BKV20 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 511
•11 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BKV20 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 511
File number(s): SYG 806 of 2020 Judgment of: JUDGE SKAROS Date of judgment: 11 April 2025 Catchwords: MIGRATION – Judicial Review – Administrative Appeals Tribunal – protection visa – India - unreasonableness - illogicality - irrationality – whether conclusions as to country information open to the Tribunal - real and meaningful hearing - failure to consider a claim – application dismissed Legislation: Migration Act 1958 (Cth) ss 5, 36, 425 Cases cited: BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94; (2020) 277 FCR 420
BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; (2018) 263 FCR 292
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 1074
GLD18 v Minister for Home Affairs [2020] FCAFC 2
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136
Islam v Cash [2015] FCA 815
Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
Division: Division 2 General Federal Law Number of paragraphs: 106 Date of hearing: 4 March 2024 Place: Parramatta Counsel for the Applicant: Ms T Baw Solicitor for the Applicant: Agape Henry Crux Counsel for the First Respondent: Mr J Fyfe, Minter Ellison Lawyers Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 806 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BKV20
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SKAROS
DATE OF ORDER:
11 APRIL 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to Minister for Immigration and Multicultural Affairs.
2.The application filed on 1 April 2020, as amended, is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), 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 SKAROS
INTRODUCTION
By application filed on 1 April 2020, and amended on 10 December 2024, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal[1] (the Tribunal) dated 26 February 2020. The Tribunal affirmed a decision of a delegate (the delegate) of the First Respondent (the Minister) in refusing to grant the applicant a Protection (Class XA) (subclass 866) visa (the protection visa) under s 65 of the Migration Act 1958 (the Act).
[1] The Court notes that the Administrative Appeals Tribunal has been superseded by the Administrative Review Tribunal. Item 10, Part 2 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 provides that for any proceedings that were pending in any court or tribunal immediately before the transition time and to which the Administrative Appeals Tribunal was a party, the Administrative Review Tribunal is, after the transition time, substituted for the Tribunal as a party to the proceedings. Therefore, in these Reasons, reference to the Tribunal is a reference to the Administrative Review Tribunal.
BACKGROUD
The applicant is a male citizen of India. He arrived in Australia on 27 January 2009 as the holder of a student visa. He subsequently applied for a skilled graduate visa which was refused by a delegate of the Minister. He sought review of that decision. On 13 August 2013 the Tribunal affirmed the decision not to grant the applicant the skilled graduate visa. The applicant lodged a partner visa on 26 August 2013. That application was refused by a delegate of the Minister on 24 July 2015. The applicant sought review of that decision, but on 19 January 2016 the Tribunal affirmed the decision to refuse to grant the partner visa. On 17 February 2016, the applicant sought ministerial intervention under s 351 of the Act. On 3 March 2016 that request was denied.
On 14 March 2016, the applicant applied for the protection visa. He claimed, in summary, that he would suffer serious or significant harm in India on account of his mental health. On 11 August 2016, the delegate refused to grant the visa on the basis that there was insufficient evidence that the applicant would suffer harm due to his mental health.
On 29 August 2016, the applicant applied to the Tribunal for review of that decision.
On 22 November 2019, the applicant was invited to appear before the Tribunal on 12 February 2020.
On 5 February 2020, the applicant’s representative provided to the Tribunal two psychiatrist reports, dated 10 December 2018 and 14 December 2019, containing details about the applicant’s mental health. The Tribunal was also provided with a document containing Google search results on the lack of psychiatric or mental health facilities and mental health care professionals in India: Court Book (CB) 195– 210.
On 12 February 2020, the applicant appeared before the Tribunal to give evidence and present arguments. His representative also attended the hearing.
On 21 February 2020, the applicant’s representative provided the Tribunal with post-hearing submissions.
On 26 February 2020, the Tribunal affirmed the delegate’s decision.
THE TRIBUNAL’S DECISION
The issue before the Tribunal was whether the applicant was a person in respect of whom Australia had protection obligations under the refugee criterion or the complementary protection criterion.
The Tribunal recorded that the applicant claimed he would be persecuted if he returned to India due to his mental health. The Tribunal set out the background information about the applicant, including his immigration, education and employment history. The Tribunal indicated that it had before it a copy of the Department’s file.
In summarising the applicant’s claims, the Tribunal recorded the following:
(a)if he returns to India he would be estranged from his family and unable to access adequate mental health care causing his mental health to deteriorate;
(b)there remained a social stigma in India regarding mental health illness and his family would not assist him;
(c)the authorities could not assist him and mental health care in India was inadequate;
(d)due to his anxiety and depression, he would face discrimination and would feel even more depressed in India due to the way he would be treated;
(e)he would not be able to find work in India, cannot access medical care and would be unable to pay for his medication; and
(f)people with mental disorders are cut off from society, put on the street by their families and he has witnessed this in India.
The Tribunal accepted that the applicant was a citizen of India and assessed his claims for protection and the evidence before it on this basis. In determining whether the applicant had a well-founded fear of persecution, the Tribunal made the following findings:
(a)it accepted that the applicant had been diagnosed with a depressive illness and anxiety disorder, and considered this was due to the applicant’s own sustained (and ultimately unsuccessful) efforts to remain in Australia and his previously unsuccessful visa applications;
(b)it did not accept the applicant had been rejected by his family for marrying a non-Hindu woman in Australia, it noted that the marriage ended in divorce in 2017, and that he had maintained communication with his family;
(c)it noted the doctor’s report that he had seen the applicant five times in the past year and that the applicant had been prescribed medication, but considered there was no evidence that the applicant; required the assistance of an ‘acute care team’; had been admitted to hospital; or needed any other intensive acute treatment for any mental illness;
(d)it was not satisfied the applicant suffered from a severe mental illness;
(e)it noted that the applicant had been employed with the same company since 2011 and had secured a promotion, and did not accept that someone with a severe mental illness would be able to hold down a responsible position;
(f)it did not accept that if the applicant returned to India he would be in an ‘alien and socially rejecting environment’;
(g)it considered that the applicant came from an educated family who had supported him and his siblings to study, and was satisfied that they would support the applicant if he were to return to India. It did not accept that this family would reject or alienate him; and
(h)it considered that if the applicant returned to India, he would have an established network and community to support him and would be able to secure the services of a doctor and medication if this was needed, and would, with the skills he had acquired in Australia, be able to secure employment.
In considering the evidence before it, the Tribunal found that the applicant exaggerated the extent of any mental illness symptoms. It was not satisfied that the applicant suffered from a severe life-threatening mental illness or that he would not be provided with medical care and services in India for any anxiety disorder or depression. The Tribunal was not satisfied the applicant genuinely feared serious harm if he returned to India in the foreseeable future and found that the applicant was not a person who had a well-founded fear of persecution. The Tribunal was also not satisfied there was a real chance of persecution for any of the reasons set out in the Act relating to all areas of India. The Tribunal concluded that the applicant was not a person in respect of whom Australia had protection obligations under s 36(2)(a) of the Act.
In considering whether the applicant satisfied the complementary criterion, the Tribunal, relying on much of its earlier findings, considered that the applicant would be able to access medical care or treatment in India if required. The Tribunal also referred to GLD18 v Minister for Home Affairs [2020] FCAFC 2, wherein Allsop CJ, Mortimer and Snaden JJ confirmed that the definition of ‘significant harm’ did not encompass self-harm or harm arising from mental illness. The Tribunal concluded that the applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
APPLICATION TO THIS COURT
An initiating application was filed by the applicant on 1 April 2020. By way of amended application filed on 10 December 2024, the applicant advanced two grounds of review, which have been further considered below.
The applicant also filed an affidavit of his legal representative, on 1 April 2020, which merely annexed the Tribunal decision. As this is contained in the Court Book, it was not necessary to admit the affidavit into evidence.
On 28 November 2024, the Court ordered by consent that the applicant file and serve any amended application and any additional evidence, no later than two weeks from the date of the orders. It also ordered that the applicant and first respondent file and serve written submissions at least 28 and 14 days, respectively, before the hearing.
The matter was initially listed for hearing on 28 November 2024 and was relisted to 3 February 2025. On 19 December 2024, the Court ordered by consent that the final hearing be adjourned to 4 March 2025. The orders also required the applicant pay the first respondent’s costs thrown away in relation to preparations for the listing on 28 November 2024 fixed in the amount of $1,650.
On 10 December 2024, the applicant filed an amended application. On 12 December 2024, the applicant also filed the affidavit of Renee Quinn (a ‘Transcription Manager’), which annexed a transcript of the Tribunal hearing held on 12 February 2020 (the Quinn Affidavit). These documents were filed pursuant to the orders made on 28 November 2024.
On 4 February 2025, the applicant filed an outline of submissions. On 18 February 2025, the Minister filed their outline of submissions.
On 4 March 2025, the hearing was held at the Parramatta Registry of the Court. At the hearing, Ms T Baw of Counsel appeared for the applicant. Mr Fyfe appeared on behalf of the Minister.
The Minister sought to rely on material in the Court Book. Accordingly, the Court Book, filed on 11 June 2020, was tendered into evidence and marked Exhibit CB. The Quinn Affidavit was read and taken as evidence in the proceedings.
Oral submissions were made by the parties which developed their written submissions.
GROUNDS OF REVIEW
The amended application advances two grounds of review. They are (without alteration):
Ground 1
The Tribunal was legally unreasonable, irrational or illogical in making material findings. Further and in the alternative, the Tribunal failed to provide the applicant an invitation to a real and meaningful hearing pursuant to s 425 of the Migration Act 1958 (Cth).
Particulars:
a) The Tribunal found at CB 281[62]: “[t]he Tribunal has read the information provided by the applicant and country information which indicates there are problems with the delivery of services however that relates to persons with severe psychotic and mental health issues that need hospital admission and intensive interaction” and at CB 282[70]: “[t]he independent country information provided points to conditions in hospitals in India being inadequate and services to persons suffering from severe mental illness being sub-standard” (altogether the Findings).
b) The Tribunal found at CB 281[65] that the applicant had not been admitted to hospital or needed any other intensive acute treatment for any mental illness. Then concluded at CB 282[74] that it was not satisfied the applicant suffered from a “severe life-threatening mental illness”, or that he would not be provided with medical care and services for any anxiety disorder or depression.
c) The Findings were without any probative foundation and/or misconstrued the country information.
d) The applicant did not provide this information. The applicant was not made aware of any other material or country information which could be the basis for the Findings.
e) The country information referred to by the Tribunal in its decision (CB 277[47]-178[48]) did not state that it is only sufferers of severe psychotic and mental health issues that need hospital admission and intensive interaction that faced inadequate health services in India. Contrary to the Findings, the country information referred to stated, amongst other things, that due to a lack of funding, only 10% of Indians with mental health problems receive evidence-based treatments and there was a lack of access to appropriate services (not limited to hospitals) including community-based support.
f) In the circumstances, it was legally unreasonable, illogical or irrational for the Tribunal to make the Findings and apply them to the applicant.
g) The Finding were not raised with the applicant during the hearing. They were required to be raised with the applicants at the Tribunal hearing.
h) The failure of the Tribunal to do so resulted in the applicant not being offered a meaningful hearing in which he was apprised of issues which might be adverse to him and not provided with a real chance to present his case.
Ground 2
The Tribunal failed to consider a claim, or an integer of a claim, raised by the applicant.
Particulars:
a) At CB 276[37], the Tribunal acknowledged that the applicant claimed: “he is part of a particular social group due to his depression and anxiety. He claims that in India he would face discrimination and that in India he would feel even more depressed due to the way he would be treated.”
b) At CB 276[42], the Tribunal acknowledged that the applicant claimed: “he has [a] chronic mental illness and will be unable to get a job in India and unable to get the money to pay for his medication”.
c) The applicant also claimed that serious harm may arise to sufferer of mental illness in India, due to the societal discrimination.
d) However, the Tribunal failed to consider those claims, or integers of a claim. There was an absence of any evaluation and findings in respect of those matters.
e) Furthermore, the Tribunal failed to consider the claims cumulatively.
Ground one is pleaded on an alternative basis. The first basis, which is referred to as ground 1A, is that the Tribunal’s assessment of the country information as to the availability of the mental health services, and its finding that the applicant could access mental health services and medication, in India, was legally unreasonable, irrational, illogical and was not based on the available evidence before it. The second (and alternative) basis, referred to as ground 1B, is that the Tribunal failed to provide the applicant a real and meaningful hearing (as required by s 425 of the Act) because it did not inform the applicant of its assessment of the country information as to the availability of mental health services in India thereby depriving him of the opportunity to comment on or reply to it.
Ground 1A
By ground 1A, the applicant contends that the Tribunal, in making its material findings of facts (which were not based on probative evidence), had engaged in illogical or irrational reasoning, thereby rendering the decision legally unreasonable. The applicant relied upon BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94 (BHL19) at [127], [138], [143] – [146], and the cases cited therein, which set out the relevant (overlapping) principles of illogicality, and legal unreasonableness.
Th applicants also relied on the observations of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS) at [135] that:
… A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
The applicant takes issue with the statements made by the Tribunal at [62] and [70] of its reasons. Although the applicant only quotes parts of those paragraphs in their submission (italicised), it is appropriate to set out the text relevant to the Tribunal’s assessment of the country information in those paragraphs:
[62] The Tribunal has read the information provided by the applicant and country information which indicates there are problems with the delivery of services however that relates to persons with severe psychotic and mental health issues that need hospital admission and intensive interaction. It also relates to the poor and disadvantaged.
…
[70] The independent country information provided points to conditions in hospitals in India being inadequate and services to persons suffering from severe mental illness being sub-standard. The country information also indicates that the Indian authorities are moving to improve the situation for persons suffering from a mental illness. The impact of the lack of services is on the poor and disadvantaged.
It was submitted that the Tribunal’s assessment of the country information was contrary to what was before it. The applicant submitted that the Tribunal had concluded that there were three categories of people who would struggle to access mental health services in India, being those with severe psychotic and mental issues, those that needed hospital admission and those that are poor and disadvantaged. The applicant contended that this distinction was not open on the evidence before the Tribunal, was a conclusion arrived at irrationally and illogically and one that was unsupported by any probative evidence. The applicant contended that the available country information indicated that it was not only sufferers of a severe mental illness and those that needed intensive treatment or admission to hospital that were inadequately serviced in India.
The applicant referred to submissions which had been made to the Department by the applicant’s representative which summarised country information that had been relied upon by the applicant in support of his claims for protection. It was submitted that the information indicated a lack of access to mental health services for the overwhelming majority of people with mental illness in India, not only those suffering from a severe mental illness: CB 64-65. The applicant further submitted to the Court that the country information relied on by the Tribunal in its decision (being the DFAT report on India 2018 and the 2017 Country of Origin Information Services Section report (COISS Report)) (and the country information provided by the applicant) did not distinguish between a person suffering from a severe or moderate mental illness, or between those that needed/did not need hospital admission, or between the poor and disadvantaged and the well-off but to the inaccessibility and inadequacies of services which were felt across the board.
The second integer of ground 1A relates to findings that the Tribunal made in [72] and [74] of its decision:
[72] The Tribunal is satisfied that if the applicant returns to India he would have an established network and community to support him and he would be able to secure the services of a doctor and medication if this was needed. The Tribunal is satisfied that, with the skills he has acquired in Australia, the applicant would be able to secure employment.
…
[74] Overall the Tribunal is not satisfied that the applicant suffers from a severe life threatening mental illness or that he would not be provided with medical care and services for any anxiety disorder or depression. Accordingly it is not satisfied the applicant genuinely fears serious harm if he returns to India in the foreseeable future. It is not satisfied the applicant is a person who has a well-founded fear of persecution. Nor is it satisfied there is a real chance of persecution for any of the reasons set out in the Act relating to all areas of India.
[emphasis added]
The applicant submitted that the Tribunal’s conclusions imply that since the applicant’s mental illness was not severe and life-threatening and because he had the support of his family and community, he would be able to access mental health treatment and medication in India. It was contended that the conclusions in [72] and [74] had no logical or rational connection to the evidence and had no probative foundation when considering the country information available to the Tribunal. It was submitted that the country information did not indicate that most persons suffering moderate or mild mental illness could access adequate treatment. It was also contended that the country information from a variety of sources consistently stated that more than 80% of those who need mental health care cannot access treatment. It was submitted that with only 3 psychiatrists available per 1 million people and 0.47 psychologists per 1 million people, there was a real lack of resources for all levels of mental illness, not just sufferers of a severe mental illness or those needing admission to hospital.
It was contended that the Tribunal failed to reconcile its conclusion to the country information and that it had erred by making an illusory distinction between patients that cannot access mental health care in India because they suffered a severe form of mental illness, which was unsupported by any probative evidence.
At the oral hearing, this ground developed somewhat with the applicant relying on Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (Plaintiff M1/2021), wherein Kiefel CJ, Keane, Gordon and Steward JJ stated at [24]:
Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them.
The applicant also relied upon Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105 at [65] , Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [34] and Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 at [50] in contending that the Tribunal, whilst conscious of the country information before it regarding access to mental health services in India, had failed to ‘deal with’ it and that its reasons did not disclose any process of weighing the evidence or preferring some over another.
The applicant also relied upon Islam v Cash [2015] FCA 815 at [14] and BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 at [35] to contend that the Tribunal was required to do more than merely mention (or pay ‘lip service’) to the country information before it, and that it had to analyse (or engage with) the information and explain how it came to the conclusion that the applicant would be able to secure the services of a doctor and medication in light of the statistics in the country information which indicated that fewer than half who required assistance received it and only 20% of people got treatment of any kind. It was contended that the Tribunal failed to explain why the applicant did not fall within the group of people who cannot access treatment. It was contended that it was not open for the Tribunal to find that the applicant did not fall within the categories of people that the Tribunal indicated could access treatment, particularly considering its lack of reasoning in this regard, and the Tribunal’s conclusion at [74] that the applicant could access mental health support does not logically follow from its finding that he would have the support of his family when considered in the context of the country information.
The Minister in oral submissions queried the purpose of the applicant’s reliance on authorities relevant to a ground of ‘failure to consider’ (being those referred to above from Plaintiff M1/2021 and thereafter) noting that the ground advanced was one of unreasonableness.
As I understand it, the applicant’s contention, (as advanced in the written submissions and developed in oral submissions), is that the Tribunal’s decision was legally unreasonable in circumstances where it had failed to evaluate (or engage with) the country information before it when making its material findings of fact (which they contend were made without probative evidence and were illogical or irrational) and concluding that the applicant would not suffer the harm feared. Given how ground 1A was argued, I do not consider it misplaced or improper for the applicant to rely on the authorities of Plaintiff M1/2021 and those cited in paragraphs [36] and [37] above.
The Minister’s position is that the Tribunal’s reasons and conclusions were plainly open to it on the evidence and that it was reasonable for the Tribunal, having regard to its statutory task of assessing whether the applicant faced a real chance of serious harm in all areas of India, to approach its analysis of the country information and the applicant’s evidence in the way it did.
Consideration of Ground 1A
In considering this ground, the Court has had regard to the relevant legal principles in the relevant authorities, including those relied upon by the applicant in his submissions.
It is well established that a decision may be affected by jurisdictional error on the basis of illogicality or irrationality, where the decision to which the decision maker came was simply not open on the evidence or if there was no logical connection between the evidence and the inferences or conclusions drawn: SZMDS at [130] - [135]. Also, as observed in BHL19 at [127], it is well accepted that, in certain circumstances, a decision maker may commit a jurisdictional error if they make material findings of fact in the absence of probative evidence. It is also common ground that a decision maker must engage in an active intellectual process with the relevant matters or criteria: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 (Carrascalao) at [35] - [46]. However, a finding that a decision maker has not engaged in an active intellectual process will not lightly be made: Carrascalao at [48]. The requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness: Plaintiff M1/2021 at [25].
The assessment of whether a material finding of fact or conclusion lacked a probative basis, was illogical and/or otherwise unreasonable is invariably fact dependent.
For the applicant to succeed on the ground of unreasonableness and/or irrationality, he must demonstrate that the Tribunal’s decision was one which no rational or logical decision maker could have arrived at on the same evidence: SZMDS at [130].
As articulated in SZMDS at [133], the relevant question is ‘whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it’. In other words, whether ‘on the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal’: SZMDS at [135]. If a logical or rational decision maker could have done so, the relevant findings will not be illogical or irrational, even if one may emphatically disagree with the Tribunal’s reasoning: SZMDS at [124], [129], [131] and [135].
In the present case, the Tribunal expressly stated at [10] that it had taken into account, as part of its mandatory considerations, the country information assessment prepared by DFAT to the extent it was relevant to the decision under review. It also noted at [20] that it had received country information from the applicant, which had been obtained from a Google search on ‘India mental health lack of hospitals and psychiatrists and mental health workers.’ At [47] and [48], the Tribunal set out the country information from the DFAT Report on the state of the health system/access to mental health care in India and from a 2017 COISS Report on mental health services in India. The Tribunal also said at [62] that it had regard to the country information provided by the applicant and the country information before it.
While the Tribunal could have expressed its assessment of the country information at [62] more clearly and comprehensively, a fair reading of the Tribunal’s reasons do not disclose that it had found (as contended by the applicant) that only those with severe psychotic conditions/mental health issues, those who required hospital admission or those who are poor and disadvantaged could not access mental health services.
The country information before the Tribunal, as set out in its decision and referred to in its reasons, indicated that the health system in India faced challenges and that access to mental health care was difficult. The country information also indicated that access to mental health care was not uniform across the country, with availability being limited in rural areas compared with large cities or towns. It also recorded that of individuals with mental disabilities in India, 25% were homeless and many in rural areas did not have access to modern mental facilities. The country information also recorded the limited number of government-run mental health hospitals in India which impacted those with mental health disorders that required hospitalisation.
At [70], the Tribunal stated that ‘the independent country information before it points to conditions in hospitals in India being inadequate and services to persons suffering from severe mental illness being sub-standard.’ It also referred to country information which indicated that ‘the Indian authorities are moving to improve the situation for persons suffering from a mental illness.’ It observed at [70] that the impact of the lack of services was on those who were poor or disadvantaged. When read with its considerations at [62], which refers to the impact on the delivery of services to those with psychiatric conditions that required hospitalisation, it suggests that the Tribunal had engaged with the country information which indicated the challenges faced by persons suffering from a mental health condition in India, but considered, having regard to that information, that those most impacted were persons with severe conditions, those whose conditions required them to be hospitalised and/or the poor and disadvantaged. The Tribunal, having considered the particular circumstances of the applicant, (which were discussed in other parts of its reasons), was not satisfied that he came within the classes of persons who would be most adversely impacted by the challenges of access to mental health care in India: see [65] and [70].
Although the Tribunal did not discuss or address the specific details or statistics contained in the country information regarding access to mental health services in India, its concise summary (specifically, that there were problems with the delivery of mental health services in India, and that particular classes of persons were more adversely impacted) accurately reflected, at a high level, the main aspects reported upon in the country information. The brevity with which the Tribunal’s evaluated the country information does not, of itself, establish jurisdictional error.
A fair reading of the Tribunal’s reasons (in their entirety), when considered together with the discussions it had with the applicant at the hearing about the country information before it; (see Quinn Affidavit at Q68, Q69 and Q130), discloses that the Tribunal appreciated that there were issues with the delivery of mental health services in India, but considered on the country information before it that the Indian government was ‘putting resources into it’ and that there were ‘doctors available who could prescribe medication’: Quinn Affidavit at Q130.
Whilst the country information before the Tribunal did not specify who (or the classes of persons) in India that would be able to access mental health services, I agree with the Minister’s submission that it was not illogical or unreasonable for the Tribunal to conclude, based on the applicant’s own evidence of his circumstances and the country information, that the applicant would come within the group of individuals who would have access to the level of health care he required. For these reasons, I do not accept the applicant’s contention that the conclusions made by the Tribunal in [72] and [74] lacked probative foundation or were otherwise illogical or irrational.
In respect of the applicant’s circumstances, the Tribunal found, based on the medical reports and the applicant’s own evidence, that the applicant suffered a depressive illness and anxiety disorder for which he was seeing a doctor every month and a half and for which he was prescribed medication: [56], [63]. It noted there was no evidence that the applicant had been admitted to a hospital or needed intensive acute treatment for his mental illness: [65]. It considered that the applicant came from an educated family who had supported him and his siblings to study and that they would continue to support him upon his return: [66], [70]. Based on his continuous employment and promotion to a manager’s position, it did not accept that he had a severe mental illness: [69]. It considered that if he returned to India he would have support, could secure a doctor and medication if required, and that the skills he acquired in Australia would assist him to secure employment in India: [71], [72]. Whilst the Tribunal’s reasoning could have included more detail for the benefit of the applicant, I am not persuaded by the contention that the Tribunal’s conclusions at [72] and [74] were made without active intellectual engagement or otherwise without considering, or disclosing its consideration of, the country information and the applicant’s circumstances. This is not a case where the Court has been left to guess how the Tribunal arrived at the conclusions it did.
The applicant maintained at the hearing before me that there was no probative evidence (or evaluation of the country information) to support the Tribunal’s findings that he would be able to have access to a doctor and medication if he returned to India, and that it did not logically follow that because he had employment in Australia that he would be able to secure employment in India. I am not persuaded by these arguments. It was not illogical or unreasonable for the Tribunal to find on the evidence given by the applicant (that he had been continuously employed since 2011 and had been promoted to a house manager position) that his experience would enable him to secure employment in India - indeed it accords with ordinary human experience that previous employment history would assist with future employment prospects, even if that experience was gained in another country. In other words, that finding was open to the Tribunal on the evidence before it as to the applicant’s employment history.
As to the finding about the applicant’s ability to secure the services of a doctor and medication, this also appears open on the evidence set out by the Tribunal in its decision. As the Minister submitted, the country information (at [48], CB 279) referenced sources which indicated, respectively, that 20% and fewer than 50% of people had access to mental health treatment or support services and that the Tribunal, at least implicitly, considered that the applicant was more likely to fit into this class of people than those who were poor or disadvantaged, those who required acute in-patient care or those with a severe condition. As to access to medication, while the country information ([48], CB 279) indicated that medication to treat common psychiatric disorders is not always available, this appears to specifically relate to government hospitals.
As noted above, while the Tribunal could have provided more comprehensive reasons, it can be fairly inferred from the whole of its reasoning that it did, in fact, consider the country information before it, in the context of the applicant’s particular circumstances, when determining whether the harm feared by him upon return to India (on account of his mental health condition) was well founded.
Having considered all the evidence, the Tribunal went on to conclude at [74], that it was not satisfied that the applicant suffered from a life-threatening mental illness. It was also not satisfied that the applicant would not be provided with medical care and services for his anxiety and depression. It was accordingly not satisfied that the applicant would experience serious harm if he returned to India in the foreseeable future and ultimately concluded that the applicant did not have a well-founded fear of persecution. The Tribunal’s conclusions that the applicant would be able to access treatment and medication, when viewed fairly in the context of its assessment of the applicant’s circumstances alongside its assessment of the country information, were findings open to it.
I am satisfied that the Tribunal understood and evaluated the applicant’s claims regarding his fear of harm in India because of his mental health condition. I am also satisfied that the Tribunal engaged with the evidence before it (specifically, the country information) and that it had considered that information (to the extent it was relevant) in the context of the applicant’s particular circumstances. I accept the Minister’s submission that the Tribunal’s assessment of the country information and the findings it made in that regard were open to it on the country information before it and that its reasoning did not disclose any misunderstanding or misinterpretation of that information.
For these reasons, ground 1A does not establish jurisdictional error.
Ground 1B
As an alternative to ground 1A, the applicant contends that the Tribunal failed to provide the applicant with a real and meaningful hearing as required by s 425 of the Act. It was submitted that by failing to bring to the attention of the applicant that the problems related with the delivery of services in India related to persons with severe psychotic/mental health issues, those who needed hospital admission and intensive interaction and those who were poor and disadvantaged; whereas sufferers of a moderate or mild mental illness such as an anxiety disorder or depression (like the applicant) would have access to services in India, the applicant was deprived of an opportunity to respond and comment on this assessment and thereby deprived of a real and meaningful hearing
It was contended that the Tribunal’s obligation under s 425 required it to raise that issue with the applicant at the hearing, in circumstances where:
(a)it was unknown to the applicant that the Tribunal had made that distinction, and neither the country information provided by the applicant or that relied upon by the Tribunal made such a distinction;
(b)the Tribunal relied on the distinction to support its conclusion at [74] (CB 282), without affording the applicant with an opportunity to comment and reply to that finding during the hearing. The distinction was raised for the first time in the Tribunal’s decision; and
(c)the country information provided by the applicant and relied upon by the Tribunal did not identify any distinction and indeed corroborated the applicant’s claims that he would unlikely be able to access the professional care and medication that is necessary to treat his disorder in India. The Tribunal failed to engage with (and reconcile) how it reached the distinction it made.
The applicant contended that the invitation to appear before the Tribunal to give evidence and present arguments was not meaningful because the Tribunal’s distinction was not disclosed to the applicant during the hearing and he was not apprised of issues which might have been adverse to him: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 (SZBEL) and Minister for Immigration and Citizenship v Li [2013] HCA 18 at [60].
The Minister’s position is that the Tribunal did not breach its obligation under s 425 and that the ‘issue’ in the review was whether the applicant would face a real risk of serious harm due to inadequate access to mental health care if he returned to India and not whether there was a distinction between the types of persons who could/could not access mental health care in India. It was submitted that the distinction, whether or not it should be made, was incidental to the Tribunal's evaluation of the evidence before it on the issue of the availability of mental health care to the applicant.
The Minister contended that the Tribunal was not required to provide a running commentary on its analysis of the country information and that, in any event, it provided the applicant with a meaningful opportunity to present evidence and arguments on the dispositive issue in the review.
Consideration of Ground 1B
The Tribunal’s procedural fairness obligation under s 425(1) of the Act required it to invite the applicant to appear before it to give evidence and present arguments in relation to the issues arising in the review.
The applicant relied upon SZBEL, wherein the High Court found that the applicant in that case was not afforded procedural fairness as the Tribunal had failed to give him a sufficient opportunity to give evidence or make submissions at the hearing about what turned out to be two of the three determinative issues arising in relation to the decision under review. In its considerations, the High Court referred to the decision of the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 1074, where the Full Court said at [30]
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.
(emphasis added)
The High Court in SZBEL went on to state at [33] – [34]:
The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited “to give evidence and present arguments relating to the issues arising in relation to the decision under review” (s 425(1) (emphasis added)). The reference to “the issues arising in relation to the decision under review” is important.
Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language “arising in relation to the decision under review” is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise (s 415) all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister’s delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons.The delegate in this case refused to grant the applicant a protection visa because they were not satisfied that harm feared by the applicant was for a convention reason as required by s 5J(1)(a) of the Act. The delegate was also not satisfied that any harm the applicant may suffer because of the shortcomings in India’s mental health care system would not be intentionally inflicted upon him to cause him pain, suffering, inhumane treatment or humiliation as defined in s 36(2A) and s 5(1) of the Act.
On review, the issue for the Tribunal was whether the applicant had a well-founded fear of persecution (real chance he would suffer serious harm) upon return to India or whether there was a real risk the applicant would suffer significant harm if he were removed from Australia to India.
Having regard to the authorities, and as submitted by the Minister, the Tribunal was not obliged to expose its mental processes or provisional views to comment before making its decision. However, it did have an obligation to inform the applicant of material/information before it (upon which it may draw a conclusion) that it considered adverse to his claims.
As discussed above, the material/information that was before the Tribunal related to country information which, as assessed by the Tribunal, suggested that the applicant would be able to access mental health services in India. That was the ‘adverse conclusion’ which may not have been ‘obviously open’ on the material, which I am satisfied was discussed with the applicant at the hearing.
As found above, the Tribunal’s reasons (read fairly as a whole) do not disclose that the Tribunal considered that problems with the delivery of mental health services in India only affected persons with severe/psychotic mental health issues that required hospitalisation and/or the poor and disadvantaged and that those with a mild/moderate form of mental illness would be able to access those services. As considered, a fair reading of the Tribunal’s reasons discloses that it recognised there were issues with the delivery of mental health services in India, that certain classes of people were more impacted by these issues, and that the applicant (given his particular circumstances) would be able to access mental health care. There was no obligation on the Tribunal to disclose to the applicant its reasoning or analysis of the evidence before it. It was sufficient for the Tribunal to put the applicant on notice of the conclusion it might draw from the country information which may undermine his claims. In the present matter, the substantive information (drawn from the country information) which undermined the applicant’s claim was that, despite the issues with access to mental healthcare in India, the applicant would still be able to access the mental health care he required.
In that regard, it cannot be said that the Tribunal failed to comply with its procedural fairness obligations in s 425. The hearing transcript discloses that the Tribunal explained to the applicant its understanding of the country information, when it said that 'although there may be some issues there is – in layman's terms there are doctors in India…and you can get medication': Quinn Affidavit, 14. The Tribunal also explained to the applicant the relevance of the information, where it said:
So I understand what you're telling me that you're suffering this anxiety and repression and you've been seeing a psychiatrist and they've provided medication. So – and I've got the country information and it does indicate that while there are issues, the information I have, the government is putting resources into it and there are certainly doctors available who could prescribe medication. That seems to be really what I have to consider… Is there anything further you want to say to me.
The above demonstrates that the Tribunal disclosed to the applicant the country information it considered relevant to the issue in the review (and adverse to his claim) and that he was given a real and meaningful opportunity to respond to it.
For these reasons, ground 1B does not establish jurisdictional error.
Ground two
By ground two, the applicant alleges that the Tribunal failed to consider a claim (or an integer of a claim), being his fear of societal discrimination on account of his mental health condition and that he was part of a social group (being someone with a mental illness) who would be discriminated against by society writ large. The applicant contended that this was a claim that was clearly put, or at least clearly arises, separately from any claim relating to rejection from his family. It is also alleged that the Tribunal failed to intellectually engage with, evaluate and make findings in respect of those claims.
The applicant submitted that the Tribunal in its reasons acknowledged at [37] and [39] the applicant’s claims regarding his anxiety and depression, the discrimination he would face in India and being ‘cut off’ from society. The applicant’s written submission also provides extracts from the transcript of the Tribunal hearing, wherein the applicant gave the following evidence:
At Q103–A of the Quinn Affidavit:
Q103: Okay. So if we move on – because what I’m trying to discuss with you and I said, this is your opportunity, is serious harm. So you’re saying the serious harm in India, and this is for you to correct me, I’m just trying to clarify so I understand, the serious harm would be people not understanding you because you’re anxious and depressed, is that right?”
A: No, they just, you know, want to cut off from you, like they just want to like – they don’t like this type of people and like I see in my young age we got some people like this who are mentally disorder, people they don’t like it, they just want to cut off from the society and some of them they just end up, they’re like a suicide because nobody want to come out with them, no one go with them and then you’re going to end up your life.”
At Q147–A of the Quinn Affidavit:
Q147: All right. Well, I mean, it seems to me we’ve got the one issue … There’s the one issue which is your mental health issues and you’re saying you can’t receive care in India as you can here, there will be serious harm and I’ll consider first whether you meet the criteria under the Convention and then, if not, I’ll go the complementary and then we’re looking at, as I read out to you, that it is a serious harm you could suffer.
A: Yeah, that’s what I’m saying because the only thing is not that I can get medical treatment and everything, the thing is like, you know, these type of people in India they don’t treat very well, you’re cut off from society and they don’t want to talk with this type of people who have mental issue and nobody’s want to support. Even I see some when I’m in my young age I spent in India I see lots of family, even they got their relative, like even father or mother when they got this type of problem they just kick them out from the house and they just live in the street and just die like that, you know. So I just – whenever I see – I feel all that image in my mind. I see all that people going to lie on the street like this and nobody will support, even … you can’t expect anything in India from the government. Even the local people they don’t care about them. Even their family members, their sons and daughters.”
The applicant contended that his claim concerned the discrimination against people with mental illness from the society at large. It was contended that the claim related to the intolerance people faced from the society and not just by their family.
It was submitted that on more than one occasion the applicant clearly referred to being ‘cut off from society’ and being mistreated by ‘people’ generally. It was contended that the applicant’s claims included ‘societal discrimination’ which may potentially include people such as caregivers, prospective employers, work colleagues and authorities such as the police.
It was further submitted that the country information provided by the applicant’s representatives supported his broad claim about discrimination from society and people generally: CB 65–68. The country information relied on by the Tribunal, including the 2018 DFAT Report on India 2018 and the 2017 COISS Report also supported the applicant’s claim.
The applicant submitted that while the Tribunal made findings relevant to these claims, it only engaged with the evidence (and made findings) relevant to his family and whether they would support him upon return to India. It was contended that the Tribunal failed to understand and evaluate the evidence of the applicant’s claim to fear societal discrimination.
It was further contended that the Tribunal failed to consider another substantial and clearly articulated claim that, due to stigma and the shortage of government community-based services, families find it difficult to cope and often end up abandoning or forcibly institutionalising relatives with a mental illness (CB 67, [2] and footnote 15). It was submitted that although initially the applicant’s family may not reject him, given the lack of accessibility to health care for mental illness in India, eventually his family may not be able to manage his sickness and abandon him. It was submitted that the information was consistent with the oral evidence the applicant provided during the hearing, that families kick their sick relative out of their house, they live on the streets and ultimately commit suicide or otherwise die.
It was contended that the Tribunal had also failed to deal with the applicant’s claim that the societal discrimination would further exacerbate his anxiety and depression: at CB 68– 69. It was submitted that while the Tribunal acknowledged these claims, it failed to deal with them.
It was submitted that the Tribunal’s failure to deal with the applicant’s claims amounted to a constructive failure to exercise jurisdiction and carry out the review required by the Act.
The applicant relied upon the authorities in Plaintiff M1/2021, Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140 at [49] and Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3] in support of their contention that the Tribunal failed to engage in an active intellectual process with the submissions and evidence, and they were left to guess what role material considerations had played in the decision. This is particularly so in the context of the Tribunal’s finding at [69] that the applicant would not be in an ‘alien and socially rejecting environment’ in India.
The Minister’s position in respect of ground two is twofold. First, that the ground seeks to recast the applicant’s claims on a different basis than how they were made before the Tribunal. The Minister contended that the applicant’s claim regarding society discrimination and stigma in India were made in support of his claim that his family and social circle would cut him off. It was submitted that the claim, as made, was that they would cut him off because the views held by them were those held by the society in India which was prejudicial towards people suffering from mental illness. The Minister contended that the applicant, who was legally represented, did not raise (as a separate claim for protection) that he would be harmed by ‘society’ writ large, nor indicate what form that harm would take.
Second, on a fair reading of the Tribunal’s reasons, the Tribunal had considered (and rejected) that the applicant would suffer societal discrimination amounting to serious harm and the applicant had not provided evidence to establish that the claim (if made) was not considered by the Tribunal. The Minister relied upon various extracts of the Tribunal’s decision in support of their contention that the claim (of societal discrimination) was considered and rejected (at a higher level of generality) in the context of applicant’s claim (as advanced) about being rejected by his family in India.
Consideration of Ground Two
The principles relevant to a ground alleging failure by a decision maker to consider a claim or an integer of a claim are well established.
It is common ground that a Tribunal has a statutory obligation to consider all the claims (and their component integers) made by an applicant: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [42]. This obligation only arises where the claim is either: (a) the subject of a clearly articulated argument, relying on established facts; or (b) clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [55], [61], [63] and [68].
It is also common ground that a decision maker is required to ‘read, identify, understand and evaluate the representations’ and that the requisite level of engagement with those representations will vary ‘according to the length, clarity and degree of relevance’: Plaintiff M1/2021 [24] and [25]. A conclusion that the decision-maker ‘has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof’: Carrascalao at [48]. The onus lies on the applicant to establish on the balance of probabilities that a relevant matter had not been considered, keeping in mind that the reasons of the Tribunal must be read fairly and not in an unduly critical manner: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 at [24] per Kirby J.
The applicant in this matter was legally represented before the Department and the Tribunal. In his protection visa application, he claimed that, upon return to India, he will be estranged from his family, unable to access mental health care and his mental health will deteriorate without continued treatment. In relation to the harm he would fear, the applicant said there was still social stigma in India regarding mental health illness and that his family will not assist him and ‘most importantly’ he cannot access mental health care: CB 51, 53. In the accompanying submission (CB 64, 69), the applicant’s representative said the applicant had been diagnosed with a depressive disorder and will be unable to access the required health care in India. The representative set out relevant country information regarding the availability of care and social stigma. The representative submitted that the health care facilities in India are inadequate and difficult to access, and that the applicant will be unlikely to access the professional care and medication needed to treat his disorder in India. It was submitted that people still face challenges of social stigma and lack of access to facilities, and that this was exacerbated by the fact that the applicant had been estranged from his relatives. The claims were recorded by the Tribunal at [19] of its decision.
The applicant appeared before the Tribunal at a hearing to give evidence. The applicant’s representative also attended the hearing. The Tribunal asked the applicant whether there was ‘just one claim in relation to your mental health’, to which the applicant responded ‘Yes’: Q16, A of the Quinn Affidavit. The hearing transcript discloses that the Tribunal discussed with the applicant his immigration history, employment background and relationship with his family in India. When seeking to clarify the ‘serious harm’ he would experience in India, the applicant’s response (as extracted above at [78] and [79]) was that people with a mental disorder are cut off from society and that some end up suiciding because nobody wants to go out with them: Q103, A of Quinn Affidavit. At Q147, A of the Quinn Affidavit (extracted above at [78] and [79]), the Tribunal sought to clarify with the applicant that there was one issue, being his mental health issue and his claim that he cannot receive care in India and there will be serious harm because of this. It explained to the applicant that it would consider his claim under the Convention and under the complementary protection criteria. In his response, the applicant said people with mental health issues are ‘cut off’ from society, no one wants to support them, people with mental health issues are kicked out by their families on the street and they just die, the government will not assist, the local people will not care about them and neither will their family.
Having regard to the written and oral evidence in its entirety, I am not persuaded that the applicant made a separate and distinct claim to fear serious harm from society at large if he returned to India. Nor am I persuaded that such a claim clearly arose as a stand-alone issue on evidence before the Tribunal. The applicant’s claim of being ostracised by society and suffering discrimination formed part of his principal claim that he was suffering from a mental health illness, on account of which he feared being estranged from his family and being unable to access treatment upon return to India.
Even though the applicant’s claim encompassed several component integers, including being put on the street by his family due to the stigma surrounding mental health in India, being mistreated and socially isolated (because ‘nobody wants to go out with them’, ‘talk with them’ or ‘support them’), which may drive him to suicide, I am of the view that these integers were inter-related with his principal claim.
A fair reading of the Tribunal’s reasons and conclusions discloses that it had regard to the applicant’s claims (and integers thereof) in the context of the applicant’s principal claim and the harm he feared upon return to India on account of his mental health.
It cannot be said that the Tribunal overlooked the applicant’s evidence regarding his claim of social isolation or discrimination. At [37], it said the applicant claimed to be part of a social group due to his depression and anxiety, that he would face discrimination and that in India he would feel even more depressed due to ‘the way he would be treated.’ At [39], the Tribunal recorded the applicant’s claim that ‘people who are mentally disordered are cut off from society’, ‘put on the street by their families’ and that he had ‘witnessed this before he left for India’. This was an accurate reflection of the applicant’s oral evidence with respect to any claims of being isolated (‘cut off’) from society on account of his mental illness.
In considering the applicant’s principal claim, in the context of determining whether the applicant had a well-founded fear of persecution (being a real chance of suffering serious harm) upon return to India on account of his mental health, the Tribunal did not accept that the applicant suffered from a severe mental illness or that he would not be provided with the services required for his mental health condition (of anxiety and depression). The Tribunal found that the applicant came from an educated family who had supported him and his siblings, it did not accept that he had been rejected by his family and was satisfied that the applicant’s family would support him (and that he would have an established network and community to support him) upon return to India. The Tribunal was also satisfied that the applicant would have good job prospects in India. These findings and conclusions were open to the Tribunal based on the evidence before it, including that which was provided by the applicant about his mental health condition, personal circumstances and family in India.
The ‘failure’ by the Tribunal to consider, as a distinct claim, societal discrimination and stigma on account of mental illness must be viewed in the context of these findings. On the basis of its findings in respect of the principal claim, it was also open for the Tribunal to deal with its component integers in the way it did. The Tribunal’s finding at [69] that the applicant would not be returning to an ‘alien and socially rejecting environment’ must therefore be read in the context of its consideration and findings in respect of the principal claim.
As to the contention that the applicant’s claim about societal discrimination and mistreatment may potentially include caregivers, prospective employers, work colleagues and the police, this was not a claim raised by the applicant, nor can it be said that it clearly arose on the evidence before the Tribunal. The applicant’s claim about being cut off from society was in the context of being rejected by his family and ending up on the street (Q147, A) and about his social network who may ‘not want to go out with [him]’ or ‘go with [him]’: Q103, A. It was not, as now cast, a claim about the discrimination from society at large. In the circumstances, it was not necessary for the Tribunal to engage with (or analyse) the general country information about the myths and false beliefs about mental illness, social stigma and discrimination by the society and people generally.
I am satisfied that the Tribunal dealt with the applicant’s claims as they arose before it. The Tribunal engaged with those claims according to their clarity, degree of relevance and in the context of the principal claim advanced by the applicant about his mental health and the fears he expressed about returning to India.
A fair reading of the Tribunal’s reasons disclose that it appreciated the applicant’s claims (as presented to it) and that it considered the evidence, to the extent necessary, and made findings that were open to it. Read as a whole, the Tribunal’s reasons do not disclose any failure on its part to consider the applicant’s claims in their totality. Ultimately, the Tribunal was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution upon return to India or that there was a real risk that he would suffer significant harm.
Read in context, there was no failure on the part of the Tribunal to consider a claim or an integer of a claim.
For these reasons, ground two does not establish jurisdictional error.
CONCLUSION
As none of the ground advanced establish jurisdictional error, the application for judicial review, as amended, must be dismissed.
I certify that the preceding one hundred and six (106) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros. Associate:
Dated: 11 April 2025
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