BCE20 v Minister for Immigration
[2020] FCCA 3455
•17 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BCE20 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 3455 |
| Catchwords: MIGRATION – Migration – failure to consider integer of claim. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 424A, 430 |
| Cases cited: MHA v Buadromo (2018) 362 ALR 48 MIMA v Yusuf (2001) 206 CLR 323 |
| Applicant: | BCE20 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 150 of 2020 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 3 September 2020 |
| Date of Last Submission: | 3 September 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 17 December 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Lawrence |
| Solicitors for the Applicant: | Conditsis Lawyers |
| Counsel for the First Respondent: | Mr Reilly |
| Solicitors for the First Respondent: | Sparke Helmore |
| The Second Respondent entered a submitting appearance |
ORDERS
The application filed on 28 February, 2020 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 150 of 2020
| BCE20 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application to review a decision of the second respondent made on 4 February, 2020 which affirmed a decision of a delegate of the first respondent to refuse the applicant a Safe Haven Enterprise visa. By this application the applicant claims that the decision was affected by jurisdictional error and that it would be set aside. The first respondent opposes the application.
For the reasons that follow, the application should be dismissed.
Background
The first respondent has delivered written submissions in which the background to the present application is summarised. The applicant took no issue with that summary and in my view, having regard to the material contained within the court book, the summary is accurate. What follows is drawn from that background and the material as it appears in the court book.
The applicant is a citizen of the Democratic Republic of Congo who arrived in Australia on 19 December, 2018 travelling on a transit visa.
On 24 January, 2019 the applicant applied for a Safe Haven Enterprise visa. On 13 March, 2019 the application was refused. That decision was set aside by the Tribunal (differently constituted) on the basis that the application was invalid.
On 12 June, 2019 the applicant again applied for a Safe Haven Enterprise visa.
His claims to fear harm can be summarised as follows:
a)His father was killed because he was a journalist that reported on the death of another journalist named Chebeya Bankome. He helped his father as a journalist and the Congolese authorities believe that he had a hard-drive containing information about the death of Chebeya which they would not want released;
b)He was detained and tortured because of this and his father and brother were killed;
c)He fled to the Republic of South Africa, but could not return there as it is not safe and is not far from the Congo. South Africans did not like strangers; and
d)He suffered from Conversion Disorder and Post Traumatic Stress Disorder (PTSD) and would be unable to receive treatment in the Congo.
On 23 July, 2019 a delegate of the Minister refused to grant the applicant the visa for which he applied. The applicant sought review by the second respondent. The second respondent held a hearing on 16 September, 2019. The applicant attended the hearing and was assisted by an agent.
Pursuant to s.424A of the Migration Act 1958 (Cth), on 20 September, 2019 the second respondent invited the applicant to comment on or respond to the certain information that raised concerns about his claims, more particularly:
a)He was targeted by the authorities and harmed in relation to some information, contained within a hard drive that was produced by his father in relation to the death of a journalist in 2011;
b)He, his father and his brother were arrested or tortured, and came to the adverse attention of the authorities;
c)His father and brother were killed;
d)His account of fleeing the Congo in around June 2018, including a claim that his brother sent him a message prior to his claimed arrest, urging him to flee;
e)His claim that he resided in South Africa for only six months and did not seek asylum there; and
f)His passport was issued by the authority for Congolese passports on 22 June 2018. The address listed on the passport was a South African address.
On 4 October, 2019 the applicant responded to that invitation by providing submissions, country information and medical documents.
On 19 November, 2019 the second respondent requested the applicant’s consent to obtain his medical records held by the first respondent’s Department. He provided his consent on 4 December, 2019.
On 12 December, 2019 the second respondent again pursuant to s.424A of the Act invited the applicant to comment on or respond to inconsistencies between his medical records and his evidence at the hearing, as well as inconsistencies between his written evidence and submissions and his evidence given at hearing. The applicant, via his advisor, provided submissions in response to that invitation on 20 December, 2019.
On 4 February, 2020 the second respondent affirmed the delegate’s decision not to grant the visa. In doing so, the second respondent accepted that the applicant had been diagnosed with Conversion Disorder at the Royal Brisbane and Women’s Hospital upon his arrival in Australia. He was hospitalised from 19 December, 2018 until 30 January, 2019.
The second respondent’s decision record reveals that it went to considerable lengths to satisfy itself that the applicant was in a position to provide evidence and submissions to the Tribunal. It recorded that the applicant did not seek an adjournment of the hearing at any time nor did he indicate to the second respondent that he had difficulty answering any questions or understanding the interpreter who was there to assist him. The second respondent recorded that the applicant told them that he was not receiving any medical care at all whilst in detention and received no medical appointments and medications although he did claim that he was given medication on the morning of the hearing. He did not know what it was and he claimed that it was the first time that he had received that medication.
The second respondent obtained medical records from the detention centre where the applicant is being held to obtain some independent evidence about his treatment and medication. In [24] of its reasons, the second respondent made clear that the second respondent needed to ask itself “whether or not, given the alleged claims about his medication a medical condition, the Tribunal was satisfied the applicant was afforded due procedural fairness and that he was competent to present his claims and evidence”.
The second respondent recorded that the applicant through his representative responded to those concerns in detail and that response was carefully considered and taken into account by the second respondent.
The second respondent considered that the applicant’s account of, and reasons for, his departure from the Congo were lacking in detail and credibility. It was not satisfied that his account was truthful. It explored with the applicant why he did not apply for protection in South Africa and formed the view that it was because he did not have a well-founded fear of persecution for the reasons claimed or any other reason.
The second respondent recorded that the applicant’s evidence in respect of the incidents involving his brother and father was inconsistent, which indicated that his account was fabricated, not a lived experience and had been contrived. It did not accept that the applicant and/or his brother were tortured or persecuted or that he would be should he return to the Congo.
The second respondent considered the applicant’s mental illness. It observed that the applicant had refused some medical treatment and failed to avail himself of other opportunities. It noted that there were health services available in the Congo, that the applicant did not appear to require surgery or physical support and that the country information reported that people with disabilities obtained good quality services, free of charge, and that there were four physical rehabilitation centres in Bukavu, Goma and Kinshasa.
The second respondent considered whether the cumulative impact of the applicant's claims would amount to a well-founded fear of persecution or bring the applicant to the attention of the authorities such that he would face significant harm, however, the second respondent found that it would not.
The second respondent considered the totality of the applicant's evidence, the Department's file and the previous Tribunal’s file. Taking into account all of the evidence, it found the applicant's evidence at the hearing was evasive, incomplete, lacking in relevant detail and frequently implausible. It was satisfied that the applicant was given a fair hearing and extended every opportunity to put his evidence, clarify and restate remarks and otherwise respond to the second respondent's concerns. The second respondent found that the applicant was not a credible witness and his accounts of persecution and fear of harm were not well founded.
The second respondent considered the applicant’s claim for complementary protection. The second respondent was not satisfied that the evidence indicated that the applicant would not have access to some level of medical care either with or without cost, such that he would suffer significant harm within the meaning of the convention.
The second respondent was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to the Congo, there was a real risk that the applicant would suffer significant harm as prescribed in s 36(2)(aa) of the Act.
Accordingly the second respondent affirmed the delegate’s decision.
Application for review
The application for review contains two grounds, the second as an alternative to the first. I will deal with each in turn, but before doing so, I record that the following principles are not in dispute between the parties:
a)a tribunal undertaking merits review of a claim for protection must consider all claims that are advanced;
b)a failure to do so amounts to a constructive failure to exercise jurisdiction;
c)a rejection of a claim to Refugee Convention protection will not negate the need to consider complementary protection and engage with the statutory criteria; and
d)s.430 of the Act contains a requirement for the second respondent to provide reasons for decision.
The first ground of review is in the following terms:
Ground 1: Error of Law - The Tribunal erred, amounting to jurisdictional error, by failing to consider and determine an integer of the Applicant’s claim that was expressly advanced and squarely arose on the materials, that as a mentally ill person being returned to the Democratic Republic of Congo he faced a risk of significant harm and therefore engaged Australia’s international protection obligations as stated in section 36 of the Migration Act 1958 (Cth).
Particulars
The Applicant submitted to the Tribunal (submission of 9.09.19) that he faced a risk of significant harm (being a risk of degrading treatment and punishment) upon return on account of being a person with a mental illness (submission at [6.4]).
This claim was supported by country information (see submission at [6.4])
The Tribunal purported to deal with the Applicant’s complementary protection claims at [58] to [65].
The Tribunal overlooked and did not consider and determine the particular claim that had been advanced.
On 9 September, 2019 the applicant, by his agent, made a written submission submitted to the Tribunal. In the context of his claim for protection under the Refugees Convention the applicant submitted:
2.3. The Applicant has a well-founded fear of persecution due to the following:
…
• This persecution will involve significant physical harassment because of his physical removal from any communities he seeks support from because of his mental illness. The Applicant is also likely to be physically harassed by DRC authorities.
• This persecution will involve significant physical ill-treatment in the forms of torture by the authorities, inability to flee from violent conflict because of his physical disability, and discrimination and social isolation because of his mental illness.
…
5.6 We submit that the stigma of mental illness and the very limited access to mental health services in DRC will result in the Applicant experiencing “serious harm” should he be required to return there. Furthermore, we submit that the Applicant would be socially isolated from any community he would seek support from because of the community's fear of being associated with his mental illness. This social isolation, we submit, would result in the serious harms articulated in s5J(5)(d)(e)(f) of the Act. Section 5J(5)(d)(e)(f) of the Act states:
Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(d) significant economic hardship that threatens the person's capacity to subsist;
(e) denial of access to basic services, where the denial threatens, the person's capacity to subsist;
(f) denial of capacity to earn a livelihood where the denial threatens the person's capacity to subsist. (emphasis in original);
Each of these serious harms would threaten the Applicant's capacity to subsist.
We submit that the Applicant's mental illness places him in a Particular Social Group that has a well-founded fear of persecution should he be returned to DRC.
In the context of his claim for complementary protection the applicant submitted:
6.4 We submit that the Applicant’s mental illness, conversion disorder, places him at risk of the significant harm of degrading treatment and punishment (the Act 36(2A)(e)). Therefore we submit that there are substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant’s removal from Australia that there is a real risk of him suffering significant harm.
The PI article establishes that, in DRC, mental illness is thought to be caused by witchcraft and results in shame on the entire community in which the person with the mental illness lives.
In DRC… there is stigma attached to people and the [larger] family of these people suffering from behavioural health problems. The cause of mental disorders is often sought in witchcraft or “black magic”. The shame of having a mental disorder extends to the family because each person is an integral part of a larger familial and social fabric. It is never just an individual who suffers from depression or schizophrenia and who is being treated for mental disorder; it is also the family, clan and tribe that suffers and must be treated.
The people suffering from mental disorder and other family or community are at risk of being accused of sorcerers or witches. Consequently, the first consultation is not with a psychologist or physician but with a traditional healer or priest (a Nganga-Nzambe, or “Healer of God” in the Lingala language). Christian or Muslim Congolese likewise seek healing for their inner problems from their pastors or imams rather than from a psychologist. It is very rare that a Congolese visits a psychologist or psychiatrist for behavioural health concerns (Schuster, 2013).
We submit that the Applicant’s mental illness would result in him being socially isolated as any community he would seek support from would reject him out of fear of being associated with his mental illness. This social isolation, we submit, would result in the Applicant suffering significant harm in the form of degrading treatment or punishment. This treatment would result in the, ‘feelings of fear, anguish and inferiority capable of humiliating and debasing the person and possibly breaking their physical or moral resistance’ previously stated in the Complimentary Protection Guidelines.
6.5 There are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to DRC there is a real risk that the applicant will suffer significant harm.
The applicant’s submission to the second respondent was predicated on him not being able to access adequate medical care for his mental illness and being isolated. However the second respondent found that the applicant could access medical care such that he would not suffer significant harm. The second respondent’s reasons for rejecting the applicant’s complementary protection claims are found at paragraphs 58 to 62 of the decision of the Tribunal. They are as follows:
58. The applicant claims that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the Democratic Republic of the Congo there is real risk that the applicant will suffer significant harm.
59. The Tribunal has considered if the applicant meets the complementary protection criteria under s36(2)(aa) of the Act particularly in relation to his medical condition and, having carefully considered and weighed the evidence, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to the Democratic Republic of the Congo there is a real risk that the applicant will suffer significant harm.
60. The Complementary Protection Guidelines state that the absence or inadequacy of medical treatment in the country of return does not generally amount to a violation of Article 7 of the ICCPR and would not generally meet the definitions of cruel or inhuman treatment or punishment or degrading treatment or punishment in s36(2A) of the Act.
61. The Tribunal is not satisfied that the evidence provided indicates that the applicant would not have access to some level of medical care either with or without cost, such that he would suffer significant harm within the meaning of the convention.
62. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to the DTC, there is a real risk the applicant will suffer significant harm as outlined in s.36(2)(aa) of the Act.
The applicant accepts that the second respondent’s reasons demonstrate engagement with the applicant’s claim that he would not be able to access medical care in the country of his return in respect of his physical disability. However, he argues that the second respondent “completely failed to deal with the integer of his claim that related to mistreatment by community members on account of mental illness”.
However, the applicant’s claim is based upon the proposition that he would face social isolation on account of his mental illness. It was said that country information set out at paragraph 6.4 of his written submission (extracted above) supported his clearly articulated claim. But the country information does not support the applicant’s claims of potential social isolation. That is not suggested as a consequence of the applicant’s condition in the country information contained in 6.4 of the applicant’s written submission. That information talks only about treatment for such conditions and the common notion that such conditions are caused by witchcraft or black magic. I was taken to no other information that made out the applicant’s claim of social isolation consequent upon his Conversion Disorder.
The second respondent’s decision did not need to specifically mention every item of evidence or every submission put to it, or provide a “line by line” refutation of the applicant’s claims: MHA v Buadromo (2018) 362 ALR 48 at [48-49]. The first respondent submits that on a fair reading of the second respondent’s reasons the second respondent at [62] did not accept the applicant’s claims that his mental condition would lead to a real risk of him suffering degrading treatment or punishment (as defined) through social isolation as he claimed. It is submitted that the social isolation claim had not been overlooked but is encompassed in the findings of greater generality expressed in [62] of the second respondent’s reasons. Moreover, because the factual premise that the applicant would be socially isolated because of his mental illness was not made out on any of the evidence before the second respondent, it is not surprising that it was dealt with in the more general finding set out at [62] of the reasons.
In my view, the first ground does not establish jurisdictional error.
Ground two is in the following terms:
Ground 2: Error of Law - The Tribunal erred, amounting to jurisdictional error, by failing to give adequate reasons for rejecting the Applicant’s claim to be owed complementary protection obligations under section 36 of the Migration Act 1958 (Cth).
Particulars
The Tribunal’s reasons for decision at [58] to [65] are conclusory and inadequate to satisfy the obligation created by section 368 of the Migration Act 1958 (Cth).
The applicant’s submissions make it clear that this ground asserts that the second respondent’s reasons at [62] are inadequate. He submits that the reasons show no findings of fact in respect of his social isolation claim and are inadequate.
The first respondent argues that inadequacy of reasons is not an independent basis of jurisdictional error if ground one fails: MIMA v Yusuf (2001) 206 CLR 323 at [68- 69]. I accept that submission. The obligation imposed by s.430 of the Migration Act was described in Yusuf as follows:
68. Section 430 does not expressly impose such an obligation. In its terms, it requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made. In Singh, significance was attached to the use of the word "material" in s 430(1)(c). It was said [29] that "material" in the expression "material questions of fact" must mean "objectively material". Even if that were right, it would by no means follow that the Tribunal was bound to set out findings that it did not make. But it is not right to read "material" as providing an objective or external standard of materiality. A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision‑maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.
I accept the first respondent’s submission that because ground one has failed, this ground must also fail.
Conclusion
The second respondent’s decision is not attended by jurisdictional error. The application for review must be dismissed with costs in the sum sought by the first respondent.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 17 December, 2020
Associate:
Date: 17 December, 2020
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