BTI19 v Minister for Home Affairs
[2021] FCCA 1450
•28 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
BTI19 v Minister for Home Affairs [2021] FCCA 1450
File number(s): MLG 1275 of 2019 Judgment of: JUDGE RIETHMULLER Date of judgment: 28 June 2021 Catchwords: MIGRATION – judicial review – no matters of principle – application dismissed Legislation: Migration Act 1958 (Cth), ss. 473CB, 473DC, 473DD, Part 7A Cases cited: CAK19 v Minister for Home Affairs and Anor [2020] FCCA 1251
Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044
Minister for Immigration and Border Protection vMZYTS [2013] FCAFC 114
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FOE17 [2020] FCAFC 73
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30
SZJTQ v Minister for Immigration and Citizenship [2008] FCA 1938
Number of paragraphs: 48 Date of last submissions: 18 March 2021 Date of hearing: 18 March 2021 Place: Melbourne (via Microsoft Teams) Solicitor for the Applicant: Victoria Legal Aid Counsel for the Applicant: Mr Tito Solicitor for the Respondents: Clayton Utz Counsel for the Respondents: Mr Hibbard
Table of Corrections 2 July 2021 Applicant's name removed from paragraphs 25 and 26 ORDERS
MLG 1275 of 2019 BETWEEN: BTI19
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE RIETHMULLER
DATE OF ORDER:
28 JUNE 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $7,467.00.
REASONS FOR JUDGMENT
(As Corrected)JUDGE RIETHMULLER:
The applicant in this matter seeks judicial review of a decision of the Immigration Assessment IAA (‘the IAA’), which affirmed a decision of a delegate to the Minister to refuse to grant the applicant a Safe Haven Enterprise (‘SHEV’) visa. At the hearing in this court the applicant was represented by Victoria Legal Aid, as he was in detention on Christmas Island.
BACKGROUND
The applicant is a 22 year old citizen of Sri Lanka who arrived in Australia on 24 November 2012. On 16 March 2013, the applicant completed an entry interview and subsequently applied for a SHEV (Safe Haven Enterprise Visa) on 27 May 2016: see paragraph [1.3] of the Applicant’s submissions dated 3 March 2021.
On 5 May 2017, a delegate of the Minister refused to grant the visa. On 3 November 2017, the IAA, with a different reviewer, affirmed the decision not to grant the applicant a protection visa.
On 7 December 2017, the applicant applied for judicial review of the IAA’s decision. On 8 February 2019, this court quashed the decision and remitted the matter back to the IAA, based on its failure to have regard to the evidence of the applicant’s family member, who remained in Sri Lanka: see paragraph [6] of the IAA’s decision.
On 2 April 2019, the IAA (constituted by a different Member) upheld the delegate’s decision to refuse the applicant’s visa application. On 30 April 2019, the applicant applied for judicial review of the decision: see paragraph [1.4] of the applicant’s submissions dated 3 March 2021.
Applicant Case
The IAA sets out a summary of the applicant’s claims at paragraph [15] and following of the decision:
The applicant was born in 1998 and lived in Sri Lanka as a minor under the care of his sister, Tharmini (T) and her husband Parasuraman (P). P was a wealthy businessman involved in road and other construction. He had a contract to build a road in Vakarai. Tand P attracted the attention of the Karuna Group after P assisted a local Tamil political candidate with his election campaign by putting up posters and asking for votes.
At the end of October 2012, the applicant was home alone when a group of men came to his home and started searching the house. A local man with a gun asked the applicant in Tamil about the whereabouts of the family. The applicant told him they were at his mother's house. The man then threatened him that next time he saw him and his family, he would kill them. The man then hit the applicant. The applicant assumes that the man thought he was P's son.
The men went to his mother's house and questioned his cousin about the whereabouts of P but they were not harsh with her. Later that night T, P and their child arrived home but decided to flee to temporary accommodation in Vakarai. P transferred his work contract and 15 days later they all caught a boat to Australia. When he told his mother what happened, his mother told people that T had gone into hiding or to some foreign country.
The applicant fears returning to Sri Lanka because he will be abducted, harmed or killed by the Karuna Group. This is because of his association with P, a wealthy Tamil businessman and a known opponent of the Karuna Group who supported a Tamil opposition candidate. He also fears he will be suspected to be a LTTE supporter.
Another older sister was "disturbed or persecuted" by unidentified persons and has gone into hiding or left the country. His mother is in hiding.
The applicant has had difficulty continuing his education because of his mental health, depression and anxiety and has attempted suicide on three occasions. He would face economic hardship and lack of access to mental health services.
He is a failed Tamil asylum seeker who departed illegally and he is at greater risk of harm because of his mental illness.
The applicant’s submissions filed on 3 March 2021 summarise his case as follows:
1.5 The Applicant first articulated his claims in his entry interview where he said that he came to Australia because:
i. he lived with his sister and she had a problem and decided to leave;
ii. he had a problem with the Karuna group, who had slapped him once and attacked people; iii. the Karuna group came to his house and were looking for his sister’s husband and they asked him where he was;
iv. he said he didn’t know, and they slapped him; and
v. these events happened three weeks before he and his sister left Sri Lanka.
1.6He subsequently provided a statutory declaration accompanying his SHEV application in which he said that:
i. his sister’s family, with whom he lived, had some trouble with the Karuna group;
ii. he understands it was to do with the Tamil political candidate from his province;
iii. the Karuna group had warned his brother in law not to support the Tamil candidate, but his brother in law had been involved in the campaign;
iv. about 15 days before he left Sri Lanka, the Applicant was home alone when a group of men came to his home and started searching the house. They were carrying guns. One of the men said to him in Tamil “Where is the family?” and the Applicant responded that they were at his mother’s house. The man then threatened him, saying that next time he saw him and his family, he would kill them. The man then hit the Applicant with a closed fist across the face. The Applicant assumes that the man thought that he his brother in law’s son;
v. he learned that the men later went to the Applicant’s mother’s house and questioned his cousin about where the family was;
vi. later that night his sister and brother in law returned home and after learning about what happened, they decided to flee to temporary accommodation in Vargarai;
vii. 15 days later they left Sri Lanka by boat
1.7 On 13 January 2017, the Applicant attended a protection visa interview, where it is recorded that he said:
i. that his ‘big sister’ (a different sister to the one he fled Sri Lanka with) had been ‘disturbed by unidentified people’ and that his mother told him that she had gone ‘into hiding or to some foreign country’
ii. that his brother in law had issues with the Karuna group because:
a. he was doing road contracts; and
b. he was helping someone in the elections;
iii. his brother in law supported the Tamil political candidate by putting up posters, visiting houses and asking for votes;
iv. that when the man punched him in the face the man said he would kill the whole family and that the Applicant believed that if he went back to his mother’s house he was putting his mother’s life in danger; and
v. that the Karuna group had members in the village who would be able to identify him and harm him if they chose.
1.8 Following the interview, the Applicant’s representative sent the IAA a submission and through those materials, he expressed a fear of harm:
i. from the Karuna group, on the basis of imputed political opinion, being an imputed political opponent of the Karuna group, anti-government or a supporter of Tamil political candidates;
ii. from the Karuna group, on the basis of his imputed political opinion, being an imputed supporter of the LTTE;
iii. from the Karuna group, on the basis of his Tamil ethnicity;
iv. on the basis of his Tamil ethnicity;
v. due to his membership of a particular social group, being a family member of a perceived wealthy business man;
vi. due to his membership of a particular social group, as an individual suffering with poor mental health who has attempted suicide; and
vii. from the Sri Lankan Government as a failed asylum seeker.
1.9 After the Federal Circuit Court quashed the first decision of the IAA and remitted the matter, the Applicant’s representative provided a submission to the IAA, which was supported by a further statutory declaration dated 14 March 2019. Through those materials, the Applicant expressed that he continued to rely on the claims he had articulated to date and that:
i. he believed that the Delegate did not take into account the full extent of his mental illness;
ii. the symptoms of his mental health problems had worsened during his time in Australia and, in particular, after he was taken back into immigration detention when his bridging visa was cancelled in 2017;
iii. his representative requested time to obtain and submit medical records from International Health & Medical Services (IHMS) in relation to the Applicant’s mental health while in detention; and
iv. he sought an opportunity to explain his statutory declaration in person.
The IAA’s Findings
The IAA had regard to material provided by the Secretary pursuant to section 473CB of the Migration Act 1958 (Cth) (‘the Act’): see paragraph [4] of the decision.
The IAA received submissions from the representative of the applicant dated 16 March 2019, including a statutory declaration by the applicant. The IAA found, with respect to the new information, at paragraph [7] of the decision, that:
I have taken into account all of the arguments and reasons but I am not satisfied that there are exceptional circumstances to justify considering this new information contained in the statutory declaration. Nor am I satisfied that it is credible, personal information, which was not previously known, and had it been known, may have affected the consideration of the applicant's claims. Nor am I satisfied that it could not have been provided to the delegate before he made his decision. Whilst the applicant was young when he arrived in Australia, I note that his SHEV application with his written statement was lodged only a short period prior to his 18th birthday and that he was an adult when the SHEV interview took place. I further note that the applicant was represented in the preparation of his SHEV application and at the SHEV interview and that a large and detailed post-interview submission was made by his representative. I also note that the delegate did not make a decision for over three months after this interview. Whilst I note the applicant at the SHEV interview referred to an older sister being "disturbed and persecuted" by unidentified people and that his mother had told him that she had gone into hiding or to some foreign country and that the delegate did question him about this, I am not satisfied that the applicant who was represented throughout all of the primary stage was not given the opportunity to provide more evidence about these claims.
…
I do not accept, in all the circumstances, that the applicant's explanation that that he was told by people smugglers and his brother in law that the information needed to be simple and consistent between his sister, brother-in-law and himself and that he focused on the immediate circumstances which caused them to leave Sri Lanka and that he was told that this was only the information that was relevant and not to cover any other matters and that he believed until recently that what happened to his wider family could not assist his claim for protection is plausible or credible. I have taken into account his limited English skills and limited education, plus his mental health issues and multiple suicide attempts and that he had no legal representation following the refusal of his visa application as well as that he was detained in Australia for over a year but I do not accept that these are satisfactory explanations for his failure to make such critical claims.
That IAA determined, with respect to new information about the applicant’s mental health and treatment, at paragraph [9] of the decision that:
I am satisfied that there are exceptional circumstances to justify considering this new information. I satisfied that it is credible, personal information, which was not previously known, and had it been known, may have affected the consideration of the applicant's claims.
With respect to the information from the Department of Health concerning personality disorders, the IAA was not satisfied that it was personal information. However, regarding the December 2018 information, the IAA was satisfied, at paragraph [10] of the decision that:
This post-dates the delegate's decision and I am satisfied that that it could not have been provided to the delegate before he made his decision. I am satisfied this information is from an authoritative source and is important in understanding the applicant's circumstances and in assessing his claims and I find that there are exceptional circumstances to justify considering this new information.
The IAA found with respect to the applicant’s credibility at paragraph [11] of the decision that:
The submissions argue that if the IAA has any doubts about the applicant’s credibility or vulnerability, he should be called for a further interview. However, I am not satisfied that the applicant (who was represented throughout the primary stage) was not given a reasonable opportunity to put forward his claims at the primary stage including at interview and I have taken into account his mental health problems in making my decision. I note that the IAA when reviewing fast-track reviewable decisions is required to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review). In all the circumstances, including taking into account his mental health problems, I have decided not to get information either in writing or interview under s 473DC of the Act.
In terms of the International Health and Medical Services (‘IHMS’) records, the IAA determined that:
12. In the submission it is stated that the representatives are in the process of obtaining more recent detention health records from the IHMS in relation to the applicant’s mental health as his vulnerability and mental health are a key element in assessing his chance of facing serious harm as well as his credibility and it is requested that the IAA delay making a decision until this information is provided. However, substantial evidence of his mental health problems has been provided which I have taken into account this in making this decision and no period has been specified as to when this further information will be provided. Accordingly, I have proceeded to decision without waiting for an indefinite period for this information to be provided and have decided not to get new information of this nature under s.473DC of the Act.
The IAA had regard to new country information which post-dated the delegate’s decision and found at paragraph [13] of the decision that:
I am satisfied it was not and could not have been provided to the delegate before he made his decision. I am also satisfied that there are exceptional circumstances to justify considering this information.
The IAA’s findings
The IAA gave additional consideration to the applicant’s country information and found at paragraph of the decision [26] that:
Whilst the country information indicates that the applicant may face a low risk of societal or official discrimination due to being a Tamil, given his profile and particular circumstances, I do not accept that there is a real chance that he will face serious harm upon return at the hands of the Sri Lankan authorities, the Karuna Group/Pillayan Group/TMVP or anyone else for any of the reasons claimed singly or in combination including his ethnicity, his religion, any imputed political opinion (anti-government, pro-Tamil, pro-L TTE), his family and his association with P or variants of these.
With respect to the applicant’s mental health and family support , the IAA determined that:
30. The applicant has not provided any information as to why any of his siblings are unable or unwilling to provide any assistance (financial or otherwise) to him. He has not provided any information as to where the ones in Sri Lanka are disbursed to; nor has he provided any information as to their particular financial or personal circumstances. The applicant has had the opportunity to provide additional information to the IAA on these matters but has not done so.
31. There is nothing before me to indicate that mental health services would be discriminatorily withheld from the applicant for any reason mentioned in s.SJ(l)(a) if he required these upon return to Sri Lanka. Given the country information considered as a whole, I find that any difficulties he may encounter accessing mental health services would be due to a lack of resources. If the applicant is not able to obtain mental health treatment sufficient for him to be well enough to work, I find this would not involve systematic and discriminatory conduct by any other party as is required under s.SJ(4)(c).
32. I find that the applicant would not face a real chance of being persecuted upon return to Sri Lanka due to any difficulties he may encounter in accessing mental health services. I find that any difficulties he may experience accessing mental health treatment in Sri Lanka would not involve systematic and discriminatory conduct as is required under s.SJ(4)(c). Whilst I accept that he may face some level of social stigma and discrimination (including in employment) on account of his mental health, I find this would not amount to serious harm.
The IAA had regard to the claim that he would be a failed Tamil asylum seeker who departed illegally and found that:
42. I have taken into account that the applicant has significant issues with his mental health, but I am not satisfied that the questioning, brief detention, the imposition of a fine, monthly reporting and any associated court costs if they arise would constitute serious harm to him. I am not satisfied that the applicant faces a real chance of serious harm due to his illegal departure from Sri Lanka.
43. In any event, country information does not support that the l&E Act is discriminatory on its face or that it is applied or enforced in a discriminatory manner. I find that it is a law of general application that is not applied or enforced in a discriminatory manner and not for reasons of race, religion, nationality, membership of a particular social group or political opinion and therefore does not constitute persecution.
The IAA also gave consideration to the complementary protection provisions and determined that the applicant would not face a real chance of serious harm at paragraph [51] of the decision, setting out:
… While I have found above that the applicant will not receive a custodial sentence, I have considered the conditions the applicant may face if he is held while waiting to come before the magistrate. The evidence of DFAT does not indicate that any prisoners subject to short periods of detention and awaiting prosecution under the I&E Act have been subject to the death penalty or have been otherwise arbitrarily deprived of their life or that they have been tortured. There is also no indication that authorities or others, through any act or omission intentionally inflict pain or suffering such as to meet the definition of cruel or inhuman treatment or punishment, nor any intention to cause extreme humiliation. I am not satisfied that there is a real risk that the applicant will be arbitrarily deprived of his life, be subject to the death penalty or be subject to torture. Nor does the evidence before me indicate that there is a real risk that he will be subjected to cruel or inhuman treatment or punishment or degrading treatment or punishment. I am not satisfied the applicant faces a real risk of significant harm for any reason.
GROUNDS FOR JUDICIAL REVIEW
The applicant filed an Application on 30 April 2019 setting out 2 grounds, and filed an Amended Application on 3 March 2021 setting out three much more detailed grounds, however, only grounds 1 and 2 were pressed at the hearing before me.
The applicant submitted that there are really two questions underpinning the application:
(1)Was it legally reasonable to proceed without all of the medical records? (‘Ground 1’); and
(2)Did the IAA fail to consider the applicant’s claim that he would be unable to subsist? (‘Ground 2’).
Ground 1
Ground 1 is framed as follows:
1. The failure of the Immigration Assessment IAA (the IAA) to refrain from making its decision until it had mental health records was legally unreasonable.
Particulars
1. In submissions dated 16 March 2019, the Applicant’s representative informed the IAA that it had sought recent detention health records from the International Health & Medical Services (IHMS). The representative noted that the records were important to the Applicant’s case and requested that no decision be made until the records were available.
2. Approximately two weeks after the request from the representative and without any response to the representative’s request, the IAA published its reasons for decision.
3. In the context of a long procedural history more than 2000 days as well as the centrality of the Applicant’s mental health while in detention to his claims to engage Australia’s protection obligations, the IHMS records were critical to the lawful performance of the IAA’s statutory task.
4. The IAA’s failure to wait until the IHMS records were produced before making its decision was legally unreasonable.
5. Further or alternatively, the IAA’s failure to exercise its discretion under the Migration Act 1958 (Cth) (the Act) to get the information was legally unreasonable.
The applicant submits (in a submission dated 16 March 2019), that their representative informed the IAA that it was in the process of obtaining recent detention health records from IHMS in relation to the applicant’s mental health. The representative requested that no decision be made until the records were available. At Court Book (‘CB’) 335 is the letter from the applicant’s representatives, dated 16 march 2019, advising him that they had requested his health records, saying:
In addition, we are in a process of obtaining further more recent detention health record from the IHMS in relation to his mental health. As will be submitted below as well as in our legal submission, his vulnerability and mental health issues are a key element in assessing his chance of facing serious harm in Iran as well as his credibility, as such we request that no decision be made on this case until more recent information on his mental health will become available. (emphasis added)
When the records were actually requested is not apparent from the evidence. There is no report from a psychiatrist in the court book, and no recent report was put to the IAA. The IAA made a decision two weeks later without the IHMS records.
The applicant argues that in the context of this particular case, the conduct of the IAA was legally unreasonable, pointing to the following (set out in the written outline):
… a backdrop of multiple suicide attempts and a claim that the Applicant’s mental health had worsened after he was taken back into immigration detention in 2017, the IHMS records were critical to the Authority’s task. That is particularly so given that the Applicant expressly claimed to engage Australia’s protection obligations on the basis of the detention he was likely to encounter upon being returned to Sri Lanka. In such circumstances, records about the mental health condition of the Applicant while detained would have allowed the Authority to properly evaluate the Applicant’s claim to fear serious mental harm if detained in Sri Lanka.
2.3 The Applicant first arrived in Australia on 24 November 2012. 2,321 days had elapsed between that date and the date that the Authority published its Reasons on 2 April 2019. In such circumstances, it is ‘truly remarkable’ that the request to await the critically important IHMS records could not be accommodated.
2.4 Nor was it legally reasonable for the Authority to refuse to wait for the IHMS records because the Applicant’s pro bono representative had not provided a precise date on which the records would be sent to it. Clearly, the representative had requested the records from IHMS and had undertaken to provide them as soon as they were available.
2.5 The Authority’s error was material. Although it tried to pre-emptively address this by noting at [12] of its Reasons that “substantial evidence of [the Applicant’s] mental health problems [had] been provided”, the IHMS records were plainly different to any evidence that had been provided to date. Unlike statements or reports produced after the fact, the records were contemporaneous accounts of the Applicant’s mental health episodes while in detention. Clearly, the Authority could have come to a different conclusion on Australia’s protection obligations if it had the IHMS records before it. The failure to wait for them to be produced or, in the alternative, to exercise its discretion to obtain the information itself was legally unreasonable.
The applicant’s case rests heavily upon issues concerning his mental health. The applicant set out a claim at CB127 (a submission after his interview) that:
During the interview [the applicant] advised the decision maker that he has been suffering with poor mental health, that he has attempted suicide three times, and was required to be hospitalised for an extended period due to his risk of self harm.
The Applicant noted (at CB136) that he was likely to spend a period in custody for the offence of illegally departing from Sri Lanka upon his return to his home country. The claim that he would likely be detained at the airport was accepted by the IAA at paragraph [4] of the decision. At CB142, the applicant raised concerns about a period of detention, saying:
We submit that [the applicant]’s fragile mental state, and the severe psychological deterioration he will suffer upon coming into contact with authorities will render him so vulnerable that the punishment and treatment he will face in prison, even while on remand for a short period, will rise to the level of degrading treatment.
However, I note that the judicial review claim was not put on the basis that the IAA failed to have regard to the severity of the applicant’s mental health problems. It was submitted that the claim was specifically with respect to the effect of incarceration. The applicant wished to rely upon his past conduct and the impact upon him of his period of detention.
The applicant argues that the most up to date information should have been before the IAA, referring to Minister for Immigration and Border Protection vMZYTS [2013] FCAFC 114 (‘MZYTS’). Describing MZYTS in such terms is overly simplistic. In MZYTS the relevant information was before the Tribunal (from a post hearing submission), but was not considered by the Tribunal in the decision. The reason that the post hearing information in MZYTS was so significant was that it was more recent country information and showed that the situation was different to that set out in the older information the tribunal relied upon. The decision is not authority for the abstract proposition that a Tribunal is obliged to seek out the most recent information.
In the present case, the relevant records were not put before the IAA, and there is no evidence that they are likely to contain materially different information to that upon which the tribunal relied. To read the comments in MZYTS (and SZJTQ v Minister for Immigration and Citizenship [2008] FCA 1938) as necessarily requiring a decision maker to make further enquiries or grant adjournments, is to read the comments out of context.
In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FOE17 [2020] FCAFC 73 the Full Court of the Federal Court of Australia (‘FCA’) considered the obligation upon a decision maker to seek more information and said:
54. In Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184; (2017) 256 FCR 235 the appellants argued that the Tribunal was obliged, in conducting its review, to undertake inquiries by exercising its power to summons witnesses. That ground was rejected. In doing so, after referring to Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 ; (2009) 259 ALR 429 (SZIAI) at [25], the Full Court (Dowsett, Pagone and Burley JJ) said at [33]:
There is no general obligation to make inquiries, but as Kenny J noted in Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151 at [60], an obligation may arise in “rare or exceptional circumstances”. The mere fact that it may have been reasonable to make an inquiry does not mean the lack of such an inquiry amounts to a jurisdictional error; SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 at [30] (Bennett J); MZZGB v Minister for Immigration and Border Protection [2014] FCA 1052 at [63] (White J); Singh v Minister for Immigration and Border Protection [2017] FCA 1285 at [64] (Murphy J).
In the present case, the IAA had extensive information about the applicant’s mental health before it, and accepted that he suffered from mental illness, saying:
27. The applicant's statutory declaration includes information about his mental health and he has submitted that medical records from Western Health which detail attempted suicide incidents, the prescription of medication and records that he has been diagnosed with cluster B personality disorder with chronic PTSD symptoms. I accept that the applicant has mental health problems and that he has been diagnosed as described in these reports and that he has been prescribed medication and has had multiple suicide attempts. I accept that he has been diagnosed with anxiety, depression and panic disorders. I accept that after his father died, his mother did not have enough income to feed the family and that he often spent time with various extended family members and that he knew his mother suffered from worry about this and this increased his anxiety and sadness. I accept that when he was in Sri Lanka, he saw homeless war victims with terrible injuries and that he experienced tension and had difficulties with sleeping and bad dreams. I accept that he had difficulties with his schooling and breathing and he suffered anxiety symptoms. I accept that the events of 2012 (including his assault and the threat made to him) exacerbated these problems. I accept that since coming to Australia, he again suffered problems with schooling, sleeping, self-harm, bad dreams, anxiety and depression. I accept that he broke up with his girlfriend and fought with his sister. I accept that he has received mental health treatment and medication from Australian health services. I accept that he has had anger problems and was involved in a brawl and ended up being hospitalised and became dependent on sleeping medication after being brought back into immigration detention after his bridging visa was cancelled. I accept that his treatment has been effective and since being released from detention he was able to stop taking medications and obtain work as a packer.
28. I have taken into account the submitted information from the Department of Health that personality disorder refers to a long-term pattern of thinking, behaviour and emotion that is extreme and inflexible and that it causes distress and makes it difficult to function in everyday life and that some people with it may appear withdrawn, some dramatic and emotional, and others odd or eccentric and that persons with it find it hard to change their behaviour or adapt to different situations. I have considered carefully the submitted country information related to the limited provision of mental health services in Sri Lanka and I accept that mental health stigma exists in Sri Lankan society. The applicant has referred to an article from the Colombo Telegraph which states that patients are subjected to discrimination, especially by employers, which has only proven to exacerbate the condition. Self-stigmatisation has led to significant delays in seeking aid; patients were often withdrawn opting for secrecy rather than disclose any emotion.
The issue in this case is more appropriately categorised as a question of whether the IAA acted unreasonably in failing to grant the applicant’s representatives time to obtain further medical records, in circumstance where there was already extensive material before the IAA. There was no explanation for what it was hoped the records would demonstrate that was different to the material already before the IAA, and there was no time frame given for obtaining those records
The applicant relied upon my decision in CAK19 v Minister for Home Affairs and Anor [2020] FCCA 1251 (‘CAK19’), which concerned a request for time to submit an expert report by a psychiatrist. Significantly, in that matter, the psychiatrist’s appointment with the applicant (which required the psychiatrist to attend at a detention centre) was scheduled for 10 days after the request for an extension of time, and the report was expected to be provided to the IAA only 6 days after that. The solicitor handling the matter was concerned about the applicant’s mental health and there was no psychiatric report before the IAA. The context was set out in paragraphs [20] to [24] of the decision:
20.In this case, after a delay of over 960 days since the delegate’s decision (involving two judicial review applications, an appeal to the Full Court of the Federal Court and a Special Leave application to the High Court, where the applicant has succeeded in each judicial process) the Practice Direction time frames were of limited use, other than to reinforce that decisions should be made expeditiously. Given the time this matter has taken it is hardly surprising that there would be a desire to put further information before the IAA. In addition, the underlying nature of the issues has also changed considerably over the years such that mental health issues are now central to the claim.
21. Given the small delay in this case (and the notorious fact that it is difficult to obtain psychiatric reports in short time frames and pro bono), it was inappropriate to be critical of the solicitor’s letter, especially without asking for particulars from the solicitor.
22. The material was plainly likely to be relevant as the applicant’s mental health was a central issue in the decision of the IAA.
23. It is truly remarkable that a request of a further 11 days for a professional report being undertaken expeditiously and pro bono (the psychiatrist attending the detention centre on a Saturday) would be refused. Whether the report would ultimately have been received depended upon decisions that the IAA had to make under ss 473DC and 473DD of the Act.
24. The conduct of the IAA in this regard was legally unreasonable. It lacks any intelligible justification. No reasonable decision maker would deny a person a further 11 days, after delays of over 960 days, when they are seeking to provide an expert report which has already been arranged, addressing a central issue in the proceedings, even in the context of the strictures of ss 473DC and 473DD.
The facts of the present case fall far short of the circumstances that arose in CAK19.
On the material before the IAA, it was open to the IAA to make the decision that it did refusing to grant an indefinite delay in the context of this case, particularly given the material before the IAA which led to the IAA accepting the nature of the applicant’s condition.
Ground 2
The second ground is set out as follows:
2. The IAA artificially constrained its review by failing to consider an integer of the Applicant’s claim to fear serious harm.
Particulars
1. On 16 March 2019, the Applicant’s representative provided a submission and statutory declaration to the IAA arguing that the Applicant’s claim to fear serious harm was bolstered by his lack of support in Sri Lanka (the materials).
2. The IAA regarded that materials as new information and assessed them against the criteria of ss 473DC and 473DD of the Act.
3. In fact, the materials did not contain new information but rather contained an argument about the manner in which Australia’s protection obligations were engaged based on information that was before the First Respondent.
4. In determining that the materials did not satisfy 473DC and 473DD of the Act, the IAA unreasonably constrained its review by failing to have regard to an integer of the Applicant’s claims to fear serious harm.
The submissions that the applicant refers to in particular (a) of this ground are reproduced at CB335. Those submissions run for pages. The submissions also attach a further statutory declaration which appears at CB346.
The IAA considered the material in the context of the constraints imposed by s. 473DC and 473DD of the Act, saying, in two (inconveniently long) paragraphs:
6. The submissions include a statutory declaration of the applicant, dated 14 March 2019 which has new information contained within it. The declaration contains significant new claims including that of his brother’s and his cousin’s involvement in the Liberation Tigers of Tamil Eelam (LTTE) and of family members being targeted and harmed because they had helped hide these individuals and that most of his family have fled overseas or he has lost contact with them and that he has no one to help with accommodation or support. The declaration and the representative’s submissions contain a number of arguments as to why this new information should be considered. The applicant states that he was told by people smugglers and his brother in law that the information needed to be simple and consistent between his sister, brother-in-law and himself and that he focused on the immediate circumstances which caused them to leave Sri Lanka. He states he was told that this was only the information that was relevant and not to cover any other matters. He states that he believed until recently that what happened to his wider family could not assist his claim for protection. It is argued that the applicant’s young age only being 13 when he arrived in Australia and his limited English skills and limited education, plus his mental health issues and multiple suicide attempts and that he had no legal representation following the refusal of his visa application as well as that he was detained in Australia for over a year created impediments for him seek legal assistance and/or provide relevant information at an earlier stage. It is also argued that the previous IAA decision being remitted back by the Federal Circuit Court on the basis of a failure to consider the evidence of the applicant’s family member remaining in Sri Lanka is also an exceptional circumstance. It is also submitted that the nature of the IAA’s limited form of review and serious procedural disadvantages would increase the risk of the IAA making a decision that is not fair or just. It is also argued that the applicant was not given any opportunity to elaborate on evidence he gave to the delegate that his older sister was “disturbed or persecuted” by unidentified people and that his mother had told him that she had gone into hiding or gone overseas. It is submitted that the new information strongly corroborates with country information and that the applicant and his family lived in a former LTTE controlled area and that it well explains the ongoing threat and mistreatment of the family.
7. I have taken into account all of the arguments and reasons but I am not satisfied that there are exceptional circumstances to justify considering this new information contained in the statutory declaration. Nor am I satisfied that it is credible, personal information, which was not previously known, and had it been known, may have affected the consideration of the applicant’s claims. Nor am I satisfied that it could not have been provided to the delegate before he made his decision. Whilst the applicant was young when he arrived in Australia, I note that his SHEV application with his written statement was lodged only a short period prior to his 18th birthday and that he was an adult when the SHEV interview took place. I further note that the applicant was represented in the preparation of his SHEV application and at the SHEV interview and that a large and detailed post-interview submission was made by his representative. I also note that the delegate did not make a decision for over three months after this interview. Whilst I note the applicant at the SHEV interview referred to an older sister being “disturbed and persecuted” by unidentified people and that his mother had told him that she had gone into hiding or to some foreign country and that the delegate did question him about this, I am not satisfied that the applicant who was represented throughout all of the primary stage was not given the opportunity to provide more evidence about these claims. He was informed by the delegate that it was extremely important that he provide the Department with complete, accurate and personal protection claims as early as possible and that if he did not give the Department all the relevant information about his protection claims and his application was refused he might not have another chance to provide further information to support his claims. I note the interview was conducted with the assistance of a Tamil interpreter and no concerns have been raised with the quality of the interpreting. I also note that the applicant later in the interview did give further oral evidence that his mother told him that his older sister had problems when unidentified people came and knocked at her door and she left the country and that even his mother is in hiding. Whilst I note myself and the delegate have found the applicant to be credible about his previous claims of what occurred prior to him leaving the country and that there is country information concerning the mistreatment of LTTE members and their families and that the applicant resided in a former LTTE controlled area, in all the circumstances, I consider the failure to make these significant new claims at the primary stage (including that of his brother’s and cousin’s involvement in the LTTE and of family members being targeted and harmed because they had helped hide these individuals) to detract substantially from their credibility. I do not accept, in all the circumstances, that the applicant’s explanation that that he was told by people smugglers and his brother in law that the information needed to be simple and consistent between his sister, brother-in-law and himself and that he focused on the immediate circumstances which caused them to leave Sri Lanka and that he was told that this was only the information that was relevant and not to cover any other matters and that he believed until recently that what happened to his wider family could not assist his claim for protection is plausible or credible. I have taken into account his limited English skills and limited education, plus his mental health issues and multiple suicide attempts and that he had no legal representation following the refusal of his visa application as well as that he was detained in Australia for over a year but I do not accept that these are satisfactory explanations for his failure to make such critical claims.
The reasons of the IAA clearly conclude that the IAA would not have regard to the new information in the Statutory Declaration, as a result of the findings with respect to the operation of ss. 473DC and 473DD. The applicant argues that the effect of this finding was that the IAA failed to have regard to the submissions, and complains that the IAA did not have regard to submissions said to have been contained within the statutory declaration.
As Counsel for the Minister points out, the IAA appears to have had careful regard of the submissions, given the circumstantial evidence from the spelling error in paragraph [30] of the decision. The use of the word ‘disbursed’ in the decision was clearly intended to be ‘dispersed’. The same error occurred in the applicant’s submissions at CB351 occurred, where it was submitted that at paragraph [37(e)]:
The delegate found that I would have family support in Batticaloa and would be able to move within Sri Lanka and will not be at risk of harm as a young Tamil male in Sri Lanka. This is wrong. I continue to fear harm on the basis of being Tamil as explained above, and the risk is especially great for me because of my mental health condition. My family is disbursed. The wider community will deny me support because of my mental illness. I will not be offered any job.
Importantly, there was evidence of the circumstances of the applicant’s family in the interview extract at CB114:
In your SHEV Statement you said that your family were from Batticaloa, Eastern Province, Sri Lanka, and that after your father passed away in 2005 your mother struggled to support your family. What caused your father to pass away in 2005?
Died due to heart attack.
Why did you go live with your sister in 2007?
My father passed away and it was hard my sister was studying and living with grandma and she had no one to protect her and I used to go and see my mother but I stayed with my sister.
Whilst the delegate finds the applicant has family support (see CB175), the IAA makes different findings, saying:
30. The applicant has availed himself of mental health services in Australia and has not suggested that he would not seek them in Sri Lanka. I note the submitted country information that mental health patients are subject to discrimination, especially by employers, but I also note country information that unemployment in Sri Lanka is relatively low at 4 .4%. 10 Whilst he has no local work experience or contacts in Sri Lanka and a limited education and writing skills and a history of significant mental health issues, I note that he has obtained work in Australia a packer which provides him with some work experience he could utilise to help him as obtain work in Sri Lanka. I have taken into account that his mother could not support him when he was a child and that he has claimed that his family is disbursed and that it is wrong that he would have family support in Batticaloa. I note, however, from the SHEV application that he has five adult siblings who reside in Sri Lanka (with others in England and Qatar) and other than his assertions there is nothing before me to indicate that he could not obtain some assistance from them. The applicant has not provided any information as to why any of his siblings are unable or unwilling to provide any assistance (financial or otherwise) to him. He has not provided any information as to where the ones in Sri Lanka are disbursed to; nor has he provided any information as to their particular financial or personal circumstances. The applicant has had the opportunity to provide additional information to the IAA on these so. matters but has not done I have taken into account that country information indicates that mental health patients· are subjected to discrimination, especially by employers but there is nothing before me to indicate that the state discriminatorily withholds protection to such persons. The applicant has no family of his own to support and I am not satisfied that his capacity to subsist would be threatened whilst he sought work or mental health treatment or that he would not be able to seek and obtain employment. (emphasis added)
The applicant argues that the reasons in this respect are insufficient, as the issue became ‘intermingled’ with the conclusion about risk of harm due to lack of support in Batticoloa. It is apparent that the IAA has addressed the issue of family support in this paragraph.
It is well established that the court should give a decision maker’s reasons a beneficial construction, and not approach its task with an eye keenly attuned to error, as was said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272; Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14] per Allsop J, and Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 where the High Court of Australia said, at paragraph [147]:
147. While an obligation for an administrator to provide reasons does aid the process of curial review, the reasons must be read fairly and as a whole [FN: Wu Shan Liang (1996) 185 CLR 259 at 291]. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang this Court warned against the over-zealous judicial review of decisions of the Tribunal. In recognition of the fact that there is a range of legitimate approaches to decision-making and fact-finding, it was said that the reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error [FN: Wu Shan Liang (1996) 185 CLR 259 at 272, 281-282, 291]
The final part of this argument was to the effect that the IAA should have sought further information about the applicant’s family. This is not an issue about which a reasonable enquiry was likely to lead to a clear result. As the Full Court pointed out in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FOE17 [2020] FCAFC 73:
54.In Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184; (2017) 256 FCR 235 the appellants argued that the Tribunal was obliged, in conducting its review, to undertake inquiries by exercising its power to summons witnesses. That ground was rejected. In doing so, after referring to Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 ; (2009) 259 ALR 429 (SZIAI) at [25], the Full Court (Dowsett, Pagone and Burley JJ) said at [33]:
There is no general obligation to make inquiries, but as Kenny J noted in Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151 at [60], an obligation may arise in “rare or exceptional circumstances”. The mere fact that it may have been reasonable to make an inquiry does not mean the lack of such an inquiry amounts to a jurisdictional error; SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 at [30] (Bennett J); MZZGB v Minister for Immigration and Border Protection [2014] FCA 1052 at [63] (White J); Singh v Minister for Immigration and Border Protection [2017] FCA 1285 at [64] (Murphy J).
I am not persuaded that this is one of the rare cases where it was legally unreasonable for the IAA not to make further enquiries, particularly in light of the nature of the review process under Part 7A of the Act.
CONCLUSION
As the applicant has not established a ground for judicial review, I must therefore dismiss the application.
At the hearing the parties agreed that costs should follow the event at the scale fee. I therefore order the applicant to pay the ministers costs fixed at $7,467.00.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riethmuller. Dated: 28 June 2021
15
1