BNQ16 v Minister for Immigration
[2020] FCCA 1660
•23 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BNQ16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1660 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – Protection (Class XA) visa – application filed out of time – time extended by consent – whether the Tribunal failed to consider an integer of the applicant’s claims – claim not found to have been squarely put before the Tribunal – no jurisdictional error established – application dismissed with costs. |
| Legislation: Migration Act 1958 (Cth) |
| Cases cited: Abebe v Commonwealth [1999] HCA 14 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ELA18 v Minister for Home Affairs [2019] FCA 1482 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 SBTF v Minister for Immigration and Citizenship [2007] FCA 1816 SCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 80 SZQFR v Minister for Immigration and Citizenship [2013] FCA 574 SZULW v Minister for Immigration and Border Protection [2018] FCA 1335 SZULW v Minister for Immigration and Border Protection [2018] FCCA 258 |
| First Applicant: | BNQ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 1332 of 2016 |
| Judgment of: | Judge Blake |
| Hearing date: | 22 April 2020 |
| Date of last submission: | 22 April 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 23 June 2020 |
REPRESENTATION
| Counsel for the applicant: | Mr Kenneally |
| Solicitors for the applicant: | Holding Redlich |
| Counsel for the respondents: | Mr Murano |
| Solicitors for the respondents: | Clayton Utz Lawyers |
ORDERS
The application filed on 23 June 2016 and amended on 2 January 2020 be dismissed.
The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1332 of 2016
| BNQ16 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 10 February 2016.
For the reasons that follow, I have decided to dismiss the application for review.
Background
The Applicant is an Iranian national of the Kurdish ethnicity. He arrived in Australia as an unauthorised maritime arrival on 17 July 2012.
The Applicant applied for a Protection (Class XA) visa (‘visa’) on
29 November 2012.
On 9 December 2013, a delegate of the Minister (‘delegate’) refused to grant the Applicant the visa.
On 27 December 2013, the Applicant sought review of the Minister’s decision in the Refugee Review Tribunal (‘RRT’) (as it then was).
On 21 April 2015, the Applicant attended and participated in a hearing before the RRT. He was assisted by a representative and an interpreter in the English and Kurdish languages.
On 19 November 2015, the Applicant attended and participated in a further hearing before the Tribunal. He was again assisted by a representative and an interpreter in the English and Kurdish languages.
On 10 February 2016, the Tribunal affirmed the delegate’s decision not to grant the Applicant the visa.
The Applicant applied to this Court for judicial review of the Tribunal’s decision on 23 June 2016.
On 2 January 2020, the Applicant filed written submissions and an amended initiating application (‘Application’).
The Minister filed written submissions on 8 April 2020.
The Applicant’s initial application for review was not filed in this Court within the time period specified by the Migration Act 1958 (‘Act’). The Court made orders by consent on 20 April 2020 extending the period of time in which the Applicant had to file his application for review.
Grounds of review
The Application contains a single ground of review. It is as follows:
‘1. The Tribunal failed to consider an integer of the applicant’s claims that he faced a real chance of serious harm or significant harm from the Basij and/or Iranian authorities.
Particulars
a. The applicant claimed to fear harm from the Basij and the Iranian authorities on account of race: Kurdish; and his actual or imputed political opinion opposed to the Iranian regime.
b. The applicant claimed that his arrest by the Basij in 2012 had caused him mental health problems, and that he could no longer cope with harassment by Basij and discrimination against him as a Kurd.
c. The Tribunal was obliged to consider the applicant’s personal circumstances, including his mental health, in assessing his risk of serious or significant harm in Iran.
d. The Tribunal did not consider the applicant’s mental health in assessing his risk of serious harm or significant harm.
e. The Tribunal’s failure to consider the applicant’s mental health was material to the outcome of the review in three ways:
i. The Tribunal found the applicant was a [sic] remote risk of being physically harmed by the Basij, but did not consider whether other interactions with the Basij would cause the applicant psychological harm given his mental health.
ii. The Tribunal did not have regard to the applicant’s mental health and subjective fear of Iranian authorities in assessing whether any questioning of the applicant at the airport on return to Iran would cause him serious or significant harm.
iii. The Tribunal accepted the applicant would face discrimination in Iran as a Kurd, but did not consider the applicant’s mental health in finding that such discrimination did not amount to serious or significant harm.’
Matters requiring determination by the Court
At the outset of the hearing, Counsel for the Applicant very ably and helpfully identified the parameters of the issues before the Court. The Applicant accepted that the claim that his arrest by the Basij caused him mental health problems had not been expressly raised by him. Rather, the issue confronting the Court is whether the claim that the Applicant would suffer mental health problems (the ‘Claim’) clearly arose from the material.
The Applicant identified, and the Minister accepted, that the Court was required to determine three key issues:
a)Did the Claim arise from the material?
b)If the answer to the above question is ‘yes’, whether the Claim was considered by the Tribunal?
c)If the Claim was not considered, whether the Tribunal’s failure to consider the Claim was a material failure.
It is to the above matters that the Court now turns.
Did the Claim arise from the material?
The Applicant contends the Claim did arise from the materials. The Applicant in this respect points firstly to paragraph [54] of the decision of the Tribunal (‘Decision’) which is as follows:
‘At the November 2015 hearing, the applicant told the Tribunal that what had happened to him in the past had affected his memory. On one occasion he was assaulted by the Basij and he was still suffering the psychological consequences, but he did not want to talk about it too much in case people think that he is crazy. He said that he had not mentioned it to the Department of Immigration or the Tribunal in the past, because he did not want people to think that he is mentally unwell. The Tribunal asked him whether he wanted to talk about this incident, he described the motorcycle episode. The Tribunal observed that he had mentioned this previously both in his written and oral evidence.’
The Applicant then says that the remarks noted in paragraph [54] of the Decision need to be considered in light of the following:
a)The Applicant, in a Statutory Declaration dated 22 November 2012, had complained about his fear of the Basij. In particular, at paragraph [22] of the Statutory Declaration at page 60 of the Court Book, the Applicant had stated as follows:
‘I lived in constant fear of the Basij and felt that I could no longer cope with the continuous harassment and discrimination I experienced. The Basij's corruption and authoritarian control dominated our daily lives.’
b)In submissions prepared on the Applicant’s behalf by Fragomen, dated 2 April 2014, it was submitted at page 203 of the Court Book that:
‘…while it is difficult to obtain reliable information in Iran on the situations of Kurds, it is obvious that even Kurds who are not politically active face increasing difficulties with the Iranian authorities, such as discrimination and harassment solely on the grounds of their ethnicity.’
Further, in respect of the above, the Applicant submits that it is accepted that where a person has suffered harm in the past, an inference may be drawn that the person will suffer harm in the future: Abebe v Commonwealth (1999) 197 CLR 510 per Gleeson CJ and McHugh at [82] and Gummow and Hayne J at [192].
When the above matters are considered, it is the Applicant’s contention that he linked his mental health directly with the claims raised by him that he fears, inter alia, discrimination or mistreatment by the Basij. He says the Tribunal had the component parts of the claims or information before it which gives rise to the Claim having been raised, and needing to be dealt with. The Applicant says, inter alia, that his claim that his mental health deteriorated because of the conduct of the Basij, and his statement that he could ‘no longer cope’ with the harassment, are enough to enable an inference to be drawn that the Applicant’s mental health would suffer either as a result of further contact with the Basij, or because of the discrimination he suffered as a Kurd.
It is uncontroversial that the Tribunal must consider the essential integers of an applicant’s claim. The relevant question here is whether the Claim was an essential integer of the Applicant’s claim. Put another way, the question is whether the Claim, while not expressly stated, was raised squarely and whether there was a failure, in the words of the High Court of Australia, to respond to a claim that was a ‘substantial, clearly articulated argument relying upon established facts’: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [24].
A consideration of whether the Claim arises from the material must begin with an examination of the material itself and in particular, the Applicant’s claims. The Applicant’s claims were first set out in some detail in the Statutory Declaration dated 22 November 2012. An examination of that document commencing at page 57 of the Court Book reveals, among other things, the following:
a)there was tribal conflict between the Behr and Mishkas tribes and in around 2002 , at which time the Applicant was threatened by ‘about ten or twenty Mishkas men’ (Court Book page 57);
b)the Applicant was persecuted by the Sepah who ransacked his family home in 2000 (Court Book page 59);
c)the Applicant feared the Basij for reasons that included, inter alia, their assault of him in 2004 or 2005 and a beating he received from them in 2012 following an incident on a motorcycle taxi (Court Book page 59);
d)the Applicant lived in constant fear of the Basij and felt that he could no longer cope with the harassment and discrimination that he experienced (Court Book page 60).
An examination of the claims above does not disclose, in my view, any link between the harm the Applicant claimed to have suffered, and the existence of any psychological or mental health problems. The highest the material gets is the statement that he ‘could no longer cope’ with the harassment and discrimination he experienced. In fact, an examination of the Applicant’s claims advanced throughout the history of the matter discloses that the first mention of the Applicant suffering any ‘psychological’ problems only occurred at the second hearing before the Tribunal on 19 November 2015.
There is then the text of paragraph [54] of the Decision itself. I have set out earlier in these reasons, the entirety of that paragraph. The Tribunal there records the assault the Applicant experienced from the Basij and the Applicant’s statement that he was ‘still suffering the psychological consequences’. The Applicant refers to his failure to mention it up to this point in time ‘in case people think that he is crazy’. The Decision then records that the Applicant was invited by the Tribunal to talk about the situation. Rather than elaborating on any aspect of his mental health, the Tribunal records that the Applicant simply ‘described the motorcycle episode’.
There are also facts and circumstances in addition to what I have set out above that need to be taken into account in determining whether the Claim arises squarely on the material. These include the following:
a)as noted earlier, the Applicant arrived in Australia on 17 July 2012. The first mention of any psychological or mental ill health that the Applicant may be suffering only occurred at the second hearing on 19 November 2015;
b)the Applicant never communicated the nature or extent of any psychological consequences, including any diagnosis, symptoms or treatment for his conditions. Nor did he indicate whether returning to Iran would have any effect on any psychological condition;
c)the Applicant did not raise in submissions before the Tribunal on 1 May 2015 any issue regarding his psychological health. This is despite the fact that those submissions dealt with the subject of healthcare in Iran and the difficulties the Applicant may face in accessing such healthcare in Iran (Court Book page 248); and
d)the Applicant did not raise any issue with respect to his mental health in post hearing submissions to the Tribunal (see Court Book pages 289 – 290).
It is relevant to note that the Applicant was represented before the Tribunal. In SZULW v Minister for Immigration and Border Protection [2018] FCA 1335, Thawley J endorsed the following statement, of Cameron J in SZULW v Minister for Immigration and Border Protection [2018] FCCA 258 at [21], in the context of the matter before him:
‘Unless there are reasons to think otherwise, it may be assumed that the claims which a represented applicant wishes to make before the Tribunal are the ones expressly articulated by him or her and his or her advisers and that any other arguable claims which are not expressly articulated are not pressed.’ (citations omitted)
Similar sentiments were expressed by Dowsett J in SZQFR v Minister for Immigration and Citizenship [2013] FCA 574. In that matter, Dowsett J had to consider whether there was any separate claim to fear persecution for reason of the appellant being a young Hazara male. Dowsett J recited the facts and concluded that the claim had been abandoned. In so reaching that conclusion, Dowsett J at [57] stated that
‘If either the appellant, or those representing and advising him considered that there was a second claim to fear persecution for reason of his being a young Hazara, the perceived distinction would surely have led to its being stressed, not completely overlooked.’
It seems to me that the present matter has some similarities to the matter considered by Dowsett J. While the Applicant contends that the Claim was articulated by him as recorded by the Tribunal at paragraph [54], the Claim did not find expression in either the pre-hearing submissions, or the post hearing submissions to the Tribunal. In circumstances where the Applicant was represented, it is to be expected that if this was an essential integer of the claims advanced by the Applicant, it would have been emphasised by his advisers. It was not, and therefore the Tribunal was entitled to proceed and assume the Claim was not an essential integer of the claims being made.
There is then the Applicant’s claim that his mental health deteriorated because of the conduct of the Basij, and that it therefore follows that future interactions between the Applicant and the Basij could adversely affect his mental health.
There are two aspects about this submission that bear mention. First, the Applicant did not claim that his mental health deteriorated ‘because of the conduct of the Basij’. As I have noted earlier, the relevant part of the statement made by the Applicant was that he ‘could no longer cope’, or alternatively, that he was suffering psychological consequences.
Second, there are decisions that deal with the issue of whether an applicant might suffer psychological harm if he or she is required to return to their country of origin. Two such cases drawn to my attention by the Applicant are SBTF v Minister for Immigration and Citizenship [2007] FCA 1816 (‘SZBTF’), and SCAT v Minister for Immigration and Multicultural Affairs [2003] FCAFC 80 (‘SCAT’). While the appellants were successful in those cases, there are important distinctions to be drawn between the present matter and the decisions in SBTF and SCAT. In SBTF, the appellant had provided two reports from a psychologist, and there was evidence the appellant had suffered psychological harm as a result of his detention and torture. In SCAT, the appellant’s fear of psychological harm was expressly raised in written submissions and the appellant provided evidence from others. Those are important facts. They do not arise in the present case.
A matter closer to the present matter is ELA18 v Minister for Home Affairs [2019] FCA 1482 (‘ELA18’). In that matter, the appellant contended that he had mental health issues, and that such issues were raised as an integer of his claim but not determined. The appellant identified three sources from which he contended his claim about mental health issues arose. The first was his answer to a question on a form where he wrote ‘I see a mental health professional’. The second source was in the SHEV interview where the appellant indicated that he did not have any physical issues, but had mental worries, and in which he also disclosed that he no longer went to counselling. The third source was a submission where he quoted an aspect of a DFAT report about a lack of capacity to respond to general health needs (see paragraph [26] of ELA18).
Abraham J dismissed the appellant’s claim. At paragraph [32], Abraham J stated:
‘The respondent's submission is correct. When the matters relied on by the appellant are considered in their proper context, it is apparent that the appellant's mental health was not expressly part of any claim, and nor did it squarely arise on the material before the Authority. The first reference is in a procedural document which included a question relating to an interview. The second, a question asked during that interview, was about mental health and the appellant said he was no longer receiving counselling. The third was part of a general submission relating to relocation. There was no reference to the appellant's mental health, or the availability of mental health care in Sri Lanka, even in that submission. This is to be contrasted with the detailed 4 page document which set out the basis of his claims. No submission was ever advanced, (including in the many submissions made by the appellant's representatives), that the appellant claimed to fear harm due to "mental health issues" or due to lack of access to mental health care in Sri Lanka. Moreover, the appellant was, and remains, represented throughout the process. The Authority was entitled to assume that the claims expressly articulated by the appellant and his representative as to his feared persecution if he returned to Sri Lanka are those on which he relies.’. (citations omitted)
While each case turns on its own facts, there are similarities between this case and the matter before Abraham J. In each case, the claim was not clearly articulated. In each case, the applicant was represented. In each case, medical evidence was not placed before the Court. In each case, the applicant was not undertaking counselling (though in ELA18, the fact that the applicant had at least previously attended counselling means that arguably, the mental health claim was more clearly articulated there when compared to the matter presently before the Court).
In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [58], the Full Court of the Federal Court of Australia made the following, oft quoted, observations:
‘The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it. There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated. By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant. It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.’ (citations omitted)
When all of the above matters are considered I find for the reasons set out above that the Claim was not, in the circumstances of this case, raised ‘squarely’ on the material available. The Claim was not, in my view apparent on the face of the material before the Tribunal when all of the matters to which I have referred are considered. The Tribunal therefore did not have any statutory duty to consider the Claim any further.
Given the conclusion I have reached above, is unnecessary for me to deal with the two remaining questions being, first whether the Claim was nevertheless considered by the Tribunal, and second, whether the Claim was material to the outcome.
Accordingly, I dismiss the Application and award costs to the Minister.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Blake
Associate:
Date: 23 June 2020
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