BCR20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 196
•27 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)BCR20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 196
File number: SYG 625 of 2020 Judgment of: JUDGE CAMERON Date of judgment: 27 October 2021 Catchwords: MIGRATION – persecution – review of Immigration Assessment Authority (“IAA”) decision – visa – protection visa – refusal.
ADMINISTRATIVE LAW – allegation that the IAA’s decision affected by jurisdictional error by reason that it made findings that were unreasonable, failed to consider all the evidence, failed to release to the applicant material in its possession that the applicant did not have and failed to conduct a lawful review by reason that the Secretary of the Department of Home Affairs did not provide it with all necessary documents.
Legislation: Migration Act 1958 (Cth), ss 5, 5H, 5J, 36, 473BB, 473CA, 473CB, 473DA, 473DB, 473GA, 473GB, 477
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), sch 4
Cases cited: Minister for Immigration & Border Protection v CED16 (2020) 94 ALJR 706
Sankey v Whitlam (1978) 142 CLR 1
Police Federation of Australia v Nixon (2011) 198 FCR 267
EVS17 v Minister for Immigration and Border Protection (2019) 268 FCR 299
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Division: Division 2 General Division Number of paragraphs: 62 Date of hearing: 18 November 2020 Counsel for the Applicant: Mr I. Chatterjee Solicitor for the Applicant: Legal Aid NSW Counsel for the Applicant: Mr T. Reilly Solicitor for the Applicant: Australian Government Solicitor ORDERS
SYG 625 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BCR20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
27 OCTOBER 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CAMERON
INTRODUCTION
The applicant is a citizen of Iran who arrived by boat without a visa permitting him to enter and stay in Australia. On 1 March 2016 he lodged an application for a Safe Haven Enterprise Visa (“SHEV”) with what is now the Department of Home Affairs (“Department”), and has alleged that he feared persecution in Iran because of his religious beliefs, his ethnicity, his imputed political opinion as a failed asylum seeker in circumstances where information about him had been revealed in a data breach and because he was a member of a social group of prisoners. On 9 December 2016 a delegate (“Delegate”) of the first respondent (“Minister”) refused the applicant’s application and referred his matter for review to the second respondent (“IAA”).The applicant was unsuccessful before the IAA and has applied to this Court for judicial review of the IAA’s decision.
The applicant’s application for judicial review was filed outside the limitation period prescribed by s.477 of the Migration Act 1958 (Cth) (“Act”) and the applicant applied for an extension of time within which to bring this proceeding. On 18 November 2020 the time for the commencement of this proceeding was extended to the filing of the initiating application.
In this judicial review proceeding, the Court’s task is to determine whether the IAA’s decision is affected by jurisdictional error as that is the only basis on which it can be set aside.
For the reasons which follow the application will be dismissed.
APPLICANT’S EVIDENCE
The applicant’s solicitor, Ms Bones, filed an affidavit affirmed 30 October 2020 that annexed documents including a 2006 “WHO-AIMS Report on Mental Health System in the Islamic Republic of Iran” and the following documents produced informally by the Minister in response to a subpoena:
(a)documents covered by a s.473GB(5) certificate;
(b)a referral to the Immigration Assessment Authority and disclosure checklist;
(c)medical incident reports; and
(d)the applicant’s medical records held by the Department.
FAST TRACK REVIEW LEGISLATIVE FRAMEWORK
On 18 April 2015 the Act was amended to provide for a “fast track review” process in relation to certain unauthorised maritime arrivals: sch.4 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). Section 5(1) of the Act relevantly defines a “fast track applicant” as a person:
(i)who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and
(ii)to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and
(iii)who has made a valid application for a protection visa in accordance with the determination;
The applicant is a fast track applicant.
Section 5(1) also defines a “fast track decision” as a decision to refuse to grant a protection visa to a fast track applicant. A “fast track reviewable decision” is relevantly defined as a fast track decision in relation to a fast track review applicant: s.473BB of the Act. Certain fast track applicants are excluded from the fast track review process but it has not been suggested that the applicant was such an applicant.
Fast Track Process and Procedures
Part 7AA of the Act sets out the IAA fast track process and procedures.
Section 473CA is found in pt.7AA and provides that the Minister must refer a fast track reviewable decision to the IAA as soon as reasonably practicable after the decision is made. There is no provision for a fast track applicant to apply to the IAA for a review.
Section 473CB relevantly provides:
473CB Material to be provided to Immigration Assessment Authority
(1)The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:
(a) a statement that:
(i)sets out the findings of fact made by the person who made the decision; and
(ii)refers to the evidence on which those findings were based; and
(iii)gives the reasons for the decision;
(b) material provided by the referred applicant to the person making the decision before the decision was made;
(c) any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review; …
Division 3 of pt.7AA of the Act sets out the manner in which fast track reviews are conducted. Section 473DA provides that that division and ss.473GA and 473GB are to be taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to IAA reviews. The presently material sections of div.3 relevantly provide:
473BBDefinitions
In this Part
…
new information has the meaning given by subsection 473DC(1).
…
473DAExhaustive statement of natural justice hearing rule
(1)This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.
(2)To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.
473DBImmigration Assessment Authority to review decisions on the papers
(1)Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
(a) without accepting or requesting new information; and
(b) without interviewing the referred applicant.
…
Section 473GB relevantly provides:
473GBImmigration Assessment Authority’s discretion in relation to disclosure of certain information etc.
(1) This section applies to a document or information if:
(a) the Minister has certified, under subsection (5), that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate … that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or
(b) the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.
…
STATUTORY CRITERIA FOR THE GRANT OF A PROTECTION VISA
Since 18 April 2015, the Act has prescribed the conditions for the grant of a protection visa relevantly in the following terms:
36Protection visas—criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
…
(2A)A non-citizen will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
5HMeaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a)in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
…
5JMeaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
…
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
…
(b) the persecution must involve serious harm to the person; and
…
(5)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:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(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 of any kind, where the denial threatens the person’s capacity to subsist.
…
BACKGROUND FACTS
Protection visa claims
The facts alleged in support of the applicant’s claim for a protection visa were summarised by the IAA in its decision record as follows.
Applicant’s claims
The applicant alleged that:
(a)he was fearful about returning to Iran because he:
(i)would be considered an apostate for having renounced the Islamic faith;
(ii)is a member of the Bakhtiari tribe;
(iii)is a member of a social group of prisoners; and
(iv)in circumstances where information about him was revealed in a February 2014 data breach, he would be imputed with a political opinion as a failed asylum seeker;
(b)he developed an interest in Buddhism whilst in Iran, and identified with this religion and not with Islam. The applicant had difficulty explaining his religious beliefs but believed that “I created God”;
(c)his renunciation of the Islamic faith and his religious beliefs prevented him from getting married in Iran even though his parents wanted him to marry and he had had two serious relationships;
(d)after he left school he worked for seven years but became dejected when he could not pursue his vocation in geology;
(e)he worked in the unlawful gold industry from fifteen to twenty-one or twenty two years of age;
(f)he was beaten as a member of the Green Movement and, because he lived in Khuzestan and he and his friends were students and intellectuals, the police became involved;
(g)he was arrested, detained and released without charge because he had attempted to stop a fight. He was also arrested on multiple occasions for drinking alcohol;
(h)in October 2012 he was forcibly taken to a drug rehabilitation centre for three months. For twenty-one days he was prohibited from contacting anyone, but found out his parents had known where he was. His belief was that his mother thought he had shown symptoms of having a drug addiction and her friends informed her that he required rehabilitation. He departed Iran soon after being released;
(i)although he had taken drugs (marijuana, opium and herbal drugs for pain following a motorcycle accident) he did not have a drug addiction and disagreed that he needed to be rehabilitated;
(j)he feared that if he returned to Iran authorities would abduct him and return him to the rehabilitation centre and that he could also experience problems because he sought asylum from a Western nation;
(k)while he was in immigration detention, information about him was mistakenly published on the internet by the Department of Immigration; and
(l)he was involuntarily admitted to an Australian hospital with acute schizophrenia, but he disagreed with this diagnosis.
Applicant’s mental health
The applicant:
(a)was found lost in bushland and was taken involuntarily to Hospital A in August 2013, where he was diagnosed with schizophrenia. His 5 November 2013 hospital transfer/discharge summary notes stated that although he denied having a mental illness, it was probable he had suffered from untreated or controlled schizophrenia in Iran
(b)was thereafter sent to immigration detention but according to his International Health and Medical Services (“IHMS”) “Health Transfer Summary” dated 1 April 2016, which recorded notes made on 17 January 2014, 15 April 2015, 20 November 2015, 23 November 2015, 22 January 2016 and 3 February 2016, he failed to adhere to the treatment plan for his mental health which appeared to deteriorate;
(c)left immigration detention in April 2016 and was sent to Hospital B, for an overnight medical assessment where he was an in-patient for several weeks; and
(d)failed to present for admission in June 2016 and was involuntarily admitted, according to an IHMS Incident Report dated 27 June 2016 to Hospital C, where he remained until October 2016.
The applicant’s legal representative submitted that the applicant’s mental health had been left untreated in Iran and that, because of his mental condition and “erratic” and “odd” behaviours, if he returned to Iran:
(a)he would be unable to obtain the medical and social services he needed;
(b)he was at risk of homelessness and destitution; and
(c)there was a real risk that authorities would perceive him to be “anti-regime” or “anti-Islam”.
The applicant’s former legal representative submitted that the applicant was at risk of harm because the Iranian authorities would impute to him an anti-regime political opinion because he would be a failed asylum seeker whose information had been released in a 2014 data breach and because of other factors including:
(a)his mental health condition;
(b)his religious beliefs; and
(c)because he had been arrested for consuming alcohol.
The applicant did not mention his mental illness in his first statement. In his 14 September 2016 statement he stated that he was in hospital involuntarily with a diagnosis of schizophrenia, with which he disagreed.
The applicant’s entry interview form said that he had received a brain injury after his mother had fallen down stairs while pregnant with him and that as a child he had had to receive brain scans and MRIs. The applicant also said that he had been exempted from military service.
The IAA’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the IAA found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under s.36(2)(a) or (aa) of the Act. Having regard to the limited issues raised in this proceeding, the IAA’s decision was relevantly based on the following findings and reasons:
(a)the IAA accepted that the applicant was a citizen of Iran;
(b)the IAA accepted that the applicant had been admitted to Hospital A after being found lost in bushland;
(c)the IAA accepted that the applicant had been excused from military service, perhaps for medical reasons;
(d)having had regard to medical documentation the IAA was satisfied that the applicant suffered acute schizophrenia which caused him to display certain behaviours;
(e)available country information showed that Iran had a “network of outpatient facilities” and that hospitals delivered “comprehensive psychosocial treatments” and “community based psychiatric services”. The IAA cited a WHO-AIMS Report which stated that there had been continuous campaigns and education on mental health and that “the integration of mental health care within the primary health system is an impressive achievement”. The IAA was satisfied of the availability of mental health services throughout Iran and of the accessibility of specialised, and often subsidised, medications at a primary level of care or in specialist mental health clinics;
(f)the IAA had regard to submissions made by the applicant’s legal representative that there was a high risk that authorities might label applicant as anti-regime or anti-Islam because he was unable to understand verbal cues and facial expressions and so might react to authorities “aggressively, irrationally or evasively”, especially where he would come into direct contact with authorities upon returning to Iran as a failed asylum seeker;
(g)the IAA accepted that the applicant had severe schizophrenia, exhibited “erratic” and “irrational” behaviour when not taking medication and on one occasion ran away from Australian authorities. However, based on Hospital A’s 5 November 2013 transfer/discharge summary, the IAA noted that the condition had probably been untreated or controlled in Iran and, given the lack of incidents in Iran, was not satisfied that there was a real chance that the applicant would be imputed with anti-regime or anti-Islam views;
(h)the IAA was satisfied that Iranian authorities would recognize the applicant’s mental health issues, that there was a sophisticated mental health service in Iran and was not satisfied that the applicant would be refused those services. It was not satisfied that it was reasonably foreseeable that the applicant would face persecution based on his mental illness upon return to Iran;
(i)the IAA was not satisfied that there was a real chance of the applicant facing homelessness or destitution upon returning to Iran. It accepted that the applicant had exhibited erratic behaviours in Australia but observed that he had no family in Australia, save for a cousin with whom he was not in contact. Although it was conceivable that the applicant might have difficulty obtaining and retaining stable employment, there was no evidence that he had been homeless in Iran. Every three days he spoke with his family, with whom he had previously resided, and the IAA was satisfied that if he returned to Iran his family would support him;
(j)the IAA was not satisfied that the applicant would be imprisoned should he return to Iran or that there was a real chance that his mental health would result in him being seen as anti-regime or anti-Islam;
(k)although the IAA accepted that the applicant identified as a Buddhist and did not practise Islam, in the SHEV interview the applicant said he had been interested in Buddhism since childhood but was not a religious person, and in his first statement said he had no religion. Even though his behaviour could be “erratic” or “irrational”, the IAA was not satisfied that the applicant would vocalise his religious beliefs, particularly as he had not done so in the past and there was no evidence that he had previously experienced issues because of his religious beliefs. The IAA was not satisfied that the applicant’s renunciation of Islam or his interest in Buddhism would cause him to face a real chance of persecution;
(l)the IAA was also not satisfied that the applicant would face a real chance of serious harm because of a political opinion that might be imputed to him based on behaviours he might exhibit because of his mental illness, should he not take his medication;
(m)although the IAA accepted that the applicant used drugs a few times to control pain following an accident on his motorcycle and that he had been placed in a rehabilitation facility against his will there was no evidence of him having used drugs subsequently and the IAA was not satisfied that he would face a real chance of being abducted and taken back to the rehabilitation facility by the authorities; and
(n)for reasons similar to those stated above, the IAA was also not satisfied that the applicant would face a significant harm under the complementary protection assessment criteria.
PROCEEDING IN THIS COURT
In his amended application the applicant alleged:
1.The decision of the Authority is affected by jurisdictional error in that the Authority made findings that were legally unreasonable.
a.The Authority’s finding at [22]-[23] of its reasons that the Applicant had schizophrenia which was most likely long standing, and untreated or controlled in Iran lacked logical or probative basis, and/or was irrational, where:
i. The Authority purported to base the finding on a ‘transfer/discharge summary’ dated 5 November 2013;
ii. The information in the transfer/discharge summary about the Applicant’s illness being longstanding was stated to be ‘from gathering information’ and not from professional observation or assessment of the Applicant;
iii. The information referred to was advice from an unnamed person ‘familiar with the practice of that country’ that the Applicant’s admission to a ‘behavioural unit’ indicated that the Applicant had suffered from serious mental illness;
iv. The Authority at [37] of its decision found that the Applicant’s admission was to a drug rehabilitation centre, unrelated to his mental illness.
b.The Authority’s finding at [25] that the Applicant would be able to access mental health services in Iran lacked logical or probative basis, where the country information report referred to dated from 2006.
c.The Authority’s finding at [22] that there was ‘an absence of incidents whilst the applicant was in Iran’ was irrational where incidents were claimed by the Applicant and accepted by the Authority at [33].
2.The Authority overlooked, in the sense of failing to consider, critical material which supported a central part of the case put by the Applicant and by reason of the gravity of that error committed jurisdictional error.
a.The Authority had before it material covered by a certificate issued pursuant to section 473GB of the Migration Act 1958 (Cth) (“the Act”).
b.Included in that material were reported concerns from a senior Departmental Officer that the Applicant, by reason of his mental health issues, was a risk to himself and others; and further that it was “only a matter of time for a serious incident to occur based on the client’s behaviour and ongoing regular incidents”.
c.A central tenet of the Applicant’s case (which was recognised by the Authority – CB 221 at [22]; 223 at [28]) was that his erratic behaviour by reason of his mental health might result in adverse attention from Iranian authorities.
d.The Authority failed to consider the material identified at 2.b. above that identified a likelihood of the Applicant engaging in behaviour that might result in adverse confrontations with members of the community or elements of the State by reason of his mental health issues.
e.Further, the Authority had before it material that indicated that the Applicant was incapable of living independently; was at times legally incapacitated by reason of his mental health issues; required community treatment orders to ensure compliance with treatments; and was vulnerable for neglect and exploitation.
f.The Applicant made express claims of being unable to subsist if returned to Iran (CB 219 at [15]).
g.The Authority failed to consider the material identified at 2.e. in consideration of this aspect of the Applicant’s claims.
3.Further and/or in the alternate to Ground 2, the Authority unreasonably failed to consider the exercise of its powers under section 473GB(3)(b) to release material in its possession (and subject to a certificate issued under section 473GB) to the Applicant for consideration.
a.The Applicant repeats and relies on particulars 2.a – 2.c.
b.The Applicant did not have in his possession the material identified at paragraph 2.b., and the Authority knew or should reasonably have known of this fact.
4.The Authority failed to complete its statutory task to review the decision of the delegate of the first respondent as the review material before it was, due to a failure on part of the Secretary to comply with section 473CB(1)(c), necessarily incomplete.
a.The Secretary had in his or her possession or control medical records of the Applicant that showed that the Applicant had, over an extended period of time (including after his stabilisation on treatment) refused to comply with his treatment regime; demonstrated a lack of insight into his condition; required community treatment orders to ensure compliance with his treatment regime; engaged at times in delusional or bizarre behaviour; had an inability to live independently; and raised concerns that he was vulnerable to exploitation.
b.Further the Secretary had in his or her possession or control psychiatric and neuropsychological assessment reports of the Applicant’s mental health obtained by the Department.
c.The Secretary failed to consider whether the material in subparas 4.a. – 4.b. was potentially relevant to the review to be conducted by the Authority, and/or unreasonably considered that material to be irrelevant.
d.That material was relevant to the review.
CONSIDERATION
Ground 1
Although the first ground of the amended application alleges jurisdictional error based on unreasonable or illogical findings on the part of the IAA, in substance most of the particulars of the allegation are challenges to fact finding that was open to the IAA on the evidence. The applicant contends that the IAA should have rejected certain evidence or alternatively reached different conclusions on the evidence but that does not take the matter any further than a disagreement with the decisions the IAA made.
No basis has been shown upon which it might be concluded that no reasonable decision-maker would have relied on the contents of the November 2013 hospital discharge summary, referred to in particulars (a)(i), (ii) and (iii). The fact that some of its details of the applicant’s history were different from those of another version he supplied at a different time, referred to in particular (a)(iv), did not make the IAA’s reliance on the summary unreasonable in the relevant sense, particularly in circumstances where, in their submissions to the Department of 30 November 2016, the applicant’s advisers had referred without criticism to the statement in the transfer/discharge summary that the his illness was “most likely long standing, and untreated or controlled in Iran”. That understanding was adopted later in those submissions when the applicant’s advisers submitted that:
… Despite the obvious severity of his condition his illness was left undiagnosed and untreated in Iran.
In any event, particular (a)(iv) overstates things. The IAA did not make a finding, as that particular alleges but simply said, relevantly:
… It is also plausible that the applicant’s mother may have believed the applicant had an addiction to drugs as a result of this drug use and placed him into a rehabilitation centre against his will.
That takes the matter nowhere.
Particular (b) implies that the 2006 country information cited by the IAA was materially out of date but no evidence has been led which would support such a conclusion or, were it to have been true, that the IAA was aware that it was.
Particular (c) is different from the rest of the allegation in the sense that it depends on an interpretation of the IAA’s reasons for decision and what it meant when it spoke of “an absence of incidents”. The IAA should be understood to have been referring to an absence of material incidents. The IAA’s reasons demonstrate that it was aware of the applicant’s history in Iran and of his brushes with the Iranian authorities but on any assessment they were trivial in nature and plainly the IAA considered them to have been of no material significance. The applicant has submitted that the IAA should have considered these matters through the prism of his psychiatric condition but that was a different issue. In any event the risk that the applicant might exhibit bizarre behaviour upon return to Iran was considered by the IAA which concluded that, if he did, it would be recognised by the Iranian authorities as the product of a psychiatric condition, that treatment would be available to him and that it would not see him imputed with an anti-regime opinion.
The first ground of the amended application discloses no error on the part of the IAA.
Ground 2
The second ground of the amended application alleges that the IAA failed to consider evidence in two respects. The first relates to evidence of the concerns of an officer of the Department that it was only a matter of time before a serious incident arising out of the applicant’s behaviour would occur. The second is said to have been evidence that, by reason of his poor mental health, the applicant would not be able to subsist in Iran were he to return there.
As to the first issue, it must be accepted that the IAA was aware of the concerns of the official because, at [15] of its decision record in the summary of the evidence before it, it referred to the correspondence in which those concerns were expressed. That evidence indicates that the official’s concerns were not overlooked.
As to the second point, the IAA did consider the possibility that the applicant would have difficulties subsisting if he returned to Iran but concluded that his difficulties in Australia were related to the fact that he had no support from friends or family here and it observed that he did have such support available to him in Iran and as a consequence would not become homeless or destitute.
Ground 3
The third ground alleges that the IAA failed to consider exercising power under s.473GB(3)(b) of the Act, quoted earlier in these reasons, to release to the applicant for his consideration the information regarding the departmental officer’s concerns. However, the section has no application in this case.
The certificate in question relevantly stated:
…
In my view, this document or information should not be disclosed to the referred applicant or the referred applicant's representative because:
(a)the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest because it is an internal working document of the department and it contains personal identifiers of persons other than the applicant.
…
In similar circumstances, the High Court said in Minister for Immigration & Border Protection v CED16 (2020) 94 ALJR 706 at 709 [12]:
The Minister for his part had conceded at the hearing of the appeal to the Federal Court that the Certificate was invalid. The concession was well made. The reason specified in the Certificate, that the Identity assessment Form was a “Departmental working document”, was plainly an insufficient basis for “a Claim by the Crown in right of the Commonwealth in a judicial proceeding” that information or matter contained in the Identity Assessment Form “should not be disclosed”. The Certificate therefore failed to meet the description in s 473GB(1)(a), as a consequence of which the whole of s 473GB (including the duty imposed on the Secretary by s 473GB(2)(a) and the powers conferred on the Authority by s 473GB(3)(a) and (b)) simply had no application to the Identity Assessment Form. (per Gageler, Keane, Nettle and Gordon JJ)
The certificate in this case did not assert that the information to which it referred had been given to the Department in confidence and it could not be said that public interest privilege otherwise applied to it.: cf Sankey v Whitlam (1978) 142 CLR 1; Police Federation of Australia v Nixon (2011) 198 FCR 267.
For those reasons s.473GB of the Act did not apply in this case and so error on the basis contended by the applicant in the third ground of the amended application does not arise. In any event, the documents that contained the information, given the identifying number CLD2013/5880141, had been before the Delegate as page 9 of his reasons for decision records and s.473DA(2) of the Act provides that the IAA was not required to provide such material to the applicant. Nor, as the Delegate expressly referred to the documents in his reasons, albeit by identifying number, would it appear that the IAA had any duty to consider supplying them on in its own motion.
Ground 4
The applicant alleges in the fourth ground of his amended application that the IAA’s decision is affected by jurisdictional error because the IAA had been unable to consider certain documents that, it was not disputed, had not been provided to it by the Secretary of the Department, contrary to s.473CB(1)(c) of the Act, quoted earlier. Material documents were annexed to Ms Bones’s 30 October 2020 affidavit.
Notwithstanding how the ground was pleaded, in addresses the issue became whether the Secretary’s failure to provide the IAA with the documents identified by the applicant caused its decision to be affected by jurisdictional error. A failure by the Secretary to comply with s.473CB(1)(c) of the Act may prevent the IAA from conducting the “review” contemplated by the Act such that its decision will be affected by jurisdictional error. EVS17 v Minister for Immigration and Border Protection (2019) 268 FCR 299 at 308 [35]. However, that will only be the case if the documents not provided by the Secretary could realistically have resulted in the IAA making a different decision: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 445 [45].
The applicant argued that the material annexed to Ms Bones’s affidavit should have been provided to the IAA because it had been necessary for the IAA:
… to appreciate longitudinally and in proper context the severity of [his] mental health issues and the various (erratic) ways in which they were expressed.
The applicant specifically referred in that regard to documents recording his:
(a)strange or bizarre behaviour;
(b)arguments or physical altercations; and
(c)agitation.
The applicant also referred to three reports annexed to Ms Bones’s affidavit.The first was a report dated 19 September 2014 by Dr K Dimarco, Consultant Psychiatrist and Psychotherapist. In his written submissions, the applicant identified the following as information about him in that report that should have been available to the IAA:
(a)as a child, he had suffered multiple rapes by a teacher and an employer. He had not disclosed this information to any other person, but the assaults caused him to end his schooling and gave rise to his desire to leave Iran;
(b)he had no psychiatric history in Iran;
(c)he might not be capable of living independently;
(d)he might be at risk of behaving inappropriately to vulnerable women in detention and could otherwise place others at risk or behave inappropriately; and
(e)his condition might have deteriorated in Australia.
The second report was an IHMS Special Needs Health Assessment dated 22 August 2014.In his written submissions, the applicant identified the following as information about him found in that document which he contended should have been available to the IAA:
(a)he had a “long history of torture and trauma”;
(b)he had no insight into his condition and engaged poorly with his treating team;
(c)he might not be capable of living independently;
(d)he might be at risk of behaving inappropriately to vulnerable women in detention and could otherwise place others at risk or behave inappropriately;
(e)he was vulnerable to neglect and exploitation; and
(f)his future employment opportunities were likely to be limited given his condition.
The third report was a neuropsychological assessment prepared by Dr K Wallace, Senior Clinical Neuropsychologist, dated 28 May 2014. In his written submissions, the applicant identified the following as information about him found in that assessment which he contended should have been available to the IAA:
(a)he had a “history of torture and trauma”;
(b)he had no insight into his condition and engaged poorly with his treating team;
(c)he might not be capable of living independently;
(d)he demonstrated “poor self-care, poor planning and organisation, and difficulties processing information and undertaking tasks”;
(e)he might be at risk of behaving inappropriately to vulnerable women in detention and could otherwise could place others at risk or behave inappropriately;
(f)he was vulnerable to neglect and exploitation; and
(g)his future employment opportunities were likely to be limited given his condition.
The applicant also submitted that Dr Wallace’s assessment contained the results of cognitive tests which showed that:
(a)he suffered from “severe levels of depression”;
(b)he performed poorly on a number of tasks and areas of executive functioning, in that he was unable to recite the alphabet, the months, perform serial additions or to divide his attention between alternating tasks;
(c)his immediate auditory attention span, processing speed and non-verbal reasoning were all “in the extremely low range”;
(d)his ability to hold and manipulate information in working memory was “limited”;
(e)his design fluency, cognitive flexibility and strategic thinking were in the “average to low average range”; and
(f)the tests suggested the presence of a neurodevelopmental condition and indicated that he would “benefit substantially from functional training for activities of daily living including basic self-care”.
The applicant argued that those reports were relevant because they identified a number of significant matters not disclosed in the medical material in the IAA’s possession and, to the extent that they were repetitive of matters already raised, lent credence to his claims by reason of the authors’ expertise and/or positions.
The applicant compared the material that had not been supplied with what the Secretary did provide to the IAA, starting with the IHMS Health Transfer Summary dated 1 April 2016 which recorded psychiatric and general practitioner assessments of the applicant’s psychological state over the preceding two years and listed his then-current medications. Amongst other things, the assessments referred to the following conditions, presentation and behaviour of the applicant:
(a)chronic schizophrenia;
(b)psychotic and paranoid;
(c)refuses medication;
(d)thought disordered;
(e)perplexed;
(f)severe thought disorder;
(g)need for ongoing depot antipsychotic mediation;
(h)hearing voices;
(i)unusual behaviour;
(j)aggressive towards SERCO staff;
(k)became very agitated;
(l)anger outburst;
(m)increasing unusual behaviour and irrational thoughts;
(n)cannot live in the community due to poor social and living skills, his mental illness and cognitive impairment;
(o)vulnerable to neglect and exploitation; and
(p)could put others “in risk”.
The following impressions of the applicant were expressed in those reports:
•Psychotic and paranoid. Refuses medication. low risk of harm to self or others
•… has chronic schizophrenia and needs ongoing depot antipsychotic meds
•… he seems psychotic. He admits hearing voices, but he states “if he talks about it, it becomes dangerous”. He states he does not talk about it because he feels more sick.
•Chronic paranoid schizophrenia with dominant negative, cognitive symptoms, and residual positive symptoms
The applicant also referred to the following material in the IAA’s possession:
(a)a discharge referral from Hospital D dated 9 July 2013 that recorded him having been seen to carry a knife twice and to have said “that he will burn the motel down”;
(b)a community treatment order assessment dated October 2013 citing his diagnosis of schizophrenia;
(c)the discharge summary referred to earlier following his August to November 2013 admission to Hospital A, which recorded his longstanding mental illness and the fact that it was likely that he had suffered from serious mental illness when in Iran. It also recorded:
On admission he was dishevelled and even with an interpreter could not explain his behaviour of running away from his accommodation, collecting garbage or climbing on trees.;
(d)the IHMS Incident Report dated 27 June 2016 recording an “Acute psychiatric hospital admission” to Hospital C on 23 June 2016.
The applicant also referred again to Dr Dimarco’s report which says:
The stresses of immigration could have precipitated psychosis, or possibly he came to Australia in a disorganised state; however, I do not have sufficient information to support either hypothesis.
He submitted that that passage raised an issue as to whether his condition was longstanding or whether his mental health had deteriorated in Australia, arguing that that was a matter that would have been directly relevant to the IAA’s findings because it had understood his condition to have been longstanding.
The applicant also submitted that it was necessary to compare the level of detail in the material before the IAA with the level of detail in the material that was not before it. He argued that the medical information supplied to the IAA was “global overview summary material” whereas the information annexed to Ms Bones’s affidavit gave “a much better picture of the applicant’s mental health condition”, specifically its progression and deterioration, and depicted in much greater detail the various ways in which he had behaved erratically, together with instances of aggression, agitation and physical altercations.
The applicant submitted that having the totality of the medical material could have resulted in the IAA forming a different view as to the severity of his condition and the likelihood of him engaging in activity that would bring him to adverse persecutory attention of the Iranian authorities or to be at risk of significant harm through an inability to subsist.
I am not persuaded by those arguments. I agree with the Minister’s written submission that:
… The IAA accepted that the applicant had acute schizophrenia and had exhibited odd and erratic behaviour as a result. However it considered that he would not be destitute or homeless in Iran because he could live with his family as he had in the past, and would not be imputed as an anti-regime because the Iranian authorities would if he came to their attention identify that he had mental health issues. There is no realistic reason to think that this reasoning would have been different just because the IAA had further material indicating the applicant’s schizophrenia and associated behaviour. (references omitted)
It should be noted that the three medical reports to which the applicant has referred all predated the IHMS notes and summaries referred to earlier at [17(b)], and which the IAA expressly stated at para.18 of its reasons it had considered. Importantly, those earlier reports did not, in substance, say anything of importance than was not also said in the later material. Similarly, with one exception, the documents which recorded the applicant’s strange behaviour, his arguments, his physical altercations and his agitation also pre-dated the IHMS Transfer Summary, some by more than two years. That one exception, found at pp.150-151 of Ms Bones’s affidavit, was the discharge summary relevant to the applicant’s period of treatment at Hospital C, and relevantly referred to him being involved in “an unprovoked altercation with a member of the public” and “a fight in the ward with two male patients”. The documents did no more than give further examples of the sort of behaviour that was also recorded in the documents which the IAA had been given. They contained nothing of materiality that the IAA did not already have.
To the extent that the cognitive tests mentioned in Dr Wallace’s report are said to be relevant, I disagree. In light of the reasons it gave for concluding that the applicant was not at risk of destitution or homelessness in Iran, the IAA’s ignorance of the tests was immaterial to its decision.
It was not made clear why a detailed longitudinal perspective of the applicant’s condition would have been of any particular significance to the IAA’s decision-making, given that the issue before it was the applicant’s condition in the reasonably foreseeable future, not how it had fluctuated in the past. In this regard, although the applicant suggested that Dr Dimarco’s report cast doubt on the long term nature of his condition, it should be noted that the doctor did no more than express her uncertainty as to the timing of the onset of his condition, saying that she had insufficient evidence to reach a firm conclusion as to when that had occurred. Given that the Hospital A discharge summary identified the evidence its author relied on to reach the conclusion that the applicant’s condition had afflicted him in Iran, I am not persuaded that having Dr Dimarco’s report might, realistically, have led to the IAA reaching a different conclusion on the review.
Further on the issue of a longitudinal perspective, the IAA’s presiding member did not claim to have medical or psychological qualifications and so did not have the expertise to extrapolate from the applicant’s historical medical records, assuming that that is possible. In any event, the argument misrepresents the situation because the documents which the IAA had before it covered roughly the same time period as did the documents which it did not have and so the IAA did have a longitudinal perspective of the applicant’s condition.
Part of the applicant’s argument was that the three reports that had not been provided to the IAA contained information that was not in the IAA’s possession. His written submissions relevantly referred to evidence that:
(a)his desire to leave Iran arose from multiple rapes he had suffered as a child from a teacher and employer, which assault he had not disclosed to any other person and for which reason he had stopped schooling;
(b)he had a “long history of torture and trauma”; and
(c)that he had no psychiatric history in Iran.
By way of comment on those submissions:
(a)the applicant did not seek to demonstrate why the sexual assaults he alleged had a significance beyond the historical or why knowing of those allegations could have led to a different decision on the review. The applicant advanced no claims based on those assaults. To the extent that they may have contributed to his poor mental health, and Dr Dimarco did not rate them more highly than “risk factors” and in the same class as his “conflictual family environment” in Iran, they are of no consequence given that the IAA accepted that the applicant had acute schizophrenia. It should also be noted that Dr Dimarco recorded that the applicant did not have nightmares or flashbacks about the sexual assaults;
(b)the information concerning the applicant’s alleged “long history of torture and trauma” was referred to in the IHMS Transfer Summary too; and
(c)the applicant’s assertion of having had no psychiatric history in Iran, which was cited in his written submissions, was recorded in Dr Dimarco’s report of 19 September 2014 but that contention was also recorded in the following terms in Hospital A’s discharge summary:
… [BCR20] strongly denies any history of mental illness or specifically schizophrenia …
which was amongst the material that the IAA had.
The applicant did not elaborate on his submission that it would have been material to its decision for the IAA to have known that some of the information that it had was repeated in other expert reports. He did not identify what conclusion reached by the IAA regarding his mental health and its effects on him would could have been materially different if the information had been in the IAA’s possession. This may be because, at the end of the day, the information in question and the information the IAA had, painted essentially the same picture.
The applicant did submit that the extent and severity of his condition were important but he did not contend that the IAA’s understanding of that condition was incorrect. His argument was just that somehow, if the IAA had had all the medical material, it might have reached a different decision. But it was not explained how that might have occurred, given that the IAA accepted that the applicant had severe schizophrenia accompanied by bizarre behaviour. Further, it did not discount the possibility that the applicant would come to the attention of the Iranian authorities, but found that they would recognise him as a person suffering from mental illness and would treat him accordingly, including through access to mental health facilities.
Having regard to the information that the IAA was given and the information it was not given, I do not find that if the latter had been supplied, a different decision by the IAA could realistically have resulted.
CONCLUSION
Jurisdictional error on the part of the IAA has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 27 October 2021
1
5
2