BUK24 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1097
•25 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BUK24 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1097
File number: MLG 943 of 2024 Judgment of: JUDGE SYMONS Date of judgment: 25 October 2024 Catchwords: MIGRATION – protection visa – decision of the Administrative Appeals Tribunal - whether Tribunal failed to consider claim made expressly – whether Tribunal failed to consider claim that was said to arise on the materials – where applicant represented before the Tribunal - whether Tribunal failed to comply with its obligations under s 425 of the Migration Act 1958 (Cth) – whether aspects of Tribunal reasoning were irrational, illogical or unreasonable - finding of jurisdictional error – writs issued Legislation: Migration Act 1958 (Cth), s 425 Cases cited: AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486
SZULW v Minister for Immigration and Border Protection [2018] FCA 1335
Division: Division 2 General Federal Law Number of paragraphs: 89 Date of last submissions: 2 September 2024 Date of hearing: 2 September 2024 Place: Melbourne Counsel for the Applicant: Mr M Kenneally Solicitor for the Applicant: Carina Ford Immigration Lawyers Counsel for the First Respondent: Mr J Barrington Solicitor for the First Respondent: Sparke Helmore Lawyers Solicitor for the Second Respondent: Submitting an appearance, save as to costs ORDERS
MLG 943 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BUK24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
25 OCTOBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.A writ of certiorari issue to quash the decision of the Administrative Appeals Tribunal made on 14 March 2024.
3.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the matter according to law.
4.The first respondent pay the applicant’s costs as agreed or in default of agreement, in accordance with the scale set out in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
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 SYMONS:
INTRODUCTION
By an application filed on 16 April 2024 and amended on 5 August 2024, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 14 March 2024. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise Visa (Class XE) (protection visa). The Minister opposes the application. The Tribunal enters a submitting appearance, save as to costs, and has not participated in the proceeding.
BACKGROUND
The background to these proceedings, as well as the key findings made by the Tribunal, are helpfully summarised in the applicant’s written submissions at [2]-[14]. In circumstances where the Minister, in his written submissions, takes no issue with this background and summary of findings, I substantially adopt these passages in this judgment as follows.
On 3 November 2023, the applicant applied for the protection visa.[1] The applicant’s claims were contained in his summary of claims accompanying his application.[2] The following claims are relevant to this proceeding:
(a)The applicant claimed to fear harm because of his familial connections to the LTTE, and his work as a journalist for a Tamil online news organisation.[3] The applicant claimed his colleague R had been murdered by the CID, and the applicant had been interrogated and tortured by the CID to ensure his silence in relation to the murder.[4]
(b)The applicant claimed that he engaged an agent to assist him to leave Sri Lanka. The agent provided the applicant with a passport with the applicant’s photograph, but a different name. The applicant travelled to Australia on that passport.[5]
(c)The Applicant claimed to have been displaced in the closing stages of the Sri Lankan civil war, to have witnessed a lot of bloodshed, and to have been injured in a shell attack. The applicant claimed he still has scarring on his left knee.[6]
[1] Court Book (CB), 1 – 31.
[2] Applicant’s Statement dated 3 November 2023 (CB 41 – 45).
[3] CB 44, [62] – [66].
[4] CB 42 – 43, [25] – [44].
[5] CB 44, [57] – [61].
[6] CB 42, [24].
On 21 November 2023, the applicant attended an interview with a delegate of the Minister.[7] On 29 November 2023, the delegate rejected the applicant’s application. The delegate noted the applicant’s claim to have been displaced in the final stages of the war, to have witnessed death and bloodshed and to have suffered injury. The delegate did not reject this claim of past harm.[8]
[7] CB 88.
[8] CB 86.
Application for merits review
The applicant sought review in the Tribunal. The applicant provided a report from a Ms Nathan, a counsellor from Foundation House dated 10 January 2024 (FH Report).[9] The FH Report contained a summary of the applicant’s claims under the heading “Brief family history and trauma background”.[10] The section detailed the applicant’s familial history including that two of his brothers had been members of the LTTE. The section detailed the applicant’s claims relating to his journalism. The section also referred to the applicant’s claims to have suffered trauma in the closing stages of the civil war, including fragmentation of family, displacement, witnessing bloodshed, and suffering a shrapnel injury.[11]
[9] CB 125-128.
[10] CB 126.
[11] CB 126.
Ms Nathan reported that the applicant had reported attempting suicide the year before.[12] Ms Nathan reported that the applicant impressed as experiencing symptoms of traumatic stress and depression such as “low mood, fatigue, excessive negative rumination, poor sleep and appetite, anxiety, social withdrawal and intrusive memories.”[13] The applicant also said in his statement dated 17 January 2024 that he suffered from panic attacks.[14]
[12] CB 127.
[13] CB 128.
[14] CB 131, [17].
On 22 January 2024, the applicant attended a hearing with the Tribunal, a transcript of which has been filed in this proceeding.
On 8 February 2024, the applicant’s representative provided post-hearing submissions. In those submissions the representative clearly articulated a claim regarding the applicant’s fear of harm because he had obtained a fraudulent passport:[15]
[The applicant] is fearful he will be detained and tortured by the Sri Lankan authorities, in particular the CID and Sri-Lankan Army if he returns to Sri Lanka, as he departed Sri-Lanka on fraudulent documents, and will be taken away and questioned and made to provide details about the agent he used. [The applicant] is fearful he will be apprehended and interrogated about this, and that torture would be used to obtain confessions from him…
[15] CB 151.
Additionally, it was argued that the applicant faced additional risk of any detention, surveillance, or harassment amounting to serious or significant harm due to his mental health vulnerabilities.[16]
[16] CB 152-153.
The decision of the Tribunal
On 14 March 2024, the Tribunal affirmed the decision of the delegate.[17]
[17] CB 162 – 178; CB 182.
In assessing the applicant’s claims the Tribunal relied on the Department of Foreign Affairs and Trading Country Information Report (DFAT Report) extracted at [58] of the reasons.
The Tribunal accepted that two of the applicant’s brothers had been low level Tamil Tigers and one had been detained.[18] The Tribunal found the applicant was not at risk of harm due to his brother’s previous LTTE involvement, or because one of his brother’s had been found to be owed protection in Australia in 2017.[19] The Tribunal rejected entirely the applicant’s claims based on his work as a journalist.[20] The Tribunal made no finding as to the applicant’s claim to have been displaced, and to have witnessed bloodshed in the closing stages of the Sri Lankan civil war.
[18] CB 175, [64] – [65].
[19] CB 175, [63] – [67].
[20] CB 176, [69] – [73].
The Tribunal noted that the FH Report relied on the history of the applicant being targeted for being a journalist. The Tribunal having rejected that history, found that the diagnosis of PTSD[21] was questionable. The Tribunal did not accept that the applicant had committed suicide or suffered injuries during the civil war but gave no reasons for these findings.[22]
[21] The Foundation House counsellor did not diagnose the Applicant with PTSD, but symptoms of traumatic stress,
[22] CB 176 – 177, [75].
The Tribunal then considered the applicant’s remaining claims. The Tribunal summarised the applicant’s profile at [76] as a “Tamil from the North, an asylum seeker who left Sri Lanka on a fraudulent passport”. The Tribunal referred to the DFAT report regarding the circumstances for Tamil’s in Sri Lanka.
The Tribunal accepted failed asylum seekers may be monitored on return.[23] The Tribunal dealt expressly with the claim relating to illegal departure at [77]:
If returnees left Sri Lanka illegally, they are likely to be bailed and released, and after a cumbersome court case issued with a fine. There is minimal social discrimination against returnees.
[23] CB 177, [76] – [77].
The Tribunal found that as it did not accept the applicant was psychologically vulnerable that the circumstances detailed in the DFAT report would not cause him serious harm.[24] The Tribunal relied on these findings to conclude the applicant did not meet the complementary protection criterion.[25]
[24] CB 177, [79].
[25] CB 177, [82].
JUDICIAL REVIEW
By application amended on 5 August 2024, the applicant relies upon four grounds of review.
The applicant relies on his submissions filed on 5 August 2024. The applicant also relies on an affidavit of Dushan Nikolic affirmed on 16 April 2024 (the Nikolic affidavit) to which no objection was taken by the Minister, and I have treated as being read. The Nikolic affidavit, among other things, annexes a transcript of the Tribunal hearing (T).[26]
[26] Annexure DN-4.
The Minister relies on his submissions filed on 15 August 2024.
The application was listed for final hearing before me on 2 September 2024. On this date the applicant was represented by Mr Kenneally of counsel and the Minister by Mr Barrington of counsel.
GROUND ONE
Ground one reads:
The Tribunal failed to consider: the applicant's claim to fear harm due to having obtained a false passport; and/or integral part of his claim to fear harm as a person who had departed Sri Lanka illegally.
Particulars
a.The applicant claimed that he received a false passport from an 'agent' to assist to exit Sri Lanka and travel to Australia (See Tribunal's Reasons for Decision, [27]).
b.The applicant claimed that he feared being detained and tortured by the Sri Lankan authorities, because:
i.he departed Sri-Lanka on fraudulent documents; and
ii.authorities would seek to determine the identity of the agent he used to depart illegally.
c.The Tribunal was required to consider the claim and both integral parts of the claim.
d.The Tribunal failed to consider whether the applicant was at additional risk because he:
i.departed Sri Lanka on a false passport; and/or
ii.Sri Lankan authorities would detain him and torture him to find out the identity of the agent who provided him the false passport.
Applicant’s submissions
The parties agree that the applicant’s representative clearly articulated a claim (reproduced at [8] above) that the applicant feared he would be questioned and tortured by Sri Lankan authorities on return to identify the agent who provided him the fraudulent passport. At hearing, Mr Kenneally submitted that this was a very specific claim that was distinct from and operated independently of, the claim (also pressed) that the applicant would face consequences upon return because he had departed Sri Lanka illegally. The applicant submitted that the Tribunal failed to consider the claim.
The applicant submitted that while the Tribunal acknowledged the claim at [56] of its reasons, it did so in limited terms that failed to make reference to why the applicant feared he would be harmed for having left Sri Lanka on a fraudulent passport (i.e. to discover the identity of the agent) or what harm the applicant feared (i.e. torture, to extract a confession).
The applicant submitted that the Tribunal applied the same myopic lens to its consideration of his claim regarding illegal departure which occurred at [77] of the Tribunal’s reasons as follows:
Failed asylum seekers are interviewed by various government agencies to check their identity and where they come from, and any criminal background or security concerns. Some returnees to the North and East are actively monitored (e.g. visited by CID) on their return but not on an ongoing basis. If returnees left Sri Lanka illegally, they are likely to be bailed and released, and after a cumbersome court case issued with a fine. There is minimal social discrimination against returnees.
The applicant described the Tribunal’s analysis as “entirely anchored” in the consequences of illegal departure, as identified in the Immigrants and Emigrants Act. It was said to be significant and a further indication of error, that the Tribunal had failed to identify or refer to any country information that dealt directly with the consequences of a person being found to have used a false passport, including the prospect of investigation. The applicant described the country information referred to by the Tribunal as germane only to the prospect of harm attending a person’s illegal departure from Sri Lanka.
Minister’s submissions
The Minister, on the other hand, submitted that after identifying the fraudulent passport claim at [56], the Tribunal’s reasons at [77] involved a finding that the fraudulent passport claim had been rejected.
The Minister submitted that the Tribunal effectively found that the applicant would be questioned about where he came from and whether he had any criminal or security concerns but was otherwise likely to be bailed, released, and issued with a fine.
The Minister acknowledged that the Tribunal did not record an express conclusion in terms that “the applicant will not be tortured in order to find out the identity of the agent who supplied the passport” but submitted that such a finding was not necessary because its findings about the nature of questioning the applicant would face involved a rejection of the fraudulent passport claim at a level of generality.
Counsel for the Minister, Mr Barrington, submitted that an evaluation of ground one should also recognise that the duty of a decision maker to respond to a claim is reflexive to the length and clarity of the corresponding representation. In this respect, the Minister noted that the reference to a fraudulent passport claim was limited to the statement in the post-hearing submissions (refer [8] above) and the following paragraph [57] taken from the applicant’s summary of claims document (CB 44):
The agent did not hand back my Sri-Lankan passport, but instead gave me another passport which had another name with my photo. I was told to memorise this name and if I was asked any questions about my visa in Australia to tell that I had applied for Australian Permanent Residency. I was told by the agent that everything had been set up at the airport to allow my passage without any detection or problem. I was told I must go to the first counter.
The Minister submitted that the Tribunal’s summary of the fraudulent passport claim (appearing at [56] of its reasons) fairly and adequately reflected the manner in which the claim had been articulated and the disposition of the claim involved a proportionate response given the limits of its expression.
Consideration of ground one
I am not persuaded that the Tribunal erred by failing to consider the applicant’s fraudulent passport claim.
The claim was put in sparse terms and was not accompanied by country information. I accept therefore that it demanded a less rigorous form of engagement from the Tribunal.[27]
[27] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [25] per Kiefel CJ, Keane, Gordon, and Steward JJ.
In any case, the Tribunal’s reasons contain clues from which I am comfortably able to infer, that the Tribunal did consider the claim.
In the first place is the explicit reference to the claim appearing at [56]. The failure of the Tribunal to descend into the detail of what harm precisely the applicant feared is not in my view significant.
Second, the Tribunal at [76] of its reasons acknowledged that the applicant’s profile included that he had left Sri Lanka on a fraudulent passport. This acknowledgement, self-evidently, appeared in close proximity to the dispositive reasoning at [77]. that was essentially dispositive of the applicant’s claim to apprehend harm arising from his interaction with authorities upon return to Sri Lanka.
Third, while the reasoning in [77] did not make express reference to the fraudulent passport, it was reasoning that was responsive to and dispositive of the applicant’s claim to apprehend harm arising from his interaction with authorities (for all the reasons identified at [76] upon return to Sri Lanka. I consider that these findings, including because they acknowledged an assessment for criminal background or security concerns, were of sufficient broad compass to comprehend the fraudulent passport claim.
GROUND TWO
Ground two reads:
The Tribunal failed to consider the Applicant’s claim to fear punishment for having obtained a fraudulent passport.
Particulars
a.The applicant repeats and relies on particulars (a)-(b) above.
b.It was implicit in the Applicant’s claims that he would be apprehended, detained, and questioned about how he obtained a fraudulent passport that he feared separate punishment for having engaged in fraud.
c.The Tribunal failed to consider the risk of harm to the Applicant from having engaged in fraud.
Applicant’s submissions
By ground two the applicant submitted that a further claim clearly emerged from his submissions that he may be punished for obtaining a fraudulent passport, being that he feared separate punishment for having engaged in fraud. The applicant submitted that the Tribunal failed to consider the claim.
The applicant properly acknowledged that the fact he was represented at relevant times operated against a finding that a claim of this kind clearly emerged. However, he submitted, that in other respects, the claim satisfied the principles identified by the Full Court in AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 at [18], including, that it required no imagination or creativity to be identified by the Tribunal; if a person fears being detained by authorities and questioned about unlawful conduct (i.e. fraud), it follows that they fear being punished for that conduct.
Minister’s submissions
The Minister submitted that the fact that the applicant was represented before the Tribunal was a consideration that decisively defeated the contention that the postulated claim clearly emerged from the material. This was a consequence of a line of authority to the effect that “[u]nless there are reasons to think otherwise, it may be assumed that the claims which a represented applicant wishes to make before the Tribunal are the ones expressly articulated by him or her and his or her advisers and that any other arguable claims which are not expressly articulated are not pressed” (referring to SZULW v Minister for Immigration and Border Protection [2018] FCA 1335 at [80]).
The Minister submitted that in any case, the postulated claim was a long way from obvious, in the sense that it was not at all clear that an agent obtaining a false passport on a person’s behalf involved the recipient of the fake passport committing some criminal act. The Minister noted that the applicant put no information before the Tribunal to this effect and that there must be significant doubt about whether committing an illegal act of the sort alleged could give rise to protection obligations, including because it was not clear that any prosecution would be for a Convention reason and not simply represent a risk of harm faced by the population of the country generally.
Consideration of ground two
I am not persuaded that the Tribunal erred by failing to consider a claim that the applicant feared harm, in the form of punishment, because he had engaged in fraud connected with his use of a fraudulent passport.
As the Full Court observed in AYY17 at [18(a)-(b)], the question of whether a claim clearly emerges is not to be made lightly. Furthermore, the fact that a claim might be said to arise from the materials is not enough. To these constraints and a matter that is decisive in this case, is the principle (acknowledged by both parties but emphasised by the Minister) that an administrative decision- maker is not obliged to construct and respond to claims that have not been identified by a represented applicant, no matter how obvious or compelling.
In this case, the applicant had the benefit of representation at all stages of the application and Tribunal review process. The claim now pressed was not identified. The claim in any case, I accept was neither obvious nor supported by any material that was before the Tribunal.
GROUND THREE
Ground three reads:
The Tribunal denied the applicant procedural fairness and/or failed to comply with s 425 of the Migration Act 1958 (Cth) in finding that the applicant was not psychologically vulnerable and/or that he had not suffered war injuries and/or had not attempted suicide without putting the Applicant on notice of the issues or findings.
Particulars
a.The applicant claimed to the delegate that he had witnessed bloodshed in the civil war and suffered injuries from indiscriminate bombing.
b.The applicant provided a report from his Foundation House Counsellor dated 10 January 2024 who stated:
i.The applicant reported symptoms of post traumatic stress disorder;
ii.the applicant recalled traumatic experiences from the Sri Lankan civil war, including suffering injury; and
iii.the applicant had attempted suicide.
Applicant’s submissions
By ground three, the applicant submitted that he was denied an opportunity to address an issue in the review, being whether he was psychologically vulnerable, as well as three related issues described as: (i) whether he had mental health symptoms described in the FH Report and his statement dated 17 January 2024; (ii) whether he had suffered injury in the civil war; and (iii) whether he had attempted suicide.
The applicant acknowledged that while s 425 of the Migration Act 1958 (Cth) (Act) did not require the Tribunal to disclose its mental processes or provisional views to him, the obligation to afford the applicant a real and meaningful opportunity to address the issues in the review might require the Tribunal to bring to the applicant’s attention issues that were not obvious from the material (referring to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, [32]-[43]).
At hearing, the focus of submissions by Mr Kenneally was on the alleged failure of the Tribunal to put the applicant on notice that it might not accept his claim and/or evidence to have suffered war injuries in 2000 coinciding with the end of the civil war in Sri Lanka. Mr Kenneally characterised this as the “high point” of the applicant’s arguments made under ground three.
Mr Kenneally submitted that the war injuries “issue” emerged for the first time when the Tribunal published its reasons. Before this time, the following characteristics of the war injuries claim, and its treatment by the delegate and the Tribunal, gave no indication that it might be dispositive in the review.
·The claim was made by the applicant at the earliest opportunity (refer CB 42 [24]).
·The claim was consistent with country information.
·There was no inconsistent evidence before the Tribunal about the claim.
·The FH Report contained information that was consistent with the applicant having suffered war injuries (CB 126).
·The claim had never been tested.
On this last point, the applicant submitted that the “issues” were clearly defined by the delegate and then by the Tribunal at hearing as concerned with the applicant’s brothers and whether, despite LTTE involvement, they had any relevant extant profile and the applicant’s claim that he had been a reporter and targeted as a result. The applicant submitted that there had been no real questioning (prior to the Tribunal’s decision) of the applicant’s own experience of war, including whether he had been displaced, had grown up in the war environment and/or suffered war-related injuries. The focus of questioning was squarely directed at the profile of the brothers.[28] The following exchange that occurred at T40, lines 8-15 (with applicant’s emphasis) did not enlarge the issues.
Member: Excuse me one moment. Now, you’ve submitted some further documents. Your medical report I will consider but insofar as it reflects claims that you’ve reported to the people at Foundation House, it is second-hand information. I may not give it much weight, medical report.
Interpreter: Sorry. One is medical report. Then this is [crosstalk]---
Member:Oh, sorry. It’s a medical assessment from Foundation House. I just want the applicant to know that I may give it limited weight insofar as it reports second hand what he has related about his claims.
[28] Refer T7.
The applicant submitted that the takeaway message from this exchange was that the Tribunal was troubled by the FH Report only insofar as it purported to corroborate information supplied by the applicant about his substantive protection claims. It did not identify as an issue that the Tribunal might not accept the clinical aspects of the document or that it might reject the applicant’s account of his past experience of war and trauma and injury associated with that experience.
The applicant identified the war injury claim as a “central issue” in the review by reference to [75] of the Tribunal’s written statement which reads:
The health assessment report is deficient in two ways. As evidence of the applicant’s claimed experiences it is based on his own self-reports and does not outweigh the Tribunal’s credibility concerns. It follows that as a diagnosis of PTSD it is also questionable, since the symptoms he claims cannot reliably be connected to traumatic experience. Although the applicant grew up in a war environment which would have been frightening, the Tribunal does not accept that he has war injuries or has attempted suicide.
The applicant submitted that these findings, including the rejection of the war injuries claim, led the Tribunal to later, at [79], reject the applicant’s claim to be psychologically vulnerable which, in turn, led it to find that the applicant would not be seriously affected by the circumstances (for returnees) described in the DFAT Report.
The second “more broad” argument advanced by the applicant at hearing was that he had not been on notice that the clinical observations contained in the FH Report, and the submission that he was psychologically vulnerable, were in issue.
Referring again to the exchange reproduced at [50] above, the applicant submitted that this did not expose these issues given its focus on “claims” and the corroborative value of the second-hand information. As far as the reference to “claims” was concerned, the applicant noted that on other occasions during the hearing the Tribunal had used this word to describe the harm that the applicant had experienced and feared, as distinct from his experience of war.[29]
[29] T12 line 16-24; T20 line 18-19; T31 lines 21-24; T38 line 27; T39 line 3.
The applicant submitted that as a result of the failure of the Tribunal to identify these “issues”, he was denied the opportunity to give evidence or make submissions directed at them and had he been on notice, he could have provided oral evidence regarding his psychological vulnerability, war injuries and suicide attempt and/or produced more medical material.
Minister’s submissions
The Minister submitted that in circumstances where the applicant made the claim of psychological vulnerability for the first time before the Tribunal (rather than the delegate) there was no requirement on the part of the Tribunal to indicate to the applicant that it might reject the claim because the assumption that would ordinarily apply to the delegate’s dispositive reasoning had no application; the delegate did not deal with the issue at all. It followed, according to the Minister, that the applicant could not assume that the matters set out in the FH Report would be accepted.
The Minister submitted that the applicant had been given a real and meaningful opportunity to attend a hearing and present his case in full in relation to the new claim and the Tribunal was not required to give notice of what it thought about the evidence that was given (referring to SZBEL at [48]). The Tribunal hearing was the opportunity for the applicant to persuade the Tribunal as to the new issue of his psychological vulnerabilities. To suggest that the Tribunal was required somehow to indicate that it was not convinced by the FH Report, or anything contained within it, would be to impose a requirement that it give advance notice of the findings it intended to make.
The Minister submitted that in any case, the Tribunal did make it sufficiently clear that the contents of the FH Report was in question. It did so by saying that the report was “second-hand” and that it might give it “limited weight”. The Minister submitted that the message conveyed by the Tribunal was that it was casting doubt over the whole of the report rather than differentiating between those parts that recorded events that the applicant claimed to have occurred in Sri Lanka and the clinical aspects of the report. The word “claims” in this context was sufficiently broad to also comprehend the applicant’s claim to face harm as a result of his psychological vulnerabilities and the facts underlying that claim.
The Minister submitted that furthermore, at no time during the Tribunal hearing did the Tribunal suggest, expressly or impliedly, that the applicant could assume that the clinical aspects of the FH Report would be accepted. Even if the Court was to find that the exchange referred to at [43] had the narrow focus alleged by the applicant, it did not follow that the Tribunal took the issue of the applicant’s psychological vulnerabilities “off the table” given that the Tribunal was not required to put to the applicant that it was not inclined to accept the “clinical aspects” of the report.
In oral submissions, Mr Barrington took the Court to the decision of SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486 to make the following points, by way of analogy:
First, that (like in SZJUB) the Tribunal had made a statement to the applicant at the outset of the hearing that demonstrated that the Tribunal was deciding the matter afresh and was not bound by anything the delegate said (SZJUB, [7]). The statement appeared at T2, lines 23-25 was:
Now, in reviewing that decision, I’m independent from the Department of Home Affairs. My role is to look at all of the information and make my own findings of facts to reach my own decision on your case.
Second (in relation to the war injuries claim) that this was not a standalone claim but rather its rejection informed the Tribunal’s finding that the applicant didn’t suffer a traumatic event and didn’t have a psychological vulnerability that would translate to a real risk of relevant harm on return. The Minister submitted that in this respect, the reasoning in SZJUB at [25] and [28] was apposite because it distinguished between factual matters that underpin an “issue” and “issues”, with the obligation under s 425 of the Act attaching only to the latter. The Minister submitted that the war injury was a factual matter that underpinned the applicant’s claim to have a psychological vulnerability and that claim or “issue” had been identified in the exchange reproduced at [50] above.
Consideration of ground three
I am persuaded and therefore find that the Tribunal erred in this case by failing to comply with its obligations under s 425 of the Act to identify for the applicant an issue in the review, being the question of whether he (as claimed) suffered injuries during the Sri Lankan civil war.
Although perhaps the war injuries claim did not figure as prominently as others advanced by the applicant, its dispositive significance must be viewed through the prism of the Tribunal decision. In this respect, I accept that the rejection of the war injuries claim was one of the reasons given by the Tribunal for rejecting the applicant’s claim to be psychologically vulnerable. Rejection of this claim led in turn to the Tribunal rejecting the applicant’s claim that he would suffer relevant harm through exposure (in a vulnerable state) to conditions experienced by returnees on return to Sri Lanka. It is therefore not apt to characterise the war injuries claim, in the scheme of the Tribunal’s reasoning, as a factual matter that underpins an issue which, on the reasoning of SZJUB, would not have required identification.
The war injuries claim was not expressly identified by the Tribunal as a matter that it might have occasion to doubt. Neither was its credibility questioned by the delegate.
Furthermore, I do not accept that reference to the war injuries claim was exposed by the limited exchange reproduced at [50] above. Instead, I consider that the message conveyed by the Tribunal was that the FH Report, to the extent that it purported to record or restate matters communicated by the applicant (rather than involving an independent account of events) had little corroborative value. The exchange, understood in that sense, did not communicate to the applicant that the Tribunal maintained reservations about the credibility or reliability of his own account of events.
For the avoidance of doubt, I do not consider that the general statement that the Tribunal would make its own findings of fact and make its own decision (refer [62] above) alters this analysis. This statement needs to be understood in the context of the matters emphasised by the Tribunal and the matters about which the Tribunal maintained its silence. Furthermore, the significance of this statement is diminished in this case (compare SZJUB at [16]) because the applicant had an awareness of the decision of the delegate, which decision provided the starting point for the identification of “issues”.
I am not satisfied that the Tribunal erred in the manner alleged by the applicant in relation to the broader issue of the clinical observations contained in the FH Report and the submission that he was psychologically vulnerable. This is because I accept the submission of the Minister that as new “issues” the applicant should have understood that they were all susceptible to challenge. However, my finding in relation to the war injuries claim means that the applicant should succeed on ground three and is entitled to the relief sought.
GROUND FOUR
Ground Four reads:
The Tribunal’s finding that the Applicant was not psychologically vulnerable was irrational, illogical, or unreasonable as it was based on irrational, illogical or unreasonable reasoning.
Particulars
a.The applicant repeats and relies on particulars (a) – (c) and (e) of ground 3.
b.The Tribunal’s conclusion that the Applicant was not psychologically vulnerable was irrational as:
i.the Tribunal gave the Foundation House report less weight because it found the diagnosis of PTSD ‘questionable’, in circumstances where the Foundation House counsellor had not made a diagnosis of PTSD;
ii.the Tribunal made no finding as to whether the Applicant’s mental health symptoms reported in the Foundation House report or the Applicant’s Statement dated 17 January 2024 were not genuine;
iii.the Tribunal found the Applicant’s symptoms could not be linked to traumatic events in circumstances where: the Tribunal had accepted the Applicant had spent time in a war environment, two of his brother’s had been in the LTTE and one of his brother’s had been detained; and did not reject the Applicant’s claim that he had witnessed bloodshed during the civil war; and/or
iv.the Tribunal’s findings the Applicant had not attempted suicide or suffered injury in the war was unsupported by any logical reasons and/or was arbitrary.
Applicant’s submissions
The applicant submitted that the Tribunal’s findings in relation to his psychological vulnerability were not supported by rational, logical or reasonable reasons.
The applicant submitted that the Tribunal did not accept he was psychologically vulnerable for three reasons.
First, the PTSD diagnosis was questionable because the claims that the applicant made had been rejected by the Tribunal.
Second, the Tribunal rejected the applicant’s claim to have been injured during the war.
Third, the Tribunal rejected the applicant’s claim to have attempted suicide.
The applicant submitted that each step in the reasoning was defective as follows.
As to the first step or reason:
(a)Ms Nathan, the author of the FH Report, had not diagnosed the applicant with PTSD, or any condition necessarily experienced because of trauma. The Tribunal therefore doubted a diagnosis that had not been made. Ms Nathan had identified symptoms consistent with trauma or depressive illness, no more. The applicant also reported some of these symptoms in his statement dated 17 January 2024. The Tribunal’s questioning of a diagnosis that had not been made, did not provide a logical basis for rejecting the symptoms reported. The fact that the applicant’s representative had characterised the applicant as suffering with PTSD was of no moment when, in fact, that was not the diagnosis.
(b)The Tribunal did not reveal any basis for finding the applicant’s mental health symptoms as reported to Ms Nathan and in his statement were not genuine. It was those symptoms that amounted to the psychological vulnerability, and which needed to be rejected.
(c)The Tribunal’s findings did not reject an array of traumatic experiences that had been recorded by Ms Nathan: displacement in Sri Lanka; witnessing violence in the civil war; or isolation in immigration detention.
As to the second step or reason, the applicant submitted that the Tribunal had provided no reasons for rejecting his claim that he had been injured during the civil war. The Tribunal had not found that the applicant was of such poor credit nothing he said could be accepted. Indeed, the Tribunal had accepted the applicant’s claims about his identity ([60]-[61]) and that two of his brothers were low-level Tamil Tigers ([63]). Against this background, there was no logical explanation for why the Tribunal had found the applicant was not injured in the civil war, including in circumstances where the claim had been made in the applicant’s initial application for protection. The conclusion was apt to be characterised as “arbitrary”.
As to the third step or reason, the applicant submitted that the Tribunal had offered no explanation for its rejection of his claim to have attempted suicide.
Minister’s submissions
As a general response to ground four, the Minister submitted that the Tribunal had supplied a rational set of reasons for rejecting the applicant’s claim of psychological vulnerability that reflected its concern that the applicant’s claimed experiences were based on his own self-reports and the Tribunal had credibility concerns about the applicant. It followed, on this analysis, that the diagnosis of PTSD was questionable because it could not reliably be connected to traumatic experiences like war injuries or attempted suicide.
As far as the applicant sought to impugn three steps of the Tribunal’s reasoning, the Minister’s response was:
In relation to the first step:
(a)there was nothing illogical in the Tribunal construing the FH Report as containing a diagnosis of PTSD when that the very thing that the applicant had submitted to the Tribunal (CB 153) and where the author of the FH Report had recorded that the applicant experiences symptoms of “traumatic stress and depression” (CB 128). The Tribunal was simply responding to the claim as put.
(b)The Tribunal did identify a basis for finding that the applicant’s claimed experiences were not genuine, namely, that the Tribunal had significant concerns about the applicant’s credibility ([68], [70], [74]).
(c)The Tribunal did not need to reject the array of traumatic experiences. This was because the Tribunal recognised expressly that the applicant “grew up in a war environment which would have been frightening” ([75]). The Tribunal was entitled to reject the FH Report, in circumstances where it rejected the principal aspects of the report as well as the applicant’s claimed experiences.
In relation to the second and third steps, the Minister submitted that the Court should infer that the Tribunal rejected the applicant’s war injuries claim because of its credibility concerns.
Consideration of ground four
The findings recorded in [75] of the Tribunal’s statement of reasons are problematic.
First, it was irrational for the Tribunal to discredit the FH Report for the reason that it contained a “questionable” PTSD diagnosis. This is not just because, as a matter of fact, the FH Report did not contain, or purport to contain, such diagnosis but because the balance of the Tribunal’s finding – “since the symptoms he [the applicant] claims cannot reliably be connected to traumatic experiences” – do not reflect the clinical observations made in the report.
The FH Report records the applicant as experiencing a range of symptoms. However, none, except for nightmares, are identified in a way that connects them to a past traumatic event or experience. In this respect, there is no rational connection between the rejection of the FH Report and its clinical contents, and the justification supplied by the Tribunal. I accept the submission of the applicant that the Tribunal did not otherwise reveal any basis for finding the applicant’s mental health symptoms as reported to Ms Nathan and as recorded in his statement were not genuine.
I further accept the submission of the applicant that the rejection of the applicant’s claims to have suffered war injuries and to have made an attempt at suicide involved irrational and unintelligible reasoning. No discernible reason is given for the rejection of these claims within paragraph [75]; the reference to “credibility concerns” should be understood as directed at the first part of that paragraph. While it is true that the Tribunal had significant credibility concerns with aspects of the applicant’s case – especially his claim to be a reporter and to have suffered harm in connection with this work – the Tribunal did not record wholesale credibility findings that were capable of carrying across, without further explication, to claims of an entirely different character and which, in the case of the war injuries claim, had been made early and consistently and never controverted.
RELIEF
In circumstances where the applicant has succeeded in establishing jurisdictional error in the decision of the Tribunal, I will make orders the effect of which is to set aside the decision of the Tribunal made on 14 March 2024 and return it to the Administrative Review Tribunal to be remade, according to law.
I will further order, where the applicant has enjoyed success in prosecuting his application, that the Minister pay his costs in an agreed amount or in default of agreement, an amount reflecting the scale set out in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 25 October 2024
CB 128.
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