Box17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 277
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BOX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 277
File number(s): MLG 738 of 2017 Judgment of: JUDGE LUCEV Date of judgment: 29 April 2022 Catchwords: MIGRATION – Judicial review – decision of the Administrative Appeals Tribunal – Protection (Class XA) (Subclass 866) visa – citizen of Sri Lanka – whether evidence misconstrued – whether failure to properly consider claims – whether jurisdictional error Legislation: Migration Act 1958 (Cth) Div 5, Pt 5, ss 36, 474, 476 Cases cited: AFP21 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1322
ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321
EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214; (2018) 262 FCR 304
Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244
Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215
Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609
Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
Division: Division 2 General Federal Law Number of paragraphs: 31 Date of last submission/s: 3 March 2022 Date of hearing: 3 March 2022 Place: Perth Counsel for the Applicant: Ms M. Yu Solicitor for the Applicant: Erskine Rodan And Associates Counsel for the First Respondent: Mr A. Cunynghame Solicitor for the First Respondent: Sparke Helmore The Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 738 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BOX17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
29 APRIL 2022
THE COURT ORDERS THAT:
1.The originating application filed 12 April 2017, as amended by an amended originating application filed 1 February 2022, and as further amended by a further amended originating application filed 7 February 2022, be 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 LUCEV
INTRODUCTION
Before the Court is an application filed by the applicant, BOX17, in the Melbourne Registry of the Court (then styled the Federal Circuit Court of Australia) on 12 April 2017 under s 476 of the Migration Act 1958 (Cth) (“Migration Act”) (“Judicial Review Application”). The Judicial Review Application concerns a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) handed down 24 March 2017. The Tribunal affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the then Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), to refuse to grant BOX17 a Protection (Class XA) (Subclass 866) visa (“Protection Visa”).
On 1 February 2022 BOX17 filed an amended Judicial Review Application (“Amended Judicial Review Application”). The Amended Judicial Review Application contained two grounds. BOX17 sought and obtained leave from the Court on 15 February 2022 for the filing on 7 February 2022 of a further Amended Judicial Review Application (“Further Amended Judicial Review Application”) abandoning ground 2 of the Amended Judicial Review Application. The sole remaining ground of review is set out below at [12] (ground 1).
The following materials are before the Court:
(a)a Court Book (“CB”) numbering 281 pages (“Exhibit 1”);
(b)BOX17’s written submissions filed 2 February 2022 (“BOX17’s Submissions”); and
(c)the Minister’s written submissions filed 17 February 2022 (“Minister’s Submissions”).
FURTHER AMENDED JUDICIAL REVIEW APPLICATION
Background
The relevant background to the Further Amended Judicial Review Application is as follows:
(a)on 15 August 2006 BOX17, a citizen of Sri Lanka, first entered Australia on a student visa;
(b)more than seven and a half years later, on 24 February 2014, BOX17 applied for the Protection Visa: CB 15-41 (“Protection Visa Application”);
(c)at CB 33-36 BOX17’s claims in the Protection Visa Application are set out as follows:
(i)he borrowed too much money from his brother because of his gambling, drinking and smoking habits in Melbourne, and his brother was angry and tried to hit him, and if he returned to Sri Lanka he was scared his brother would kill him;
(ii)he had difficulties facing friends and the community because he has acne scars on his face. He claimed that people who talk to him ask him about his face. He claimed that he has tried to kill himself in the past because of this and he feared he may kill himself if he returned to Sri Lanka;
(iii)his family was angry because in 2012: CB 38, the last time he went to Sri Lanka, he stayed at the house of a former secretary to the leader of the Liberation Tigers of Tamil Eelam (“LTTE”), and so his brother and father rejected him because they are racist;
(iv)he had no work experience and would not be able to find a job if he returned to Sri Lanka;
(v)he has mental health conditions and if he returned to Sri Lanka he will not be able to see a psychologist and the doctors will not be able to understand him; and
(vi)the Sri Lankan authorities could not protect him because his father and brother have power and know politicians and police very well;
(d)included with the Protection Visa Application was a psychological report dated 29 April 2013 (“Psychologist’s Report”, set out below at [20]): CB 45 (a report seemingly “requested” by BOX17: CB 44, see [21] below);
(e)on 15 April 2015 the Delegate’s Decision was to refuse to grant the Protection Visa: CB 92-106. The Delegate did not accept BOX17’s claims to fear harm, and accordingly found s 36(2)(a) and (aa) of the Migration Act were not satisfied;
(f)on 4 May 2015 BOX17 applied for review in the Refugee Review Tribunal (as it then was): CB 107-108, and appointed a migration agent to represent him: CB 114-116;
(g)on 25 February 2017 BOX17 submitted a statutory declaration to the Tribunal claiming that he had converted to Christianity in 2016: CB 137-138, and claimed that:
(i)he would be emotionally and physically harmed if he returned to Sri Lanka because his family are from a Buddhist background; and
(ii)there are “attacks everywhere against Christians in Sri Lanka since the change of government in 2015”, and he submitted articles about the persecution of Christians in Sri Lanka and letters of support from church leaders, various other community members and a counsellor: CB 142-152;
(h)on 7 March 2017 BOX17 appeared before the Tribunal to give evidence and present arguments: CB 155-158; and
(i)on 10 March 2017 BOX17 provided, through his migration agent, further submissions to the Tribunal from a Pastor, which attached further articles regarding the persecution of Christians in Sri Lanka (“Post-Tribunal Hearing Submission”): CB 166-220. The Pastor had been a witness for BOX17 at the Tribunal hearing: CB 221.
Tribunal Decision
In the Tribunal Decision the Tribunal:
(a)accepted that BOX17 may have had arguments with his brother about the money BOX17 spent, but did not accept that BOX17 was harmed in these arguments, noting that BOX17 only stated that his brother “tried to hit him” but did not actually do so: CB 233 at [51];
(b)did not accept that BOX17 faced a real chance of serious harm or a real risk of significant harm from family members, including his brother, because BOX17 had wasted money on drugs, alcohol and gambling whilst in Australia: CB 233-234 at [52];
(c)noted that on BOX17’s own evidence, BOX17 believed the familial dispute had been by and large resolved, as the money had been repaid to his brother by their mother, and there had been a level of rapprochement with the family, and, therefore, the Tribunal did not accept that BOX17’s family members would seek to hit him, kill him or otherwise harm him because of the money wasted: CB 234 at [53];
(d)found that BOX17’s fears about his return to Sri Lanka by reason of his having wasted money on drugs, alcohol and gambling were speculative and not based on any objective basis: CB 234 at [54];
(e)found that BOX17 did not face a real chance of serious harm or a real risk of significant harm arising from any debts to family members or concerns in relation to his having wasted money on drugs, alcohol or gambling: CB 234 at [54];
(f)indicated sympathy with BOX17’s desire not to be spoken to rudely, or in a joking way, about his appearance, but did not consider being spoken to in this manner constituted serious or significant harm, and, having particular regard for the “number of relevant qualifications” and “suite of skills” acquired whilst in Australia, found that BOX17 could live freely and work in Sri Lanka despite his concerns about his appearance, and that he would not be ostracised or discriminated against for that reason: CB 234-235 at [56];
(g)did not accept BOX17 would harm himself because of his appearance: CB 234-235 at [56];
(h)found that BOX17 did not face a real chance of serious harm or a real risk of significant harm by reason of his appearance: CB 234-235 at [56];
(i)considered BOX17’s health concerns more broadly, and based on the Psychologist’s Report found that BOX17 would be able to manage his anxiety on return to Sri Lanka and successfully reintegrate back into Sri Lankan society, and therefore found that BOX17 did not have a real chance of serious harm or a real risk of significant harm for this reason: CB 235 at [57];
(j)accepted BOX17 had stayed at the house of a friend’s mother for a short period in 2012 and had an association with his friend and a senior officer for whom his friend had done work: CB 235 at [58], that senior officer not being liked by BOX17’s family because of the senior officer’s “activities during the war, including his killing of Buddhist monks”: CB 235 at [59] (although not expressly stated by the Tribunal, the Court infers from the BOX17’s claims: see [4(c)(iii)] above, and the Tribunal’s findings at CB 235 at [58]-[59], that the senior officer was most likely a senior officer with the LTTE);
(k)noted BOX17’s evidence that his friend, who had done work for the senior officer, had not been harmed in the community: CB 235-236 at [61], and on the available evidence found that BOX17 would not have a real chance of serious harm or a real risk of significant harm because of his friendship with his friend or his association with the senior officer: CB 235-236 at [61];
(l)accepted that BOX17 converted to Christianity out of genuine religious interest: CB 236 at [63];
(m)accepted that BOX17’s family were faithful Buddhists who attend the temple regularly: CB 237 at [69], but based on the available evidence and relevant country information, did not accept that BOX17 would be harmed by his family on return to Sri Lanka because of his conversion and practice as a Christian: CB 237 at [68]-[69]. The Tribunal noted country information that indicated that BOX17 may be ostracised from his family, but found that this did not constitute serious or significant harm: CB 237-238 at [69] and [71];
(n)found that BOX17 did not face a real chance of serious harm or a real risk of significant harm from his family arising out of his conversion to, or practice of, Christianity: CB 237 at [68]-[69] and 238 at [71]-[73];
(o)based on the available evidence and relevant country information, also did not accept that BOX17 would be harmed by the community because of his conversion to Christianity or because of his practising as a Christian in Sri Lanka: CB 241 at [85];
(p)found that violence against minorities was, in fact, reducing in Sri Lanka, and that those Christians who may be targeted were church leaders or proselytisers, and BOX17 had made no claim to be a church leader or proselytiser. Accordingly, the Tribunal did not accept there was a real chance of serious harm or real risk of serious harm arising from his conversion or practice of Christianity in Sri Lanka: CB 241-242 at [85]-[88];
(q)having regard to all the circumstances and findings above, both individually and cumulatively, found that BOX17 did not face a real chance of serious harm in Sri Lanka arising from his family difficulties, either from wasting money on drugs, alcohol and gambling; his appearance; his friendship with his friend and association with the senior officer; or the new claims arising from his conversion to Christianity and practice as a Christian: CB 242 at [89]; and
(r)found that BOX17 did not meet s 36(2)(a) or (aa) of the Migration Act: CB 242-243 at [93]-[95].
Some further aspects of the Tribunal Decision, and other relevant background matters, are set out in greater detail hereunder: see [20]-[25] below
Litigation History
The relevant litigation history of this matter is as follows:
(a)as stated above at [1], BOX17 filed the Judicial Review Application in the Melbourne Registry of the Court on 12 April 2017;
(b)on 25 October 2017 a consent order was made by a Registrar of this Court with the usual first Court date programming orders and listing the matter for final hearing before a Judge in the Melbourne Registry on 5 February 2020;
(c)on 30 August 2019 an email was sent to the parties from the Chambers of the Judge in the Melbourne Registry attaching a “Letter of Adjournment” advising that:
(i)“ … this proceeding has been transferred to the Melbourne Migration Docket”; and
(ii)the parties “ …will be notified in due course of a new listing date in the Federal Circuit Court of Australia”,
but it appears the matter was transferred to the National Migration Docket, and no new listing date was advised in the Melbourne Registry; and
(d)due to well-known and acknowledged significant delays in allocating migration judicial review applications in the Melbourne Registry of this Court to a Judge for hearing: AFP21 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1322 at [25] per Chief Judge Alstergren and Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556 at [7] per Judge Lucev, in November 2021 this matter was transferred to the Perth Registry of the Court and listed before the Court as presently constituted on 19 November 2021 for a directions hearing, whereat orders were made listing the matter for hearing on 3 March 2022.
Jurisdictional Error Required
This Court may set aside the Tribunal Decision upon judicial review if it is affected by jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. An instance where the Tribunal:
(a)identifies a wrong issue;
(b)asks a wrong question;
(c)ignores relevant material; or
(d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thus affected, resulting in a decision exceeding, or a failure to exercise, any authority or powers given to the Tribunal under the Migration Act, may constitute a jurisdictional error: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 (“Yusuf”) at [82] per McHugh, Gummow and Hayne JJ. There are other recognised categories of jurisdictional error, but they are not in issue here.
To constitute jurisdictional error the error must be material in the requisite sense explained in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 (“MZAPC”) at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ as follows:
Materiality was explained in Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 421 to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.
The onus is upon BOX17 to establish jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424.
The Court does not have jurisdiction to review the merits of the Tribunal Decision, or determine BOX17’s claim for the Protection Visa: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”); CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Ground 1
Ground 1 of the Judicial Review Application is as follows:
1.The Second Respondent (the Tribunal) misconstrued the Applicant's evidence and failed to properly consider his claims.
Particulars
a.In applying for a Protection visa, the Applicant claimed to fear harm for reasons including his physical appearance, mental ill-health, and inability to reintegrate into Sri Lankan society (CB 96). Relevantly the decision record of a delegate of the First Respondent recorded that the Applicant had made the following claims:
i.He would not receive the mental health treatment he requires in Sri Lanka because the doctors in Sri Lanka won't understand him;
ii.He may kill himself if he returns to Sri Lanka due to being ostracised from society due to his acne scars; and
iii.That he may not be able to re-integrate into Sri Lankan society because he had been in Australia for 8 years".
b.The Tribunal at [57] of its decision, found that among other things, "... the applicant's own psychologist had provided a letter, as given to the Department, that demonstrated he would be able to manage his anxiety on return to Sri Lanka and successfully integrate back into society” and consequently found that the Applicant did not face a real chance of serious harm or real risk of significant harm for reasons relating to his physical appearance or mental health.
c.In making the finding referred to above at (b), the Tribunal misconstrued the evidence contained in the psychologist's letter (at CB 45) in which the psychologist's opinion was qualified by the following passage "Provided he maintains the skills he has been taught I believe he will be able to manage his anxiety sufficient well to enable him to successfully reintegrate into Sri Lankan culture. But would strongly recommend he seek a mentor/counsellor outside his family domain" (sic).
d.In making the finding referred to above at (b) the Tribunal made no findings as to whether the Applicant would be able to maintain the requisite skills, or find the requisite mentor/counsellor outside of his family domain, in accordance with the psychologist's recommendations. Consequently, the Tribunal's decision was affected by jurisdictional error.
BOX17’s Submissions
In relation to ground 1 BOX17 submitted that:
(a)a misstatement of, and consequent failure to deal with a claim raised by an applicant constitutes jurisdictional error: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 (“Dranichnikov”) at [23]-[24] per Gummow and Callinan JJ. Similarly, a decision-maker is required to consider the claims and integers of claims that are not expressly articulated but which necessarily arise on the materials: EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214; (2018) 262 FCR 304 (“EVA17”) at [36] per Perry, Derrington and Wheelahan JJ. BOX17 had claimed to fear harm for reasons including his physical appearance, mental ill-health, and inability to reintegrate into Sri Lankan society, which was recorded in the Delegate’s Decision to refuse the Protection Visa application: CB 96. Despite having introduced additional claims relating to his conversion to Christianity on review before the Tribunal, these earlier claims had not been abandoned by BOX17 at any point during the review;
(b)in the Tribunal Decision at CB 235 at [57], the Tribunal purported to consider aspects of these claims and found that there was no real chance or real risk of serious or significant harm to BOX17 for these reasons. In finding that there was no real chance or real risk of serious or significant harm to be faced by BOX17 in Sri Lanka as a result, the Tribunal stated that “…the applicant’s own psychologist had provided a letter, as given to the Department, that demonstrated he would be able to manage his anxiety on return to Sri Lanka and successfully integrate back into society”;
(c)the letter referred to in the Tribunal Decision at CB 235 at [57] was the Psychologist’s Report: CB 45, but in making its findings CB 235 at [57] the Tribunal misconstrued the contents of the Psychologist’s Report. This was because the opinion expressed in the Psychologist’s Report as to BOX17’s ability to manage his mental health condition and reintegrate into Sri Lankan society was qualified by the following passage:
Provided he maintains the skills he has been taught I believe he will be able to manage his anxiety sufficient well to enable him to successfully re-integrate into Sri Lankan culture. But would strongly recommend he seek a mentor/counsellor outside his family domain.
(d)the Tribunal Decision does not demonstrate any engagement with this aspect of the Psychologist’s Report. As is evident from the Tribunal Decision, it made no findings as to whether BOX17 would be able to maintain the requisite skills, or find the requisite mentor/counsellor outside of his family domain, in accordance with the recommendations in the Psychologist’s Report. The Court ought to find that the Tribunal had erred by misconstruing this aspect of BOX17’s evidence and that it, therefore, failed to properly consider his claims.
Minister’s Submissions
In submissions asserting that ground 1 did not establish jurisdictional error in the Tribunal Decision the Minister submitted that:
(a)BOX17 claimed that his mental health had diminished because of acne scars on his face, that he would not receive the mental health treatment he needs in Sri Lanka because doctors in Sri Lanka would not understand him, and that he may kill himself if returned to Sri Lanka due to being ostracised from society due to his acne scars: CB 34-36 and 95. BOX17 did not elaborate on this claim in a statutory declaration provided to the Tribunal: CB 143-144;
(b)the Tribunal squarely dealt with the claim concerning BOX17’s appearance at CB 228 at [19]-[20] and 234-235 at [55]-[56]. The Tribunal did not accept that BOX17 would face a real chance or real risk of serious or significant harm, and found that he could live freely and work in Sri Lanka despite his concerns about his appearance, and would not be ostracised or discriminated against for that reason: CB 234-235 at [55]-[56], and those findings were open to it for the reasons it gave;
(c)the Tribunal’s findings at CB 235 at [57] concerned BOX17’s mental health more broadly with respect to his anxiety. The reference to the Psychologist’s Report is unsurprising in circumstances where the Psychologist’s Report was directed towards the psychologist’s sessions with BOX17 to manage and reduce his anxiety. Significantly, the Psychologist’s Report also notes that BOX17’s fears and concerns over his physical appearance had been addressed through cognitive behaviour therapy: CB 45;
(d)in considering corroborative material, the Tribunal is not obliged to refute, line by line, relevant material: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609 at [67] per McHugh J, nor is the Tribunal required to expressly refer to each and every individual piece of evidence provided by an applicant or make findings regarding each of those pieces of evidence: Yusuf at [67]-[68], [73]-[74], [77], [89] and [91] per McHugh, Gummow and Hayne JJ;
(e)in this case, the Tribunal clearly considered the Psychologist’s Report, expressly referring to it at CB 235 at [57], and there is simply no inference available that it, or any of its contents, were overlooked or misunderstood. The Tribunal was not required to expressly refer to and reject in its reasons the psychologist’s belief that BOX17 would be able to manage his anxiety to enable his successful reintegration into Sri Lankan culture provided he maintained the skills he had been taught under the circumstances nor the recommendation that he engage a mentor or counsellor. This is particularly so where BOX17 made no claim that he would be unable to maintain the skills he had been taught nor that he could not access a mentor or counsellor on return (to the contrary, BOX17 suggested to the Delegate that his mental health had improved: see CB 99). The Tribunal dealt with the claim that BOX17 claimed to fear harm on return on account of his mental health and physical appearance and no error is revealed.
Consideration of ground 1
It is well established that failure to consider an integer of an applicant’s claim may constitute jurisdictional error where that claim relates to a mandatorily relevant criterion under the Migration Act: Dranichnikov at [24]-[25] per Gummow and Callinan JJ; Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 (“Htun”) at [42] per Allsop J; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [47]-[50] per Judge Lucev. In Htun at [42] per Allsop J, it was said that “[t]o make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on”.
The Full Court of the Federal Court in Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 (“Singh – Full Court”) at [34] per Reeves, O’Callaghan and Thawley JJ observed as follows:
…a Tribunal charged with “review” may commit jurisdictional error in failing to exercise the jurisdiction it was contemplated it would exercise, if – for example – it does not engage in an active intellectual process or give proper, genuine and realistic consideration to:
•a “substantial, clearly articulated argument relying upon established facts” – see: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ, with whom Hayne J agreed;
•a claim “raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review” – see: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [63] per Black CJ and French and Selway JJ; or
•a matter “that is an essential integer to an applicant’s claim or that would be dispositive of the review” – see: ETA067 v The Republic of Nauru (2018) 360 ALR 228 at [14] per Bell, Keane and Gordon JJ.
The Tribunal is required to engage in an “active and intellectual process directed at the claim or criteria”: Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 (“Lafu”) at [45]-[46] per Lindgren, Rares and Foster JJ. While the Court can infer a failure to consider a claim if the Tribunal did not expressly mention a claim in the Tribunal Decision, it must read the reasons in the Tribunal Decision as a whole, but such an inference ought not too readily be drawn where the reasoning in the Tribunal Decision is otherwise comprehensive and the issue has at least been identified at some point: ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 (“WAEE”) at [47] per French, Sackville and Hely JJ. Further, it may be unnecessary to make a finding on a particular matter where it is subsumed in findings of greater generality: WAEE at [47] per French, Sackville and Hely JJ.
In EVA17 at [36] per Perry, Derrington and Wheelahan JJ the Full Court of the Federal Court observed as follows:
Undoubtedly, a failure to consider a relevant component integer of a claim may, in appropriate circumstances, constitute a jurisdictional error: BZAFB v Minister for Immigration and Border Protection [2018] FCA 995 at [9] per Flick J. Necessarily the decision-maker is also required to consider the claims and the integers thereof which are not expressly articulated but which necessarily arise on the materials before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [61]. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]-[47] French, Sackville and Hely JJ held:
[46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 62 ALD 225; 180 ALR 1 at [87]-[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
[47] The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
More factual material
Central to the claim made by BOX17 is the Psychologist’s Report. The Psychologist’s Report appears at CB 45 and provides as follows:
[Psychologist’s name, qualifications and registration details omitted]
Client: [BOX17], 29 year old male Sri Lankan.
Resident in Australia as a student and then graduate for six years.
I have been seeing [BOX17] sporadically for the last eighteen months.
He originally presented as moderately depressed and with a high level of anxiety. Initially he was living in his car and was anxious about his gambling habit. At this time he was also using alcohol and smoking cigarettes.
My initial sessions with him were used to provide him with methods of managing and reducing his anxiety. Also I provided support for reducing his substance abuse. Meditation and bio-feedback training were used and he improved significantly. His depression and anxiety were reduced to mild and moderate respectively.
At that point in his visits the underlying contributors to his anxiety and depression began to emerge. The pressure he was feeling because of his financial indebtedness due to his gambling and the consequent distortion of his relationship with his family back in Sri Lanka. Having spent the money they sent him for tuition fees on repayment of his debts.
The stress of dealing with the Australian Immigration authorities in relation to a visa which would enable him to gain work experience after graduating from his degree was compounded by his lack of cognitive clarity due to his pre-existing anxiety.
He contacted me after a break of eight months, in an effort to help him deal with his immediate level of distress. Hi efforts to gain a visa had not succeeded and it began to be clear that the cause of the anxiety was the reality of having to return to Sri Lanka after six years away he felt it would be difficult to re-integrate into Sri Lankan culture. He fears his family will place substantial emotional and psychological pressure on him.
Additionally, he has concerns about his physical appearance. His fears and concerns have been addressed through cognitive behaviour therapy. The intention was to prepare him to deal with the issues with which he will be confronted when he returns to Sri Lanka.
Provided he maintains the skills he has been taught I believe he will be able to manage his anxiety sufficient [sic] well to enable him to successfully re-integrate into Sri Lankan culture. But would strongly recommend he seek a mentor/counsellor outside his family domain. [BOX17] is a survivor, he has successfully completed tertiary studies in a foreign country, he sought help for his distress and has managed to find a way forward.
[Psychologist’s name omitted]
The Psychologist’s Report was accompanied by a letter from the psychologist concerned, dated 29 April 2013, appearing at CB 44, in which he said:
Dear [BOX17],
Here is the report you requested. I wish you well on your return to Sri Lanka.
Thank you for the opportunity to work with you. I hope that it has been of value to you in your future life.
You can always skype me at [Skype handle omitted]
Yours Sincerely
[Psychologist’s name omitted]
In April 2015, in the Delegate’s Decision at CB 96, the Delegate summarised BOX17’s claims, including claims that:
He has a significant number of acne scars on his face that prevent him from associating with friends, family and the community, resulting in a diminished level of mental health.
…
He fears he will not receive the mental health treatment he requires in Sri Lanka because the doctors in Sri Lanka “won’t understand” him.
In a letter of support dated 23 November 2016 the Homework and L2P Program Coordinator for South East Community Links (in Melbourne), appearing at CB 147, indicated that BOX17 was a current volunteer mentor for young people with a migrant background who were learning to drive, and that:
[BOX17] is a dedicated volunteer and has been supporting our program with great enthusiasm and passion. We have received very positive feedback from [BOX17’s] learners regarding his mentor support, which has formed strong healthy mentor/learner relationships over this time. [BOX17] is a resourceful mentor enhancing his learner’s driving skills as well as assisting them with their social and interpersonal skills. This includes remaining calm and composed in difficult or challenging situations. It is wonderful to have [BOX17] on our L2P program and given his cultural awareness, he is able to gain a strong rapport with our young people, especially those from migrant and refugee backgrounds. [BOX17] provides an excellent role model for many who do not have any positive role models in their lives. He reinforces the importance of community work and volunteering and is an inspiration to his learner and the broader community.
In a post-Tribunal Hearing submission made on 10 March 2017 by the Pastor who appeared with, and as a witness for, BOX17 at the Tribunal Hearing, having set out material in relation to the persecution of Christians by Buddhists in Sri Lanka and the possibility that BOX17 was at risk from “both family and friends” if he returned to Sri Lanka, the Pastor also observed, at CB 167, that (reproduced unaltered):
My other concerns is previous mental health issues (anxiety, depression) including suicide risk and the effect that stress that can have on him if he moves back to Sri Lanka.
In the Tribunal Decision on 24 March 2017:
(a)at CB 228 at [19]-[20] the Tribunal said as follows:
19.The applicant made the following claims in his application. He left Sri Lanka to study, his brother financing this. He had bad habits in Australia such as gambling, drinking and smoking, so he had to borrow too much from him. His brother is really angry at the applicant and tried to hit him. He believes his brother will kill him because he is so upset. His brother is powerful and connected with politicians. His father will not let him go home. He does not have any work experience and will find it hard to get work. Many hotels are near his family home and his friends and family will reject him. He has difficulty in the community because of his facial appearance, caused by acne scars. He may kill himself because of his face condition and being ostracised. It will be too hard to go back after so much time in Australia. He has a bad mental health condition and won’t get good treatment in Sri Lanka as the doctors would not understand him.
20.The applicant provided a psychological report from April 2013. He saw a psychologist to assist reducing his anxiety and substance abuse (alcohol). He has concerns with reintegrating into Sri Lankan society. However the psychologist believes that he would be able to manage his anxiety sufficiently well to successfully re-integrate into Sri Lankan culture. The psychologist wished him well on his return to Sri Lanka. He also provided a business card for ‘[name omitted] counselling centres’ where the applicant claims he has attended for mental health treatment on twelve to fifteen occasions.
(Footnote omitted)
(b)at CB 229 at [25] the Tribunal said as follows:
The delegate considered the applicant’s claims arising out of his family relationships, including the debts and potential to continue the family business; his friendship with ‘[name omitted]’ and ‘[name omitted]’; his mental health issues; and his reintegration concerns. The delegate noted the delay in lodging the protection visa application. The delegate noted that the applicant had returned to Sri Lanka on two occasions. The delegate determined that the applicant was not owed protection obligations.
(c)at CB 229 at [28] the Tribunal referred to the Post-Tribunal Hearing Submission concerning BOX17’s conversion to Christianity. In the context of his coming from a strict Buddhist family, and there being some indications and information concerning Buddhist hostility to Christians, in Sri Lanka, the Tribunal said as follows:
The thought of returning to Sri Lanka causes stress to the applicant. The submission noted that the applicant had made a significant contribution to the community, including for those with a Sri Lankan background and more broadly.
(d)at CB 234-235 at [55]-[57] the Tribunal said as follows:
55.The applicant also raised the issue of his appearance. His face is visibly affected by acne blemishes, and the applicant has expressed a concern regarding how he would be treated because of his appearance. The applicant noted that he had this problem in Sri Lanka, and occasionally people would comment upon it, making jokes about it. He saw a plastic surgeon about it on his return to Sri Lanka who told him there was nothing that could be done. The applicant stated he did not receive such comments in the community in Australia. The Tribunal confirmed he had worked in Sri Lanka prior to coming to Australia with such an appearance.
56.The Tribunal is sympathetic to the applicant’s desire not to be spoken to rudely or in a joking manner because of his appearance. However the Tribunal does not consider that being spoken to in this manner claimed constitutes serious or significant harm as defined in s.91R(2) and s.36(2A) of the Act. The Tribunal has considered whether the applicant’s appearance may cause him to be discriminated against on his return to Sri Lanka. The Tribunal does not accept that the applicant will be discriminated against or ostracised by the community because of his appearance on his return to Sri Lanka. The Tribunal notes that the applicant has come to Australia and completed a number of relevant qualifications in Australia, in cookery, hospitality management and in business that provides him with a suite of skills that he would be able to use on his return to Sri Lanka. The Tribunal considers that the applicant’s appearance will not stop him from gaining employment in these fields given his qualifications, qualifications that were the reason for the applicant coming to Australia in the first place. The applicant, even with his concerns about his appearance, came to Australia to gain these qualifications in the first instance. The Tribunal considers that the applicant will be able to live freely and work as he chooses in Sri Lanka despite his concerns about his appearance, and will not be ostracised or discriminated against for this reason. The Tribunal does not accept that the applicant will harm himself because of his appearance. The Tribunal finds that the applicant does not face a real chance of serious harm or a real risk of significant harm for this reason.
57.The Tribunal has considered the applicant’s health concerns more broadly. The Tribunal notes that the applicant’s own psychologist had provided a letter, as given to the Department, that demonstrated he would be able to manage his anxiety on return to Sri Lanka and successfully integrate back into society. The Tribunal considers that the applicant does not have a real chance of serious harm or a real risk of significant harm for this reason.
(Footnote omitted)
(e)the Tribunal dealt with the claim made by BOX17 concerning the risk posed to him on return to Sri Lanka by his conversion to Christianity whilst in Australia, and the Tribunal having discussed issues such as accommodation, employment (in the tourism and hospitality industry), and the existence of suitable Christian communities for BOX17 to join, particularly in areas where the tourism and hospitality industry might afford him employment, further noted that BOX17 “has the skills to assist him in dealing with his anxiety issues, as detailed by his psychologist”: CB 237-238 at [70]; and
(f)at CB 242 at [91], in the context of a possible Ministerial Referral, the Tribunal said as follows:
The applicant and his supporters have provided information detailing the applicant’s involvement in his local community. The applicant appears to be a popular and active member of the Syndal Baptist Church and surrounding outreach activities. The applicant’s actions in the community are to be commended, the letters of Pastor [name omitted] and [name omitted] of South East Community Links both detail the contributions he has made in the area over the last few years. The applicant has been in Australia for an extended period, since 2006, and has made some strong connections to the community after a period of waywardness, and the information would demonstrate that his experiences have become the catalyst to assist other vulnerable people in the community, in particular from migrant backgrounds.
Whether the claim was made
In the Court’s view, the Tribunal set out the claims made by BOX17 and the factual material relevant to those claims. The summary provided of the Psychologist’s Report at CB 235 at [57], and what was said in relation to the Psychologists Report at CB 237-238 at [70], were not inaccurate renderings. Those passages demonstrate that the Tribunal considered the issue of how BOX17 would cope upon return to Sri Lanka, and whether he could reintegrate into Sri Lankan society, or some part thereof. Ground 1 advanced on behalf of BOX17 argues that the Tribunal needed to go further, and consider an alleged claim as to whether in order to cope upon return to Sri Lanka BOX17 would be able to, first, maintain the skills he had been taught by the psychologist, or, second, find the requisite mentor or counsellor, outside of his family domain, to assist him.
There was here no substantial, clearly articulated argument relying upon established facts to suggest that BOX17 would not maintain his skills, or not be able to find, in the event that he needed to do so, the requisite mentor or counsellor to assist him. There was no actual claim that BOX17 would not maintain his skills or be able to find a mentor or counsellor to assist him. The terms of the Psychologist’s Report, which is short, just a single page, do not posit any claim or suggestion, or any evidence, that BOX17 would not maintain his skills or be able to find a mentor or counsellor to assist him. And, despite a plethora of material subsequently submitted to the Tribunal, both pre-and post-Tribunal Hearing, concerning a variety of matters and, in particular, the possibility that BOX17 might be persecuted by Buddhists in Sri Lanka as a consequence of his conversion to Christianity, nowhere does that material make a claim or suggest, or provide evidence, that upon return to Sri Lanka BOX17 would not maintain his skills or be able to find a mentor or counsellor to assist him.
It follows that the Court is of the view that the claim that BOX17 would not maintain his skills or be able to find a mentor or counsellor to assist him was not made. Nor can such a claim be inferred from the material before the Tribunal: there is, as set out above, no evidence in the materials before the Tribunal to suggest that BOX17 would not maintain his skills or be able to find a mentor or counsellor to assist him, and no such contention was, it seems, put before the Tribunal. Thus, even if such a claim had been made, there was no evidence in the materials before the Tribunal that would have enabled it to have been made out.
The claim that was made, that upon return to Sri Lanka BOX17 might once again suffer anxiety or depression, with its claimed associated consequences, was plainly set out by the Tribunal: CB 228 at [19]-[20] and 229 at [25] and [28], and dealt with by the Tribunal by reference, amongst other things, to the substance of the single page Psychologist’s Report: CB 234-235 at [55]-[57] and CB 237-238 at [70]. It is plain that the Tribunal had read the single page Psychologist’s Report, and it was unnecessary for the Tribunal to set out or quote all of its content: WAEE at [46] per French, Sackville and Hely JJ. There was no failure here by the Tribunal to appreciate the nature of BOX17’s claim: contrast EVA17 at [39] per Perry, Derrington and Wheelahan JJ.
It follows that ground 1 is, therefore, not made out and does not establish jurisdictional error in the Tribunal Decision.
CONCLUSION AND ORDERS
The Court has concluded that ground 1 is not made out and does not establish jurisdictional error in the Tribunal Decision. It follows that the Further Amended Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 29 April 2022
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