the applicant’s representative provided the Authority with a psychological assessment report (psychological report) of the applicant.[15]
[15] CB 177-186
The Authority’s key findings
The Authority had regard to the material referred by the Secretary under s.473CB of the Migration Act 1958 (Cth) (Migration Act).[16] The Authority was satisfied that the applicant’s psychological report was not new information, noting that the information referred to a history provided by the applicant, much of which was consistent with information and claims that were before the delegate.[17] It noted that in the “history” section of the psychological report, the applicant made two new claims that were not before the delegate. The Authority was not satisfied that there were exceptional circumstances to justify considering the new claims pursuant to s.473DD(a) of the Migration Act.[18]
[16] CB 189, [4]
[17] CB 189, [5]
[18] CB 189, [6]
The Authority then turned to the applicant’s claims for protection. It accepted the applicant’s claims that he was taken to a training camp in 1998, that the LTTE asked him to attend their offices in 2003 and that he was questioned by the CID[19] at Colombo airport in 2012.[20] However, the Authority was not satisfied that any government authority or paramilitary body came to his parents’ house seeking him in 2003, or that the applicant had any profile of interest to the authorities at that time. Nor did it accept that the applicant had any association or perceived association with the LTTE that would lead to him having an at-risk profile.[21] The Authority therefore was satisfied that the applicant did not have a well-founded fear of harm as a result of his past LTTE involvement.[22]
[19] Criminal Investigation Department
[20] CB 192, [15] and [17]
[21] CB 192, [15], [16], [17]
[22] CB 193, [20]
The Authority accepted the applicant’s claim that he was taken and held in a TMVP camp in 2005. However it was not satisfied that the TMVP had any ongoing interest in him and therefore did not accept that the TMVP was seeking the applicant and visiting his family between 2012 and 2013.[23] On this basis, the Authority found that the applicant did not face a real chance of serious harm from the TMVP or any other paramilitary group or government authority arising from his forced recruitment and escape in 2006.[24]
[23] CB 194, [23], [24], [25]
[24] CB 194, [25]
The Authority was not satisfied that the country information submitted by the applicant or that before the delegate demonstrated that all Tamils from the East face a real chance of harm based on their ethnicity and location.[25] It accepted that the applicant might face difficulties as a Tamil male from the East, but found that any such general difficulties and disadvantage would not constitute serious harm.[26] Consequently, the Authority found the applicant did not face a real chance of serious harm on the basis of being a Tamil, a Tamil male from the East or a Hindu.[27]
[25] CB 195, [29]
[26] CB 195, [29]
[27] CB 195, [31]
The Authority was also satisfied that the applicant would not face a real chance of harm arising from mental health issues.[28] The Authority found there was nothing in the information before it to suggest the applicant would be unable to access or be denied access to the health system, noting the applicant’s own evidence that he had been able to access appropriate care.[29]
[28] CB 196, [33]
[29] CB 196, [33]
While accepting that the applicant departed Sri Lanka illegally, the Authority was satisfied that he would not be at risk during any screening process on return on the basis of his imputed profile as a failed asylum seeker or any other imputed profile.[30] The Authority found that there was no real chance he would be harmed or mistreated because he was a returning asylum seeker.[31] It accepted that the applicant may be charged and fined under the Immigrants and Emigrants Act (Immigrants and Emigrants Act), but it did not accept that this would cause him economic hardship or otherwise constitute serious harm.[32] The Authority accepted that a period of detention of no more than a few days may occur in a Sri Lankan prison, noting that prison conditions in Sri Lanka did not meet international standards.[33] The Authority was satisfied that if the applicant was detained, fined and questioned, this would be the result of the enforcement of laws of general application that apply to all Sri Lankans equally, and would not amount to persecution.[34]
[30] CB 196, [34] and [36]
[31] CB 196, [36]
[32] CB 196-197, [37] and [39]
[33] CB 196, [40]
[34] CB 196, [41]
In considering the complementary protection criteria, the Authority found that the applicant did not face a real risk of significant harm arising from his previous involvement with the LTTE or TMVP or on the basis of being a Hindu.[35] The Authority did not accept that the applicant would face discrimination in Sri Lanka that would amount to significant harm, and found that he did not face a real risk of significant harm on the basis of being a Tamil or a Tamil from the East.[36] It accepted that, if detained, the applicant may experience poor prison conditions but there was no indication that authorities or others intentionally inflicted pain or suffering.[37] The Authority was therefore not satisfied that the applicant would be subject to acts or omissions that would constitute significant harm during his time in detention or prison while awaiting his hearing before a magistrate.[38] The Authority was also not satisfied that there was a real risk of significant harm to the applicant as a person with mental health issues and it was satisfied that even if the applicant was briefly detained, he would be able to access the health system and appropriate care.[39]
[35] CB 198, [45]
[36] CB 198, [46]
[37] CB 198, [49]
[38] CB 198-199, [49]
[39] CB 149, [50]
The present proceedings
These proceedings began with a show cause application filed on 10 March 2017. At the trial of this matter on 10 August 2018, I gave leave for the applicant to rely upon an amended application filed on 6 August 2018. That application abandoned the grounds in the original application and added two grounds (numbered 3 and 4 in the amended application)[40] which state as follows:
[40] I have renumbered the Grounds as 1 and 2
[1] The Authority committed jurisdictional error by making a finding that was irrational, illogical and unreasonable.
PARTICULARS
a. The applicant's representative provided the IAA with a psychological report prepared by Kuni Takeshima on 22 October 2016.
b. At [5], the IAA considered the information contained within the report to be 'consistent with information and claims that were before the delegate' and was satisfied that it was not new information.
c. At [32], the IAA considered the applicant's evidence that he suffers from mental illness and accepted that he lived through a traumatic time in Sri Lanka where he was exposed to violence.
d. At [33], the IAA held that it was satisfied that the applicant's ability to receive treatment previously in 2005-2006 provided sufficient evidence for the conclusion that he would be able to access it again and that, as a result, he would not face a real chance of harm arising from his mental illness.
e. The IAA further noted that, in such circumstances, that family assistance that the applicant would have in Sri Lanka would provide him with a degree of stability:
i. In doing so, the IAA failed to consider the applicant's claim in his psychological assessment that his wife had contacted him stating that she no longer wanted to be with him. The breakdown of family support would only contribute to greater mental strain to the applicant, contrary to the IAA's decision.
ii. Moreover, in her report, Ms Takeshima states that the applicant suffers from 'intense emotional distress and psychological reactivity after exposure to trauma related external stimuli and cues'. By making the finding above, the IAA failed to acknowledge that the applicant would be more likely to suffer mental harm in Sri Lanka, as it is where he originally witnessed such traumas.
f. At [33], the IAA stated that the health outcomes tend to be worse in the Northern and Eastern Provinces.
i. At paragraph 11, the IAA accepted that the applicant was from the Eastern Province.
ii. In light of the severity of the applicant’s mental illness, as stated in the applicant’s psychological assessment, poor health standards would not provide him with sufficient support to treat his issues.
[2] The Authority committed jurisdictional error by incorrectly applying the test for the consideration of new information pursuant to s 473DD of the Migration Act 1958 (Cth).
PARTICULARS
a. At paragraph 5 of its decision, the Authority noted that the applicant's representative had provided it with a psychological report.
b. Within the same paragraph as above, the Authority held that it was satisfied that the bulk of the information contained within the report was not new information.
c. At paragraph 6, the Authority noted that the report contained two claims which were not before the delegate, they were as follows:
i. The applicant claimed that his first contact with the LTTE was in 1996 whilst he was still in school. During this time, he would voluntarily perform small intelligence tasks for them such as providing them with information on the SLA.
ii. The applicant claimed that he excavated a pit full of body parts in 1998.
d. The Authority found that it was not satisfied that there were exceptional circumstances to justify considering the new claims pursuant to s 473DD(a).
e. The Authority erroneously failed to make a determination on the requirements outlined in s 473DD(b).
It became apparent during oral argument that the second ground in the amended application may require amendment, given that the Authority did not consider whether a psychological report provided to it was new information (as opposed to considering whether certain factual allegations in the report were new information). In light of that, I gave the applicant the opportunity to file and serve a further amended application and called for further submissions.
The further following material was filed.
On 24 August 2018 the applicant’s solicitor lodged electronically a document entitled “Applicant’s AMENDED Outline of Submissions”, together with a proposed second amended application. I have difficulty with those documents as they fail to address the issue I raised and addresses other issues about which no leave to amend or make submissions was sought.
The orders made by the Court on 10 August 2018, although generally expressed, envisaged that the applicant would have leave to amend his application to address the issue raised by the Court as regards the Authority’s approach to the psychological report and s. 473DD of the Migration Act, that is, that the Authority should have addressed the entirety of the information in the document provided by the applicant, rather than extracting specific factual allegations in it as “new information”. This bears upon the second ground in the amended application. The Court did not give the applicant leave to amend his application more generally.
Instead, the applicant’s second amended application seeks to add a more elaborate form of the first ground in the amended application. The applicant has also filed amended written submissions that seek to further develop that ground. There was no amendment of the second ground.
It is not inappropriate at this late stage to permit the applicant without leave to reformulate the first ground in the application as amended. I have not dealt with that ground as reformulated and I have dealt with it in the terms of the amended application dealt with at the trial. I note that the Minister’s submissions filed on 11 September 2018 attempt to grapple with the ground as reformulated while opposing the further grant of leave. My associate informed the parties that I would not grant further leave for amendment of the first ground.
I have before me as evidence the court book filed on 1 May 2017.
Consideration
Ground 2 – did the Authority incorrectly apply s.473DD of the Migration Act?
At [5] and [6] of its reasons[41] the Authority stated this in relation to information received by the Authority:
On 22 October 2016, a migration lawyer provided the IAA with a psychological assessment report in respect of the applicant. The migration lawyer is not acting for the applicant. The report is dated 22 October 2016 and refers to a history provided by the applicant. Much of this history is consistent with information and claims that were before the delegate and I am satisfied that this is not new information.
In the history in this report, the applicant makes two claims relating to a further involvement with the LTTE in 1996 and excavating a pit full of body parts in 1998. These claims were not before the delegate and are new information. I have considered the arrival interview conducted on 2 January 2013, the statutory declaration dated 3 January 2016 and the interview with the delegate on 6 April 2016 (the interview). The applicant's claims have remained reasonably consistent throughout these interactions. Although the applicant has referred to problems remembering exact dates and circumstances, (and this is supported by the psychological report), I am satisfied that the applicant has shown consistent recall of his key claims. I note that he was represented by a migration lawyer at the interview and the delegate clearly explained the importance of making full and complete claims at that time. I also note that the delegate gave the applicant a number of opportunities to raise any additional information and also advised the applicant and his lawyer that she would accept post-interview submissions. The post-interview submissions that were provided did not refer to any new or additional claims. Although I accept that the applicant has mental health issues as identified in the psychological report, I am not satisfied that there are exceptional circumstances to justify considering the new claims and pursuant to s.473DD(a) I have not considered them.
[41] CB 189-190
It is apparent that the Authority attempted to deal with the psychological assessment report in the same way as it might deal with submissions bearing upon the decision of the delegate. While it is appropriate, and often necessary, for the Authority to deconstruct written submissions in order to isolate new information (ie new asserted facts and circumstances) from submissions about facts and circumstances that were before the delegate, it was probably not open to the Authority to deal with the psychological assessment report in a similar way. That is because the report needed to be considered as a whole. The observations, opinions and recommendations expressed by the psychologist who prepared the report are not, in my opinion, severable from the history provided by the applicant to the psychologist. The report as a whole was either new information or it was not. In my opinion, it was new information because it was a medical assessment which was prepared after the decision of the delegate and which was undoubtedly of some relevance to the applicant’s claims.
The Authority plainly had regard to the report because it referred to the report at [6] and it appears to have been part of the evidence referred to in relation to mental health issues dealt with by the Authority at [32]-[33][42] and [50].[43]
[42] CB 195-196
[43] CB 199
However, in order to deal with the psychological report, the Authority needed to satisfy itself of matters prescribed under s.473DD of the Migration Act. There is no evidence that it did so. The Authority appears to have excluded from consideration two elements of the history recounted to the psychologist on the basis that these were “new claims” while apparently dealing with the psychological report on the basis that it was part of the material from which sprung a claim which had not been specifically put.
There is, in my opinion, no real doubt that the Authority fell into error in dealing with the psychological report in that way. The question is whether that error goes to jurisdiction.
This case is not an appropriate vehicle for resolving that question because, as is pointed out by the Minister in his closing submissions, the issue identified by me does not arise as an aspect of the controversy between the parties in circumstances where the closing submissions of the applicant fail to address the issue.
In any event, the consideration of the medical report by the Authority benefitted the applicant in circumstances where a proper consideration of whether the report as a whole was new information might have prevented the Authority from considering it. To that extent, the Authority’s error could not have made any material difference to the outcome and the error would not go to jurisdiction.
The applicant’s submissions are limited to the exclusion of the two “new claims” identified in the medical report. In the event that I am wrong and that those factual assertions can be separated from the rest of the report, I agree with the Minister’s submissions on that aspect of the Authority’s reasoning.
The Authority’s reasons for concluding that there were no exceptional circumstances justifying consideration of that material rested upon the fact that it was inconsistent with the applicant’s previously made claims, which had remained “reasonably consistent” throughout the assessment process. Although the applicant had “problems remembering exact dates and circumstances”, he had showed “consistent recall of his key claims”. The new claims did not form part of those key claims, as consistently put by the applicant. That was so, despite the applicant having been represented by a migration lawyer at the interview, having been told the importance of making full and complete claims at that time, and having been given further opportunities to raise any additional information. In short, and as in AQU17 v Minister for Immigration,[44] the Authority plainly based its conclusion that exceptional circumstances did not exist upon its lack of satisfaction that the new information was credible (notwithstanding the fact that, as in AQU17, it did not make any finding in express terms in respect of the s.473DD(b)(ii) requirement).
[44] [2018] FCAFC 111 (see at [16])
None of that suggests any relevant error. Nor could any error in the approach of the Authority to the balance of the material in the report (to which, as noted above, the Authority did have regard) have affected that reasoning.
Ground 1 – were the Authority’s findings in relation to the applicant’s mental health issues irrational, illogical or unreasonable?
I prefer the Minister’s submissions in relation to this ground.
By Ground 1, the applicant contends that the Authority’s findings in respect of his mental health issues were irrational, illogical and unreasonable. Particular (e) of Ground 1 contends that the Authority failed to consider information in the psychological report that indicated there had been a breakdown in the applicant’s marriage that caused mental strain. The psychological report stated that the applicant suffered from “self-reported symptoms”, including “intense emotional distress after exposure to traumatic reminders and cues”. The applicant points to the relevance of this information to the Authority’s consideration of the applicant’s mental health issues.
The Minister makes two submissions in this respect which I accept. First, the Court should not readily infer that the information in the psychological report (excluding the two new claims) was not considered. The psychological report was before the Authority, and was not considered to be “new information” for the purposes of s.473DC or s.473DD of the Migration Act.
Secondly, the applicant never expressly advanced a claim that he suffered from mental health issues.[45] This was acknowledged by the Authority,[46] which nevertheless proceeded to consider the applicant’s evidence and make findings in this regard, with reference to country information. In relation to the particulars of this ground, I accept that:
a)in relation to particular (e)(i), the information contained in the psychological report regarding the applicant’s relationship with his wife was provided under the heading “Relevant Personal History” and was not, nor could it reasonably be construed as, a claim to fear harm on return to Sri Lanka arising from the applicant’s mental health issues, compounded by a “breakdown of family support.” In this respect, it was open to the Authority to consider the applicant’s evidence that his family had assisted him during his previous treatment and that they continued to reside in the family home;[47]
b)in relation to particular (e)(ii), the Authority did not consider the applicant’s “self-reported symptoms”, including “intense emotional distress after exposure to traumatic reminders and cues” in making its findings on the applicant’s mental health issues, nor was it required to. The “self-reported symptoms” could not reasonably be construed as a claim to fear harm on return to Sri Lanka where the applicant “witnessed such traumas,” and consequently, would be “more likely to suffer mental harm”; and
c)finally, in relation to particular (f), the Authority made its findings on the applicant’s mental health issues on the basis of country information which indicated that health outcomes tended to be worse in the North and East.[48] The Authority noted the applicant’s evidence that he had previously been able to obtain treatment in Sri Lanka both as a public patient and then in a private clinic, and overall, was satisfied that the applicant would not face a real chance of harm arising from his mental health issues. The applicant’s contention that due to poor health standards, he would not receive “sufficient support to treat his issues” amounts to no more than a request for impermissible merits review.
[45] SZSGA v Minister for Immigration [2013] FCA 774 at [44]-[52]
[46] CB 195, [32]
[47] CB 195, [33]
[48] CB 195, [33]
For a decision to be vitiated for jurisdictional error on the basis of illogical or irrational findings of fact or reasoning, it is not enough for the question of fact to be one on which reasonable minds may come to different conclusion.[49] The Authority made comprehensive findings on the applicant’s mental health which cannot be said to be in want of a logical or rational basis as characterised by the judgment of Crennan and Bell JJ in Minister for Immigration v SZMDS.[50]
[49] ARG15 v Minister for Immigration [2016] FCAFC 174 at [47]
[50] [2010] HCA 16; 240 CLR 611 at [130]
To the extent that Ground 1 contends that the Authority’s findings were unreasonable, the Authority’s reasons for decision demonstrate that the Authority gave consideration to all of the applicant’s claims and evidence available to it. In light of these reasons, there is nothing on the face of the Authority’s decision record to indicate that the Authority’s finding on the applicant’s mental health issues was arbitrary, capricious, without common sense or otherwise outside the realm of decisions available to it on the evidence before it and for the reasons it gave.[51]
[51] see Minister for Immigration v Li [2013] HCA 18 at [76]; Minister for Immigration v Singh [2014] FCAFC 1 at [44]
Conclusion
The applicant has failed to demonstrate that the decision of the Authority is affected by jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 25 October 2018
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