BHB16 v Minister for Immigration and Border Protection
[2018] FCAFC 42
•27 March 2018
FEDERAL COURT OF AUSTRALIA
BHB16 v Minister for Immigration and Border Protection [2018] FCAFC 42
Appeal from: Application for extension of time: BHB16 v Minister for Immigration and Anor [2016] FCCA 2566 File number: NSD 1168 of 2017 Judges: NORTH, FARRELL AND DAVIES JJ Date of judgment: 27 March 2018 Catchwords: MIGRATION – application for extension of time – whether amended proposed grounds of appeal has reasonable prospects of success – proposed questions to be raised on appeal before the Federal Court were not raised before the Administrative Appeals Tribunal – application dismissed Date of hearing: 28 February 2018 Date of last submissions: 8 March 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 45 Solicitor for the Applicant: Mr S Hodges of Hodges Legal Counsel for the Respondents: Mr P M Knowles Solicitor for the Respondents: Clayton Utz ORDERS
NSD 1168 of 2017 BETWEEN: BHB16
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGES:
NORTH, FARRELL AND DAVIES JJ
DATE OF ORDER:
27 MARCH 2018
THE COURT ORDERS THAT:
1.The application for an extension of time is refused.
2.The applicant pay the first respondent costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THE COURT:
The applicant applies for an extension of time within which to appeal from orders made by the Federal Circuit Court on 5 October 2016.
The Federal Circuit Court dismissed an application for review of a decision of the Administrative Appeals Tribunal made on 27 April 2016. The Tribunal affirmed the decision of a delegate of the first respondent, Minister for Immigration and Border Protection, not to grant the applicant a protection visa.
Matters relevant to an application for an extension of time within which to appeal are the length of the delay and whether there is a reasonable explanation for the delay in seeking to appeal, whether there is prejudice to any other party, and whether the applicant has a reasonable prospect of success on the appeal.
The present application was brought over eight months after the time limited for instituting an appeal. The applicant explained that he applied for Ministerial intervention and the delay in instituting the appeal arose from waiting for a decision on the application to the Minister. The Minister does not claim any prejudice resulting from the applicant’s delay. However, it is unnecessary to address these questions because, as explained in these reasons for judgment, there is no reasonable prospect that the proposed appeal would succeed. Hence, it would be futile to grant the leave sought by the applicant.
The applicant is a citizen of Afghanistan who was born in 1975. He claimed a fear of persecution if he returned to Afghanistan because of his ethnicity as an Hazara and his religion as a Shia. He feared harm from the Taliban following an assault by the Taliban in response to the applicant having informed the Afghan National Army that there were Taliban in an area through which he had driven. He also feared persecution as a failed asylum seeker returning from the west.
In view of the amended proposed grounds of appeal which were ultimately relied upon and which focused on only a limited part of the reasoning of the Tribunal, it is sufficient to sketch broadly the approach taken by the Tribunal.
Before examining the reasons of the Tribunal, it is necessary to relate the circumstances in which the applicant came to provide to the Tribunal certain medical evidence which figures in the argument on the application.
The applicant was legally represented before the Tribunal. At the hearing before the Tribunal on 15 February 2016, the applicant could not remember significant dates and gave evidence inconsistent with earlier statements made in the course of his visa application. He also became highly distressed and sobbed. Following the hearing, the applicant’s lawyers took steps to explain to the Tribunal the reasons for the applicant’s conduct in the hearing. The applicant’s solicitor prepared a letter outlining written submissions and enclosing a psychologist report, dated 21 February 2016. The letter explained why that medical assessment of the applicant was being sought. The explanation read as follows:
I received the hearing notice two weeks before Christmas and could only see the Applicant again earlier this year when I learned that he was taking anti-depressants. After the distress displayed at the hearing I referred him to see a psychologist who is trying to get an urgent appointment for him to see a psychiatrist. I accept his recall of dates is poor but this needs to also be taken into account along with his total lack of education, less emphasis in Afghanistan on dates, and his poor mental state.
The submission included lengthy extracts from materials about psychology to support the claim that memory problems can be associated with illiteracy.
The psychologist report was based on an assessment of the applicant after the hearing. The applicant told the psychologist about his assault by the Taliban which included a threat to cut his throat. He also said that he had been taking anti-depressants for about six months. Based on his account of the events, the psychologist provided her opinion as follows:
2.My assessment as to the type and cause of any current mental health condition if any
[The applicant] is presenting with symptoms such as depressed mood, high levels of anxiety, including palpitation, gastrointestinal disturbance, hyperventilation, agitation, rumination, flashbacks to the assault, poor sleep (about four hours per night), night sweats and disturbing nightmares, poor concentration and focus, major problems with his short term and long term memory and severe hyper vigilance.
In addition to these symptoms, his depressive symptoms are marked including major anhedonia, lack of enjoyment and pleasure, loss of interest in life, recurring thoughts of suicide over the past few months, fatigue and tiredness and issues with memory and concentration.
As such I am of the opinion that this man is suffering from Post Traumatic Stress Disorder and Major Depressive Disorder, Single Episode: Severe Type as per The Diagnostic and Statistical Manual of Mental Disorders (Fifth Edition).
Based on the information provided to me, it would appear that that the cause of his condition is the reported event when his throat was cut. It would appear that the death of his mother shortly after the incident, and the news that he was being looked for contributed to the severity of his symptoms. It would also appear that the uncertainty, over his future and the possible prospect of being returned to Afghanistan has exacerbated his symptoms more recently and led to the current psychological condition that he has, which I would say is of the sever range.
I believe that [the applicant] needs psychiatric and psychological help and as such I will be referring him to a psychiatrist through his local Mental Health Services this week for a review of his medication, which I feel is only very slightly helping and he would benefit from a full psychiatric assessment.
3My opinion if any on his inability to recall dates and periods of time and confusion with evidence
I can confirm that [the applicant] suffers from major problems with his short term and long term memory and specifically in relation to times and dates. This appears consistent with his psychological condition of Major Depressive Disorder, as disturbance of memory and concentration are a major symptom of this condition. He is also currently extremely anxious, fearful and agitated and as such his capacity to remember dates, and periods of time is affected by this emotional state. I can confirm that his inability to provide consistency in his evidence is caused by his psychological condition, which appears untreated sufficiently at the current time.
The Tribunal was also provided with a letter from the applicant’s employer who employed the applicant in his panel beating business. The employer recounted that the applicant was a very good worker but also said:
During the time I have known [the applicant] has lost weight and he cries a lot. He sobs. I know he went to the doctor and he takes pills. He cries easily about everything - about his family, about work, if he forgets something at work and I ask him because it was something really simple he starts to cry and it becomes sobbing.
Lastly, the letter enclosed a referral, dated 16 February 2016, prepared by the applicant’s general practitioner for the applicant to see a psychiatrist for a diagnostic assessment for anxiety and depression.
Against that background, the reasoning of the Tribunal is now considered. Early in its reasoning, the Tribunal came to the view that it should assess the applicant’s claim based in his home area in Afghanistan, namely, in Kabul. That conclusion followed the reasoning below:
29. Although the applicant was born in Parwan, I accept his evidence, as he has been consistent in this regard throughout the process, that he moved to Kabul at aged 8 years of age in 1983, lived there until 1988 (aged 13) with his family when he travelled to Iran. I accept when he returned from Iran in 2001 he lived in Kabul for ten years until 2011 and owned his own house in Kabul which he sold before he departed in 2011. He indicated his sister and mother-in-law lived in Kabul at that time but that they departed Kabul and Afghanistan approximately two years ago, after he departed. I accept his evidence at the hearing before me that when he returned to Afghanistan in 2001 he returned to live in Kabul as he had nothing left in Parwan.
30. When asked if he returned to Afghanistan which area he would return to; he said he did not want to go back. When I raised with him that it seemed his home area in Afghanistan appeared to be Kabul and not Parwan, particularly as he had lived and worked in Kabul from 2001 to 2011, had not lived in Parwan since he was 8 years of age and on account of his evidence that he had nothing left in Parwan, he said he did not want to go back and could not survive one minute in Kabul and then referred to his claims.
31. On the basis of the applicant's evidence that he has spent most of his life in Kabul when living in Afghanistan, it is from where he fled, he has not lived in Parwan for 28 years and he has no connection to Parwan except being born there, I find his home area in Afghanistan from where his claims should be assessed to be Kabul.
[Emphasis added.]
Shortly afterwards, the Tribunal considered whether the applicant was a credible witness. It analysed the evidence that the applicant had given and found a number of significant inconsistencies in his evidence. In particular, it did not accept the applicant’s account of the alleged assault by the Taliban to be credible and rejected his claim based on that event.
The Tribunal considered the claims based on the applicant being an Hazara and a Shia. It applied the finding that the claim should be assessed by reference to Kabul when assessing these claims. The Tribunal referred to reports of Hazaras being targeted on roads in provinces outside Kabul but continued:
The Tribunal is of the view from his evidence that there is not a reasonable or credible basis to consider he would need to undertake employment or receive education or visit family that would necessitate him undertaking journeys on roads outside Kabul. The evidence indicates his family live in Iran and while he operated a taxi driving to Parwan 1 or 2 days per week, he was able to work and earn a living in Kabul as a taxi driver in the six plus months before he departed Kabul. His evidence is he had nothing left in Parwan.
[Footnotes omitted.]
The Tribunal considered country information and generally accepted the comments of the Department of Foreign Affairs and Trade (DFAT) that “Kabul’s size and diversity means there are large communities of almost all ethnic, linguistic and religious groups in the city and that returnees are unlikely to be discriminated against or subjected to violence on account of their ethnicity or religion” ([80]) and “ethnic violence in Kabul is rare, and that Sunni-Shia violence was infrequent in Afghanistan” ([82]).
The Tribunal found that the applicant would not find difficulty earning a living in Kabul by reason of his religion or ethnicity.
The Tribunal then rejected the claims that the applicant would suffer serious harm as a result of being a returned asylum seeker.
Finally, the Tribunal rejected the complementary protection claim essentially for the same reasons as it had rejected the refugee claims.
As to the applicant’s mental condition, the Tribunal set out the substance of the applicant’s solicitor’s post-hearing submission and the psychologist’s report, including the context in which they came to be provided to the Tribunal, as follows:
44.At the hearing before me the applicant repeated his claims as to fearing return from the Taliban as to the events outlined above, and as a Hazara and Shia and failed asylum seeker. He added that the Taliban knew his home address. He said the Taliban came to his home address and asked a person next door and when his wife returned the man told his wife. He said his wife told him he could not live in that place anymore. He said the person informed him the Taliban were looking for him. He sobbed for long periods and kept stressing he did not want to return to Afghanistan. Concerns including discrepancies in evidence were raised with the applicant and where relevant these have been raised below.
45. After the hearing the applicant’s representative noted the following:
•The applicant’s recollection was poor at times including with regard to dates and periods of time.
•The applicant is illiterate and that there is some basis for illiteracy affecting memory and reference was made to information to support this.
•The applicant became highly distressed and sobbed at times. The representative indicated the applicant is currently taking anti-depressants and he has been referred to a psychologist.
•She accepts his recall of dates was poor but this needs to be considered with regard to his mental state, lack of education, less emphasis in Afghanistan on dates. Reference was made to a book on asylum seekers and the Tribunal process and how inconsistencies may arise in claims because of use of different dates and trauma suffered by applicants.
•She submits the applicant has been consistent as to the sequence of events with regard to his claimed persecutory events. She refers to studies on short term memory, effects of torture and depression on this.
•She refers to country information which she claims supports that his claim that giving information to the ANA as to the Taliban whereabouts could result in harm to the applicant.
•She provides information to support the claim that the applicant’s encounter with the Taliban 5/6 years ago would not be forgotten by them.
•She also refers to the DFAT report as to the treatment of Hazaras in Afghanistan.
46. The psychologist, referred to by the applicant’s representative, and seen once on 19 February 2015, after the hearing, is of the opinion the applicant is suffering post-traumatic stress disorder and a major depressive order. On this basis of his evidence she believes it is as a result of having his throat cut and the death of his mother shortly after. She is of the view he suffers short term and long term memory loss, specifically with dates, and is suffering anxiety. She refers to the employer comments that he is forgetful and is of the view he could be suffering from some cognitive difficulties.
The Tribunal then considered that evidence for the purposes for which it was submitted to the Tribunal, that is to say, in order to explain the inconsistencies in the applicant’s evidence about his assault by the Taliban, and to explain the applicant’s emotional reaction during the hearing. The Tribunal assessed the credibility of the applicant’s evidence as follows:
64.I have considered what has been written and stated by the psychologist, his treating Doctor and his employer. The evidence indicates that the applicant has been on anti-depressants in the past six months. It accepts he is currently depressed. The evidence indicates he was provided with medication by his treating Doctor six months prior to the hearing before me. His Doctor notes his attention/concentration, mood, sleep, motivation, anxiety symptoms are abnormal. However his treating Doctor indicates his perception, thinking, memory, insight, orientation, judgement and affect are normal. His psychologist, which the evidence indicates he has only seen on one occasion, after the hearing is of the view he is suffering from post-traumatic stress disorder and major depressive disorder. She claims this is as a result of the episode of having his throat cut and that the death of his mother and news he was being looked for by the Taliban affects the severity of his symptoms. She finds that the uncertainty over his future and possible prospect of being returned to Afghanistan exacerbates his symptoms. She claims the inability to provide consistency in evidence is caused by his psychological condition. She also believes he may suffer cognitive difficulties because of the reported difficulties with learning.
65. His employer, where he has worked for three years, as a panel beater, writes of the applicant's decline in recent years, his forgetfulness but that he is a 'good guy’, who opens up the garage, is on time and knows his trade.
66. Having had the opportunity to listen to the Department interview and read his claims I am satisfied that he was able to participate effectively and articulate his claims there. I note the applicant was not seeing a psychologist at the time of his application for a protection visa and did not see one until after the hearing before me. There is no comment in the report or by his Doctor about his mental state at that time or at the entry interview, or at the time of writing his statement or at the Department interview. This is only a recent claim. Further I note he was not on medication then or at the time of his entry interview, Department interview or when making his statement. The Tribunal is therefore of the view that his evidence at these times was not affected by mental illness or psychological issues or that he was forgetful.
67. The effect his current mental condition has on his ability to be consistent as to dates and provide consistent evidence is difficult to determine due to the inconsistent evidence as to the extent his memory is affected between his employer, psychologist and treating Doctor. His ability to maintain employment in Australia and save $40,000 and run his own business in Afghanistan undermines the psychologist's view of learning and long term cognitive impairment. While the applicant was emotional at the hearing before me, and the Tribunal accepts he is depressed and on medication, he was cogent and logical in his evidence and I find that he had a capacity to give evidence. He was able to provide detailed evidence as to where he had lived in the past and when he travelled to Iran and his background evidence and claims at the hearing before me. He became very agitated, however, at the hearing before me and sobbed when concerns were raised with him.
Then, in assessing the conditions in Kabul if the applicant as an Hazara and a Shia were to return, the Tribunal considered the applicant’s mental condition as follows:
The Tribunal has considered that the applicant has depression and has been seeing a GP and is on medication for depression, which he has been taking for the six months prior to the hearing. It notes he has seen a psychologist once after the hearing, and that report has been considered by the Tribunal. The information indicates that basic public health care in Kabul is free though medicines are not which excludes the poor for treatment for common illnesses. Information indicates that medical facilities in the public system whilst basic tend to be better in Kabul than in other areas of Afghanistan. However, the country information concerning Afghanistan is that it is an extremely poor country, and that large parts of Kabul are extremely poor. The Tribunal notes the evidence of the applicant at the hearing before me that he has saved $40,000A while working in Australia and been able to afford the medication.
Similarly, in the Tribunal’s separate consideration of the applicant’s claim to fear persecution as a failed asylum seeker and returnee from the west, the Tribunal took into account at [100] that the applicant suffers from depression.
The Tribunal then dealt with the complementary protection claims. It explained why it rejected those claims and expressly took into account the applicant’s depression and mental difficulties. That explanation was as follows:
109. With regard to his claims to fear being harmed because as is a Hazara Shi'a Muslim, and because of any associated political opinion that would be imputed to him for those factors, attributes or characteristics, in light of its earlier reasons with regard to there not being a real chance that this would happen to him, for any of the reasons claimed, the Tribunal considers there are no substantial grounds for believing there is a real risk he will suffer significant harm in that way. In making these findings, the Tribunal has considered whether any societal discrimination he would face for being a Shi'a Muslim or a Hazara Shi'a Muslim or a young Hazara male who has returned from a period of residence in Australia, could amount to significant harm. However, on the evidence before it, the Tribunal is not satisfied that there are substantial grounds to consider there is a real risk that such treatment, including if it is cumulatively experienced over an extended period of time period of time, would, in the applicants' [sic] particular circumstances and with his attributes, including because is [sic] illiterate and on medication for depression and has the mental difficulties he claims, cause him severe pain or suffering, or pain or suffering that could reasonably be regarded as 'cruel or inhuman treatment or punishment' which is inconsistent with Article 7 of the ICCPR; or cause him extreme humiliation that constitutes 'degrading treatment or punishment’ which is inconsistent with Article 7 of the ICCPR; or cause him 'severe pain or suffering' that could be characterised as 'torture'. The Tribunal does not accept that the reported types of societal discrimination would cause him, in his particular circumstances and with his attributes, to suffer harm, whether physical or mental pain or suffering or humiliation, which could constitute significant harm within the meaning of s.5(1) of the Act.
110. With regard to his claims to fear being harmed because he would be a returnee from the west, a wealthy returnee from the west, wealthy person, a failed asylum seeker or a failed Hazara asylum seeker, and any associated political opinion that would be imputed to him for those factors, attributes or characteristics, including because he is illiterate and has the mental health problems claimed, in light of its earlier reasons with regard to there not being a real chance that this would happen to him, for any of the reasons claimed, the Tribunal considers there are no substantial grounds for believing there is a real risk he will suffer significant harm in that way.
[Emphasis added.]
The applicant filed an application for review in the Federal Circuit Court. He relied on three grounds. Only grounds one and three need to be referred to for present purposes. Those grounds were:
1.The Tribunal made an error of law and asked the wrong question.
Particulars
a. In determining whether Australia owed protection obligations to the applicant, the Tribunal applied a legal test whereby his claims were assessed "against his home area" which it found to be Kabul: at [31].
b. The Tribunal found that Hazaras, like the applicant, faced risks in other parts of Afghanistan: at [75].
c. The Tribunal did not make any finding that those risks in other parts of Afghanistan were reduced, and that the applicant was unlikely to be harmed in the future as a result of those risks.
d. In light of that, it was insufficient for the Tribunal to determine the applicant's claims of harm on the basis of his ethnicity simply by finding that that harm would not occur to him in Kabul.
e. In the premises, the Tribunal failed to apply the correct test. See AFDl 5 v Minister for Immigration [2015] FCCA 3175.
…
3. Further and in the alternative to ground 1, in considering whether it was reasonable for the applicant to remain in Kabul, the Tribunal (a) failed to consider or properly consider an impediment raised by the applicant, namely whether he could obtain the psychiatric and/or psychological help he requires in Kabul; and (b) made a finding without evidence.
The Federal Circuit Court, at [56], described the argument on ground one relied on by counsel for the applicant as “that the Tribunal had misdirected itself and confined its task to a consideration of the applicant’s claims in Kabul”. The Federal Circuit Court held that, on a proper reading of the Tribunal reasons, the Tribunal had not so confined its enquiry.
The Federal Circuit Court, at [63], described the argument on ground three relied upon by counsel for the applicant as that the Tribunal, in considering whether it was reasonable for the applicant to re-establish his life in Kabul, failed to take into account his need for psychiatric help. The Federal Circuit Court held that the Tribunal had done so. At [67] the Federal Circuit Court also concluded that:
[T]here was no independent claim that the applicant feared that he could not obtain psychiatric help. It was not necessary for the Tribunal to make express findings in respect of a claim that was not advanced. Given the applicant's personal circumstances identified by the Tribunal, it was appropriate for the Tribunal, and relevant, to make a finding as to whether the applicant could remain in Kabul, and the reasonableness in that regard.
On 17 July 2017, the applicant filed this application for an extension of time within which to institute an appeal from the orders made by the Federal Circuit Court. The grounds of the proposed appeal were:
Ground 1
The Federal Circuit Court Judge erred, in concluding that the Tribunal did not commit jurisdictional error.
Particulars
(a) The Judge erred in concluding that the Tribunal applied the correct test when assessing my claims against the complimentary protection criterion.
Ground 2
The Federal Circuit Court Judge erred, in concluding at paragraph 64 of the FCC decision that as the Tribunal "expressly referred to the psychologist's report on more than one occasion in its reasons" the Tribunal did not fail to consider contents in the psychological report (i.e. psychologist's opinion)
Particulars
(b) Paragraph 63 of FCC decision refers to Ground 3 that was raised by the applicant's representatives in the FCC.
(c) A psychologist was of the view that the applicant needed psychiatric and psychological help (Paragraph 63 of FCC decision).
(d) Though the Tribunal may have had referred to (Paragraph 64 of FCC decision) on more than one occasion in its reasons to the psychologist's report, this does not suggest that the Tribunal genuinely considered the psychologist's opinion.
In the written submissions filed by the applicant it was contended on ground one that the error of law was that the Tribunal confined its consideration to the risk to the applicant in Kabul rather than the danger to him in Afghanistan as a whole.
In the written submissions the applicant abandoned ground two. The written submissions were signed by Mr Stephen Hodges, the solicitor for the applicant.
Mr Hodges appeared for the applicant at the hearing of the application. It became clear despite Mr Hodges’ tortured attempts to argue otherwise that the arguments he submitted on the application were not the arguments which had been put by other lawyers to the Federal Circuit Court, or by Mr Hodges in his written submissions. This mismatch created such confusion that Mr Hodges was required to file an amended proposed notice of appeal following the hearing in order to capture the arguments upon which the applicant ultimately sought to rely. The amended proposed grounds of appeal read as follows:
Ground 1
The Federal Circuit Court Judge erred in concluding that the Tribunal did not commit jurisdictional error
Particulars
(a) The Judge erred in concluding that the Tribunal applied the correct test when assessing my claims;
(b) In the Court below the applicant specifically raised a ground identified as "failed to apply the correct test. See AFD15 V Minister for Immigration [2015] FCCA 3175".
(c) This ground in turn raised the High Court decision in the matter of Minister for Immigration and Border Protection v SZSCA [2014] HCA 45.
(d) The SZSCA principles require that an evaluation of "reasonableness'', similar to relocation consideration, be undertaken.
(e) Neither the Tribunal nor the court below carried out this evaluation.
(f) In particular, although the Tribunal did consider the availability and expense of basic medical treatment, it did not evaluate the reasonableness of the return of the applicant who is accepted as suffering psychiatric issues, and who is considered by the psychologist to be suffering post traumatic stress, into the environment described in paragraph 101 of the Tribunal's decision.
(g) The circumstances described in the above said paragraph 101 are raised not to identify the risk of physical damage to the applicant but rather the psychiatric risk for the applicant who it is considered will be working as a driver.
Ground 2
The Judge erred in concluding that the Tribunal correctly assessed the applicant's claims against the complementary protection criteria in Section 36(2)(aa) of the Act
(a) Neither the Tribunal nor the court below considered the risk of significant harm to the applicant as a person suffering post traumatic stress of being returned to Kabul and the environment described in paragraph 101 of the Tribunal's decision. Similar to ground 1, this is not a consideration of the physical danger to the applicant.
In view of this unsatisfactory history of the matter we intend to deal with the grounds asserted in the amended proposed notice of appeal on the basis that they indicate the grounds on which the applicant now wishes to rely.
It is not in dispute between the parties that the Tribunal was bound to consider whether it was reasonable to expect the applicant to live in Kabul if he were returned to Afghanistan. It follows from Minister for Immigration and Border Protection v SZSCA [2014] HCA 45 (SZSCA) that the Tribunal had to assess the applicant’s personal circumstances in coming to a view about whether it was reasonable to expect him to live in Kabul.
In SZSCA the applicant had lived in Kabul but worked as a transport driver taking goods outside Kabul. The Tribunal found that he could work in Kabul as a jeweller as he had done before becoming a driver. The majority of the High Court (French CJ, Hayne, Kiefel and Keane JJ) identified the error in that approach as follows:
[31] In the present case it is not just the living conditions for the respondent in Kabul - and whether he would face a real chance of persecution if he stayed there - which should have been considered by the Tribunal. Rather, it was necessary for the Tribunal to consider the impact on the respondent of remaining in Kabul and not driving trucks on the roads he usually frequented in the course of his business. Addressing this question properly may have raised various issues for the Tribunal's consideration. At the least, the question clearly directs attention to the respondent's ability to earn an income from other sources and to his needs and those of his family.
[32] The Tribunal did not address this question. It did not address what was necessary to an inquiry whether it was reasonable to expect the respondent to remain in Kabul and not drive trucks outside it. It made one assumption – that the respondent would be able to work as a jewellery maker in Kabul, as he had formerly done in Jaghori. This assumption does not appear to have been put to the respondent for his comment. The respondent had raised concerns about his ability to earn a living if he were to return to Afghanistan, but the Tribunal did not explore this subject with him.
The majority explained why the Tribunal erred as follows:
25.The factum upon which the principle of relocation operates is that there is an area in the visa applicant's country of nationality where he or she may be safe from harm. In this matter it was found by the Tribunal that Kabul was such a place. By analogy with the internal relocation principle, given the existence of a place within his country of nationality where the respondent would have no well-founded fear of persecution, it could not be concluded that he is outside Afghanistan and unable to return to that country owing to a well-founded fear of persecution if it could reasonably be expected that he remain in Kabul and not travel outside it. As in SZATV, it is the question of what may reasonably be expected of the respondent which must be addressed.
The applicant’s argument on this application centres on [101] of the Tribunal decision, extracted below, dealing with the refugee claim:
In making these findings the Tribunal has also taken into account the independent information which indicates that, with the gradual withdrawal of international forces, there has been an increase in conflict and civilian casualties; however. Having carefully considered the evidence and information as a whole, the Tribunal considers that it would be far too speculative to find that the situation in Afghanistan will change in the reasonably foreseeable future such that there is a real chance the applicant will suffer harm for reasons he is a failed asylum seeker, returnee from the west or wealthy person or wealthy returnee from the West. Accordingly, the Tribunal does not accept that there is a real chance that the gradual withdrawal of the international forces would cause the applicant to suffer serious harm in Kabul for any of these reasons in the reasonably foreseeable future.
To a similar effect was [111] extracted below dealing with the complementary protection claim:
The Tribunal has considered the reports of regular insurgency attacks on Kabul and the rest of Afghanistan that have taken place and that bystanders and civilian casualties are often harmed in these attacks. It has considered that the independent information indicates that, with the gradual withdrawal of international forces, there has been an increase in conflict and civilian casualties. The Tribunal however notes that that the primary targets for insurgent attacks are government institutions, political figures, military, other security services and international organisations and that such attacks while not directed at them often cause significant casualties amongst civilian bystanders. The Tribunal has found above that the applicant is not a target of these attacks and is of the view that he may only be harmed in such attacks as a bystander as with the rest of the population in Afghanistan. The Tribunal is therefore of the view that there is not a real risk he will suffer significant harm because the real risk is one faced by the population of the country generally and is not faced by the applicant personally. Considering the country information and his individual circumstances, the Tribunal considers that the problems he faces upon return as a result of cross fire and insurgency violence do not constitute significant harm under s.36(2B)(c) of the Act as the real risk is one faced by the population of Afghanistan generally and is not faced by the applicant personally.
In the end, Mr Hodges argued that the Tribunal failed to address the question whether it was reasonable to expect the applicant to return to Kabul in circumstances where he is suffering from Post Traumatic Stress Disorder, PTSD, and where there are regular insurgency attacks in that city. The argument was not that the applicant might suffer physical harm, but that it was unreasonable to expect a person suffering PTSD to return to a situation of such violence.
In the course of the oral hearing, Mr Hodges also argued that the Tribunal failed to address the question whether it was reasonable to expect the applicant to return to Kabul in circumstances where because he suffers from PTSD it was not likely that he would be able to work or obtain employment. That articulation of the claim did not find its way into the amended proposed grounds of appeal. Ground 1(g) seems to accept that the applicant would be working as a driver in Kabul. We will, however, deal with the argument as if it were included in the proposed amended notice of appeal.
Mr Hodges accepted that neither of those two arguments was put to the Tribunal or to the Federal Circuit Court. The applicant was legally represented at each stage.
The psychologist’s report, upon which the arguments were based, was directed to the difficulty which the applicant exhibited in giving evidence in the Tribunal. The post-hearing written submissions of the applicant’s solicitor provided to the Tribunal relied on the report for that purpose. In those circumstances, it is debatable whether the availability to the applicant of medical facilities in Kabul to treat his condition was an issue which clearly arose from the psychologist’s report and, hence, it was arguable that the Tribunal was not bound to deal with the issue at all. However, the Tribunal, favourably to the applicant, treated the psychologist’s report as raising that issue as a matter relevant to the question whether it was reasonable to expect the applicant to return to Kabul. The Tribunal found that basic public health care was available in Kabul and was free. Medicines were not free, but the Tribunal found that the applicant was able to afford the cost of the medicines from his savings of $40,000 earned from working in Australia in the previous three years. The Tribunal therefore found that it was reasonable to expect the applicant to return to Kabul because treatment was available for his psychiatric problems.
The Tribunal did not address the two questions now raised. That is to say, the Tribunal did not address whether the danger of insurgent attacks in Kabul made it unreasonable to expect the applicant, as a sufferer from PTSD, to return there, and the Tribunal did not address whether it was unreasonable to expect the applicant to return to Kabul because, as a sufferer of PTSD, he would not be able to work there.
At the one end of the spectrum, the Tribunal is bound to deal with claims directly articulated by an applicant. But that is not the full extent of its duty. The Tribunal must also deal with claims not articulated by an applicant, but which clearly arise from the materials before it. At the other end of the spectrum, the Tribunal is not bound to deal with claims which are not articulated by an applicant and which do not clearly arise from the materials before it – NABE v Minister for Immigration and Multicultural and Indigenous Affairs No. 2 [2004] FCAFC 263 at [60] per Black CJ, French and Selway JJ.
The two claims now made were not articulated by the applicant at any stage prior to the present application. Further, the claims did not clearly arise from the materials before the Tribunal. The reference in the psychologist’s report to PTSD related to the explanation for the way the applicant gave his evidence. It did not provide an opinion about the linkage between conditions in Kabul and the PTSD. Similarly, the psychologist’s report did not suggest that the PTSD prevented the applicant from working. The evidence was that he was working in Australia. His employer said that he was a good worker. It follows that the Tribunal was not bound to address those claims. It made no error in not doing so.
It follows that the amended proposed grounds of appeal do not have a reasonable chance of success. In those circumstances, it would be futile to extend the time within which to institute an appeal. The application is dismissed.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of their Honourable Justices North, Farrell and Davies. Associate:
Dated: 27 March 2018
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