BYV18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1068
•24 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BYV18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1068
File number(s): MLG 1041 of 2018 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 24 November 2023 Catchwords: MIGRATION LAW – application for judicial review – decision of the Administrative Appeals Tribunal – Protection (Class XA) (subclass 866) – whether the Tribunal failed to consider an integer of the applicant’s claim – key issue of whether applicant’s claims to fear harm on the basis of stigma associated with mental health and/or inadequacy of mental health services arose ‘squarely’ on material before Tribunal – materiality – jurisdictional error established – writ of certiorari issued – writ of mandamus issued – order for costs. Cases cited: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244
NABE v Minister for Immigration and Multicultural Affairs (No 2) (2004) 144 FCR 1
Division: Division 2 General Federal Law Number of paragraphs: 102 Date of last submission/s: 1 June 2023 Date of hearing: 1 June 2023 Place: Melbourne Solicitor for the Applicant: The Applicant appeared in person Solicitor for the First Respondent: Mr A Cunynghame of Sparke Helmore Lawyers ORDERS
MLG 1041 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BYV18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
24 NOVEMBER 2023
THE COURT ORDERS THAT:
1.A writ of certiorari be issued directed to the second respondent quashing the decision dated 9 March 2018.
2.A writ of mandamus be issued directed to the second respondent requiring it to reconsider and determine the applicant’s application according to law.
3.The first respondent pay the applicant’s costs in a sum to be fixed if not agreed.
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
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
Before the court is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 9 March 2018. By its decision, the Tribunal affirmed a decision of a delegate of the first respondent, the then Minister for Home Affairs (‘the Minister’), not to grant the applicant a Protection (Class XA) (subclass 866) visa (‘protection visa’).
The applicant filed his application for judicial review on 18 April 2018, five days out of time for filing an application in this court. On 4 April 2023, orders were made by consent which allowed the application to proceed out of time.
I will therefore proceed to consider the substantive application for judicial review.
BACKGROUND
By way of background, the applicant is a citizen of Pakistan from the Swat district of Khyber Pakhtunkhwa province. He initially arrived in Australia on 22 July 2014 on a student visa.[1]
[1] Court book at page 103.
Application for protection visa on 12 March 2015
On 12 March 2015, the applicant applied for a protection visa.[2]
[2] Court book at page 1 and following.
Attached to the application for a protection visa is a statement of claim, in which the applicant outlines his reasons for claiming protection, including his reasons for leaving Pakistan, his experience of harm in that country and why he feared return.[3]
[3] Court book at pages 53 to 55.
Applicant’s claims to fear harm
In his statement of claim, the applicant claims to fear harm from both the Taliban and Pakistani army. The applicant claims that both the Taliban and Pakistani army have ‘persecuted [him] and [his] family on many occasions’ and fears that this would occur again if he were to return.
The applicant describes his family’s initial support of the Taliban’s ‘peaceful’ teachings under the leadership of Mawlana Fazal Ullah. He says that his father and brother were involved in the construction of a ‘Madrassa’ (religious school) in a nearby village, having been encouraged by Mawlana Fazal Ullah to do so, which the applicant also assisted with.
The applicant goes on to describe an incident in mid-2008 where the Taliban occupied a girls’ school near his home, leading to a ‘very heavy fight between Taliban and the Army’ when the army fired upon the school. The applicant says that his father, with the assistance of other elders in the village, subsequently successfully ‘eradicated’ the members of the Taliban from the girls’ school that they were occupying.
The applicant states that his father’s opposition to the Taliban’s activities resulted a further incident in which he (the applicant) was taken by members of the Taliban and locked in a room for eight days, until he was released on the condition that his father would not continue his activities. The applicant also describes being beaten by the Taliban on two other occasions.
The applicant goes on to describe being displaced from Swat due to the army’s operation against the Taliban in the district. When the applicant returned to Swat, he found that his house had been partially destroyed during ‘heavy fighting’.
The applicant also claims that in July 2010, after the army operation, the army entered into his home and arrested him, his brother and his father for helping the Taliban with the construction of the Madrassa during their uprising. The applicant states that as a result of their involvement with this, they were tortured by the army and questioned about their support of the Taliban. Ultimately, the applicant says that they were kept in custody for 21 days.
The applicant says that his brother was arrested again by the army in February 2012 for his suspected involvement with the Taliban, and that at the time of his statement, his brother was still missing and he and his family did not know his brother’s whereabouts, or indeed, whether he was still alive.
The applicant further says that the Pakistani army wanted to set up an army base in Swat and asked all of the people in the proposed base area to sell their houses and property to the government for a very cheap price. The applicant’s family property fell within the proposed area for the army base and this was another source of conflict.
The applicant says that his father rallied against the army ‘to show us the where about[s] of our loved ones and also against their illegal possession of our properties’, organising rallies and protests, which the applicant also attended.
According to the applicant, in early August 2013, the army came to his home and arrested him, his father and his uncle and kept them in ‘separate torture rooms’ for about 17 days. The applicant says that the army only released them on the condition that they should report to the army once a week and could not leave Swat without the army’s permission. On one occasion in late January 2014, the applicant did not report to the army as required, and he claims to have been forced by the army to take off his clothes and stand outside in the cold the whole night.
The applicant says that since his arrival in Australia, he has been informed by his family that the army has come his house in Pakistan on a number of occasions to arrest him for not reporting to them each week and that they have harassed his father and younger brothers on these visits. The applicant further claims that his father received a phone call on 21 February 2015 threatening to kill him (his father) and his family members if his father continued to engage in protests.
The applicant initially filed his protection visa application by himself, with help from a friend. On 9 June 2015, the applicant notified the Department that he had appointed a migration agent to act on his behalf.[4]
[4] Court book at page 63 and following.
On 17 June 2015, the applicant was invited to attend an interview at the Department to discuss his visa application and protection claims.[5] The interview was scheduled for, and took place on, 6 July 2015.
[5] Court book at pages 83 to 86.
On 27 August 2015, the applicant’s appointed migration agent wrote to the Department to address adverse information put to the applicant by the delegate at his interview.[6]
[6] Court book at pages 92 to 96.
On 12 January 2016, the applicant was notified by the Department that his application for a protection visa had been refused.[7]
[7] Court book at page 100 and following.
At paragraph [51] of the decision record, the delegate notes:
51.… Although the applicant has demonstrated some consistency in his claims, I find that they are generally unsupported by country information and, at times, logic.
Application for review at Tribunal on 27 January 2016
On 27 January 2016, the applicant lodged an application for review of the delegate’s decision with the Tribunal.[8]
[8] Court book at pages 121 to 122.
On 11 May 2017, the applicant’s newly appointed solicitor wrote to the Tribunal advising that they now acted for the applicant in respect of his review application.[9]
[9] Court book at page 130 and following.
On 5 July 2017, the Tribunal wrote to the applicant and his solicitor inviting him to attend a hearing on 3 August 2017.[10] The letter to his representative requested any written submission setting out all claims made and maintained by the applicant to be submitted by 27 July 2017.[11]
[10] Court book at page 146 and following.
[11] Court book at page 147.
On 1 August 2017, the applicant’s representative sent an email to the Tribunal, attaching copies of a statutory declaration made by the applicant, Computerised National Identity Card for his older brother, Family Registration Certificate for the applicant and his family and Birth Registration Certificate for his older brother.[12]
[12] Court book at page 155 and following.
The following day, on 2 August 2017, the applicant’s representative sent a further email to the Tribunal, attaching legal submissions dated 1 August 2017 and a psychological report of Foundation House dated 19 July 2017 and prepared by Ms Maneka Dayaratne.[13]
[13] Court book at page 181 and following.
The hearing took place before the Tribunal as scheduled on 3 August 2017. The applicant appeared at the hearing with his representative and was assisted by a Pashto interpreter.[14]
[14] Court book at page 197.
The hearing record indicates that the applicant was invited to provide further information by close of business 18 August 2017.[15]
[15] Court book at page 199.
On 3 August 2017, after the hearing, the applicant’s representative wrote to the Tribunal, attaching a complete version of the legal submissions previously provided, the Tribunal member having been made aware at the hearing that only the first page had previously been sent through to the Tribunal.[16] The applicant also provided, through his representative, a revised report from Foundation House which addressed Ms Dayaratne’s opinion on the recommended course of treatment for his multiple psychological conditions, as well as her view on the likely impact that a return to Pakistan would have on his psychological health.
[16] Court book at page 200 and following.
On 17 August 2017, the applicant’s representative sent the Tribunal the applicant’s post-hearing legal submissions as well as other supporting documentation.[17]
[17] Court book at page 238 and following.
On 14 March 2018, the applicant was notified that the Tribunal had decided to affirm the decision under review to refuse him a protection visa.[18]
[18] Court book at page 275 and following.
TRIBUNAL DECISION
The Tribunal’s decision record dated 9 March 2018 is at pages 277 to 304 of the court book.
At paragraphs [1] to [5], the Tribunal sets out the relevant background to the application.
At paragraphs [6] to [11], the Tribunal outlines the legislative scheme and criteria to which it must have regard when considering the grant of a protection visa.
At paragraph [12] and following, the Tribunal goes on to consider the applicant’s claims and evidence. At paragraph [13], the Tribunal summarises the applicant’s claims from his protection visa application, as set out in his accompanying statement of claim.
At paragraph [15], the Tribunal summarises the applicant’s further claims as contained in his statutory declaration declared 31 July 2017 and provided to the Tribunal. This included a further claim that the applicant sometimes undertook night patrols for the Village Peace Committee (‘VPC’), whose role was to co-ordinate the self-defence of the local community against the Taliban, as well as the applicant’s further claim that if returned, he would have to resume night patrols for the VPC on behalf of his family, thereby again putting his life at risk.
At paragraphs [16] to [19], the Tribunal considers the applicant’s legal submissions and report from the applicant’s treating counsellor at Foundation House. At paragraph [20], the Tribunal considers further matters raised by the applicant at the hearing before it on 3 August 2017.
At paragraph [21], the Tribunal acknowledges that an uncorrupted version of the applicant’s legal submissions was provided post-hearing, as well as a revised report from the Foundation House counsellor. At paragraph [22], the Tribunal also makes reference to the applicant’s post-hearing legal submission in response to the matters raised at the hearing. This relevantly included a letter from the applicant’s treating GP, which identified a number of health issues, including mental health issues and symptoms suggestive of post-traumatic stress disorder with features of depression and anxiety.
Having accepted the applicant’s identity,[19] the Tribunal went on at paragraph [26] to consider the applicant’s vulnerability and observed that notwithstanding the fact that the applicant’s comments were at times ‘disjointed or incoherent’, in light of the fact that the applicant had been represented in the proceedings and had provided detailed written statements, the Tribunal was satisfied that the applicant had been able to put his case fully before the Tribunal.
[19] Tribunal decision record dated 9 March 2018 at paragraph [25].
At paragraph [27] onwards, the Tribunal turns to consider the applicant’s credibility. After summarising the relevant case law in relation to making credibility findings, the Tribunal noted at paragraph [32] that the delegate found the applicant ‘generally incredible’ and concluded:
32.… Having carefully considered all of the applicant’s claims and evidence, for the reasons detailed below the Tribunal is also of the view that the applicant is not a credible witness and that he has concocted the key elements of his claims.
At paragraph [33], the Tribunal summarised the applicant’s claims. At paragraphs [34] to [35], the Tribunal outlined the background to the Taliban-related conflict in Swat, including the Taliban’s occupation of Swat between 2007 and 2009.
At paragraphs [36] to [44], the Tribunal considers the applicant’s claimed risk of harm from the Taliban. The Tribunal accepted that the applicant’s family were initially supportive of Fazlullah until about 2008, when Fazlullah’s teachings became violent and challenged the writ of the government.[20]
[20] Tribunal decision record dated 9 March 2018 at paragraph [36].
However, the Tribunal went on to find that the incident involving the applicant being abducted by the Taliban after his father, along with a group of village elders, confronted a group of Taliban members who had occupied a girls’ school near his home, did not occur.[21] The Tribunal noted the different ways in which this incident had been described by the applicant across his various statements. At paragraph [43], the Tribunal found that:
43.Given the improbable nature of the series of events described and the inconsistencies in the applicant’s account … the Tribunal shares the delegate’s concerns regarding this claimed series of events and concludes they did not occur.
[21] Tribunal decision record dated 9 March 2018 at paragraphs [37] to [43].
At paragraph [44], the Tribunal went on to consider the applicant’s further claims that he had been beaten twice by the Taliban and accepted that it was possible that the applicant and other family members may have been harassed and/or beaten by Taliban members for perceived transgressions during 2007 and April 2009, when the Taliban held de facto control of Swat. However, the Tribunal ultimately found that:
44.… [T]he Taliban no longer control Swat and the Tribunal finds that there is not a real chance that the applicant would suffer such treatment if he returned to Swat in the reasonably foreseeable future.
At paragraph [45], the Tribunal considered the claim raised by the applicant at the hearing that if returned to Pakistan, he would have to resume night patrols in his neighbourhood and ‘put himself in harm’s way’. While the Tribunal accepted that the applicant and his family members may have been involved in night patrols, it noted that there was no suggestion that the applicant had faced harm as a consequence of his involvement in the night patrols. Nor did the Tribunal consider that the applicant faced a real chance of suffering serious harm should he be required to undertake night patrols in future due to the improved situation in the Swat region.
The Tribunal also considered the country information which indicated that the security situation in Swat had generally improved, although it accepted that the Taliban still targeted particular groups.[22]
[22] Tribunal decision record dated 9 March 2018 at paragraph [46] and following.
Relevantly, the Tribunal had found that neither the applicant nor any of his family members, including his father, were members of the Kuza Bandai or any other VPC.[23] Accordingly, the Tribunal considered that:
57.… as the applicant is not a member of the key target groups described above … the Tribunal finds that there is not a real chance that the applicant will suffer persecution involving serious harm from the Taliban or associated splinter groups should he return to Swat in the reasonably foreseeable future.
[23] Tribunal decision record dated 9 March 2018 at paragraph [45].
In reaching this conclusion, the Tribunal considered the applicant’s claim that he supported the Pakistan People’s Party (‘PPP’).[24] Ultimately, however, the Tribunal did not consider that the applicant had undertaken or would undertake any activities in support of or on behalf of the PPP that would result in him obtaining a profile as an anti-Taliban political activist, and which might result in him facing a real chance of persecution involving serious harm upon return.
[24] Tribunal decision record dated 9 March 2018 at paragraph [58].
At paragraph [59], the Tribunal considered the applicant’s claims to fear harm from the Pakistan army, including that he and other family members had been arrested by the army on a number of occasions. At paragraphs [60] to [64], the Tribunal considered and accepted the relevant country information in relation to the Pakistan army’s involvement in disappearances and extra judicial killings of captured militants and suspected civilian supporters in Swat.
However, at paragraph [67], the Tribunal concluded that the applicant’s claims in relation to being arrested by the army were ‘improbable’.
At paragraph [68], the Tribunal also found the applicant’s claim in relation to his brother being detained by the army in February 2012 ‘unconvincing’.
Further, at paragraph [74], the Tribunal went on to find that:
74.As the Tribunal does not accept that the applicant, his father and his brother were detained by the Army in July 2010 or that the applicant’s brother was detained by the Army in February 2012 and ‘disappeared’ or killed, the Tribunal does not accept that the applicant, his father and his uncle were detained and tortured by the Pakistani army in 2013 to intimidate them and warn his father against his court proceedings and his constant agitation and inquiries about the applicant’s brother. It follows therefore that the Tribunal does not accept that the applicant was placed on weekly reporting conditions and told he should not go outside Swat without the Army’s permission, or that he was punished for having breached his reporting conditions in January 2014 by being made to stand naked outside in the cold all night.
At paragraph [77] and following, the Tribunal considered, but did not accept, the applicant’s claim to fear harm as a returnee from a Western country. Similarly, at paragraphs [79] and [80], the Tribunal did not accept the applicant’s claims to fear harm as a result of his membership of other particular social groups, namely, former volunteers/supporters of Maulana Fazlullah in Swat, young Pashtun men from Swat Valley and family members of tribal elders.
At paragraph [81], the Tribunal concluded:
81.Considering his circumstances both individually and cumulatively, the Tribunal finds that there is not a real chance that the applicant would suffer persecution involving serious harm from the Taliban or associated militant groups or the Pakistan Army/security forces/Pakistan government as a consequence of an actual or imputed pro-military/pro-government; and/or pro-Taliban; and/or anti-Taliban (including due to any support for the PPP) opinion; and/or because of his membership of any of the four particular social groups … should he return to his home … in the Swat district … now or in the reasonably foreseeable future. …
At paragraph [83], the Tribunal went on to consider whether the applicant met the complementary protection criterion. Relying on its findings in relation to the refugee criterion, at paragraph [87], the Tribunal found:
87.… [T]he Tribunal does not accept that there is a real risk that the applicant will be arbitrarily deprived of his life; and/or will have the death penalty carried out on him; and/or will be subjected to torture; and/or will be subjected to cruel or inhuman treatment or punishment; and/or will be subjected to degrading treatment or punishment, from the Taliban or associated militant groups, the Pakistan Army/security forces/government, or from any other group or individual due to his actual or imputed political opinions, his membership of the particular social groups detailed … above, or anyone else as part of generalised violence, or for any other reason, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan.
Accordingly, at paragraph [89], the Tribunal determined to affirm the decision not to grant the applicant a protection visa.
PROCEEDINGS IN THIS COURT
As stated, the applicant filed this application for judicial review on 18 April 2018, with legal representation.[25]
[25] Originating application filed on 18 April 2018.
The applicant relies upon a singular ground of review, supported by the following particulars:
1.The Tribunal failed to assess an integer of the applicant’s claims to fear serious harm, based on stigma associated with mental health.
Particulars
1.1The Tribunal had before it evidence confirming that the applicant suffered from various psychological conditions. That evidence included:
1.1.1A counsellor’s report from Foundation House issued in 2015 confirming that ‘the applicant’s symptoms are consistent with Post Traumatic Stress Disorder (PTSD)’ and he also ‘presents’ as suffering severe anxiety and depressive symptoms and has ‘presented in counselling with symptoms of generalised Anxiety Disorder, Major Depressive Disorder and Post Traumatic Stress disorder’ (para [19] of decision record);
1.1.2A further report from a Foundation House counsellor issued in 2017 (para [21]); and
1.1.3A letter from the applicant’s treating General Practitioner issued in 2017 which noted Mental health issues: symptoms suggestive of post-traumatic stress disorder with features of depression and anxiety’ and indicated that the applicant had been referred to a psychiatrist for further treatment (para [21])
1.2By way of legal submissions provided by his representatives dated 1 August 2017, the applicant claimed that ‘the level of mental health care and treatment in Pakistan is wholly inadequate’ (at page 30), This claim was supplemented by way of further legal submissions dated 17 August 2017 which indicated that ‘Pakistan has one of the lowest mental health doctor-to-patient ratios in the world’ (at page 12);
1.3Based on this evidence, the applicant raised a claim (either impliedly or directly) to fear harm on return to Pakistan due to the inadequacy of mental health services;
1.4That claim was not dealt with by the Tribunal, either in assessing the applicant’s claims under s 36(2)(a) or 36(2)(aa) of the Migration Act 1958.
On 14 May 2019, various timetabling orders were made by Registrar Luxton, including that the applicant was required to file and serve any amended application, affidavit material and written submissions 28 days prior to the hearing date.
On 25 November 2022, the applicant filed a Notice of Address for Service indicating that he had engaged new legal representation. On 8 May 2023, that firm filed a Notice of Intention to Withdraw as Lawyer.
The hearing proceeded before me on 1 June 2023. The applicant appeared on his own behalf, assisted by a Pashto interpreter. He confirmed that notwithstanding the orders made on 14 May 2019, he had not filed any further material in support of his application in this court.
GROUND OF REVIEW
As outlined above, the application raises one ground of review. That is, that the Tribunal failed to consider an integer of the applicant’s claim, namely that the applicant feared harm based on ‘stigma associated with mental health’.
In the particulars to this ground, the applicant stated that the Tribunal had before it ‘evidence confirming that the applicant suffered from various psychological conditions’. Moreover, the applicant says that it was submitted to the Tribunal that ‘the level of mental health care and treatment in Pakistan is wholly inadequate’.
By this ground, the applicant claims that he raised a claim, either impliedly or directly, ‘to fear harm on return to Pakistan due to the inadequacy of mental health services’, and that the Tribunal failed to consider this claim.
Hearing on 1 June 2023
As stated, the applicant appeared on his own behalf at the hearing before me with the assistance of a Pashto interpreter. Prior to inviting the applicant to make submissions, I confirmed with the applicant that I had all the documents that he had filed in this matter.
I also explained to the applicant in brief terms the role of the court in this matter, and in particular, that this court does not have jurisdiction to review the merits of the matter, but rather, is required to determine whether there has been a jurisdictional error in the way in which the Tribunal made its decision. A failure to consider a claim expressly or impliedly made would amount to a jurisdictional error.
When asked if there was anything that the applicant wanted to say in support of his application and the ground of review raised, the applicant said that he did not know about the legal system, but whatever was in the application was prepared by ‘a lawyer’ and that was all that he wanted to say. When asked if there was anything that he wanted to say as to what the error was that the Tribunal made, the applicant said that the Tribunal did not consider his mental health and put no weight on that.
The Minister submits that irrespective of whether the claim is framed as one of fear of harm on the basis of ‘stigma associated with mental health’ or fear of harm ‘due to the inadequacy of mental health services’, no such claim was expressly made by the applicant nor does one squarely arise from the materials before the Tribunal.[26] Consequently, the Minister submits that there was no failure to consider an integer of a claim that arises from the applicant’s material.
[26] Minister’s Outline of Submissions filed on 17 May 2023 at paragraphs [35] to [47]; NABE v Minister for Immigration and Multicultural Affairs (No 2) (2004) 144 FCR 1 at [58] (‘NABE’); Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [13] (‘Htun’).
In the alternative, the Minister submits that if there is such a failure, there is no jurisdictional error in that the threshold of materiality is not met in this case.[27]
[27] Minister’s Outline of Submissions filed on 17 May 2023 at paragraphs [48] to [49].
I will address each of these arguments in turn. For the reasons which follow, I do not accept the Minister’s submissions and find that the Tribunal’s decision is affected by jurisdictional error in this case and therefore the appropriate orders are those sought by the applicant.
Whether the Tribunal failed to consider an integer of the applicant’s claim
At paragraph [58] of NABE the Full Court of the Federal Court stated:
58.… There is authority for the proposition that the Tribunal is not to limit its determination to the “case” articulated by an applicant if evidence and material which it accepts raise a case not articulated … It has been suggested that the unarticulated claim must be raised “squarely” on the material available to the Tribunal before it has a statutory duty to consider it … The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
The Full Court went on to say at paragraph [61]:
61.… the Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it. The Tribunal’s obligation is not limited to procedural fairness in responding to expressly articulated claims but, as is apparent from Dranichnikov, extends to reviewing the delegate’s decision on the basis of all the materials before it.
Similarly, in Htun, his Honour Justice Allsop, as he then was, said:
42.… The requirement to review the decision under s 414 of the Act requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend … Minister for Immigration and Multicultural Affairs v Yusuf ... [and] Sellamuthu v Minister for Immigration and Multicultural Affairs … It is to be distinguished from errant fact finding. … the Tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant.
The issue is therefore whether a claim to fear harm anywhere in Pakistan, either on the basis of stigma due to mental health or the lack of adequate services to treat the applicant’s mental ill health, could be said to ‘squarely’ arise on the material before the Tribunal.
The Minister concedes that the applicant did raise his mental health at various points in his statements to the Tribunal (and the delegate) and in submissions made on his behalf. However, the Minister submits that this was raised in the context of the Tribunal considering a possible relocation to another part of Pakistan and that claim did not arise for consideration in circumstances where the Tribunal found that there was no risk of harm to the applicant returning to his home area.[28] Therefore, it is submitted that the applicant’s claim is not made out.
[28] Minister’s Outline of Submissions filed on 17 May 2023 at paragraph [40] and following.
It is further submitted for the Minister that in determining what claims were made by the applicant, including what claims could be said to squarely arise from the applicant’s material, the court must have regard to the fact that the applicant was represented at all times, both before the delegate and before the Tribunal, and that the applicant made detailed and comprehensive express claims.[29] I accept that that is a relevant consideration.
[29] Minister’s Outline of Submissions filed on 17 May 2023 at paragraph [47].
I also accept that the applicant has not made an express claim that he fears harm on return to the Swat region, either due to stigma attached to persons suffering from mental ill health or due to the inadequacy of services for people who suffer from mental ill health. The issue before this court is whether it can be said that such a claim arises ‘squarely’ from the applicant’s material.
For the following reasons, I find that when the material before the Tribunal is viewed in its entirety, a claim that the applicant feared harm if he were required to return to Pakistan due to the inadequacy of mental health services and stigma associated with mental ill health in Pakistan does squarely arise for the Tribunal’s consideration.
In the applicant’s statutory declaration made on 31 July 2017, he relevantly says:
74.… it is very hard for me to relive this time. I am still suffering from the effects. I see a member of the police here and it reminds me of how easily I could have been killed on that day, and how frail my life is. I cannot think about that time. It is like reliving it again. …
…
94.Everything that happened had a disastrous effect on my health. I could not continue with my education. I did not have permission to leave Swat, and so I could not enrol in full time study in other places in Pakistan, like other young people my age. I used to be good at studies but there is nothing left. It is like I have no interest in anything anymore.
…
108.But once I arrived in Australia, I found that my mental health became worse and worse. I was preoccupied, at all times, with thoughts of what was happening to my parents back home. My mother told me that after I left, the Army had come many times to inquire where I was and they had to make excuses about where I was. I was terrified of what was going to happen to them.
…
113.Despite all of the support that I have in Australia, my condition has only become worse, not better. It is worst at two times – when I have nightmares and when I read or receive bad news from back home. This starts me on a track of thinking endlessly about the past and about the future. Both ways for me are hopeless.
114.I have thought about ending my life, many times. My life is meaningless, pointless. The only thing that stops me is thoughts of my family and our religion. I believe in God and I think it would be haram to do something like this. But for me, my life is nothing.
115.I do not know how I would go back to Pakistan. I cannot go back to Swat without being taken by the Army and disappeared forever. I cannot go back to any other place in Pakistan. I have nobody in any other area in Pakistan. I have no work experience, limited education – how would I earn a living? How would I survive?
…
117.I do not know how my brain would cope with being back in Pakistan. Even here, where I am safe, I am still filled with fear. I need treatment and counselling every two weeks to make myself stable. I have to take medication to sleep at night. I do not know how I would live in a place where my mind has to deal with bombings and threats and fear at all times. I could not survive it.
118.I cannot go back to Pakistan, under any circumstances.[30]
[30] Court book at pages 169 to 176.
Whilst paragraph [115] of the applicant’s statutory declaration clearly refers to the risk to the him if he were required to relocate and live elsewhere, the same cannot be said of paragraph [117], or indeed, any of the other paragraphs set out above.
In addition, there is other material before the Tribunal about the inadequacy of mental health care in Pakistan, and the stigma associated with mental ill health, which is sufficient to give rise to a claim in the terms now articulated.
At the heart of the Minister’s submission is the proposition that the applicant only raised the issue of his mental health in the context of a potential relocation, in the event that the Tribunal accepted that there was a risk of harm arising in the Swat region. At paragraph [45] of the Minister’s written submissions, the Minister says:
45.Throughout the evidence, the applicant consistently claimed that his mental health would prevent him from reasonably relocating to a different part of Pakistan AND the lack of resources for mental health issues would make it unreasonable for the applicant to relocate outside his home area, should the Tribunal find that he would be at risk of harm in his home area but not elsewhere. The applicant did not claim to fear serious or significant harm in Swat by virtue of his mental health, nor did such a claim clearly arise on the materials.
With respect, I disagree with this submission.
It is apparent from paragraphs [113] to [117] of the applicant’s statutory declaration, set out above, that the applicant claimed to have significant mental health issues, that he had accessed support services for those issues since arriving in Australia and that notwithstanding that assistance, there had been limited, if any, improvement in his condition. Moreover, the applicant claimed that his mental health would deteriorate significantly if he were to have to return to Pakistan.
When read as a whole, it is clear that a claim by the applicant to fear harm due to his mental ill health if he were required to return anywhere in Pakistan, including the Swat region, arises.
In submissions for the Minister, it was, correctly with respect, conceded that the Tribunal does not expressly consider any such claim.
I accept that having rejected the applicant’s claims to fear harm in the Swat Valley from the Taliban and related forces, the Tribunal was not required to consider the prospect of relocation, and to the extent that mental health was raised by the applicant as a reason why he could not be expected to relocate, the Tribunal was not required to consider that aspect of his claim. However, that does not absolve the Tribunal of having to consider a different claim, namely that the mental health issues that the applicant suffered from, precluded him from living anywhere in Pakistan, including in the Swat region.
The Tribunal did not reject the applicant’s evidence that he suffered from mental ill health, nor did the Tribunal make a positive finding that the applicant, notwithstanding his mental ill health, would not face a risk of harm if he were to return to the Swat valley. It simply did not address this aspect of his claim.
Materiality
As stated, in the alternative, the Minister submits that any error made by the Tribunal in not addressing the applicant’s claim to fear harm in the Swat Valley due to his mental ill health is not material.
In this regard, the Minister submitted that it is clear from the legal submissions provided on the applicant’s behalf on 17 August 2017 that the Tribunal had demonstrated in the hearing that it had had regard to the European Asylum Support Office (‘EASO’) reports that mental health services in Pakistan was adequate and could address the applicant’s needs.[31] Moreover, the Minister points to the fact that the Tribunal noted that the applicant was not formally diagnosed with a mental health disorder.[32]
[31] Minister’s Outline of Submissions filed on 17 May 2023 at paragraphs [48] to [49].
[32] Minister’s Outline of Submissions filed on 17 May 2023 at paragraph [48]; Tribunal decision record dated 9 March 2018 at paragraph [19].
It is further submitted by the Minister that in those circumstances:
49.… it should be inferred that the Tribunal apportioned more weight to the EASO reports on the adequacy of mental health services which could attend to the applicant’s needs than the country information put forward by the applicant. Therefore, the consideration of any claims as to the stigma and inadequacy of mental health services, would fail and, the Tribunal would find that the applicant would not face a real risk or real chance of significant harm.
I do not agree with this submission for the following reasons.
First, the threshold for materiality is not a high one.
Second, it is clear from the applicant’s post-hearing written submissions dated 17 August 2017 that the Tribunal had raised some concerns with the applicant about his views of the inadequacies of the mental health system in Pakistan.
Indeed, those submissions commence with the following opening statement:
We provide the following submissions in response to the matters raised at the hearing of 3 August 2017. The issues raised by the Tribunal during the course of the hearing are addressed below in turn.[33]
[33] Court book at page 244.
In these written submissions, under the heading ‘Mental Health’, the applicant’s representative addressed a number of issues. First, they addressed ‘[t]he Tribunal[‘s] expressed reservations’ about the report provided from the applicant’s counsellor at Foundation House.[34] In this regard, in addition to further submissions, the applicant’s representative also provided a medical report from Dr Timlin, which, among other things, indicates that the applicant was referred for further assessment and management to a psychiatrist.[35]
[34] Court book at page 255.
[35] Court book at page 255; Court book at pages 272 to 273.
Further, it was in this context that the applicant’s representative went on to say:
We roundly dispute the Tribunal’s suggestions, based on recent EASO reports, that a recent increase in psychological clinics in Pakistan means that mental health services are adequate in the country or could attend to [the applicant’s] particular needs. …[36]
[36] Court book at page 255.
The applicant’s representative then went on to refer to previous information provided, as well as further information relevant to the state of mental health services in Pakistan.
As the Tribunal did not consider the applicant’s mental health and the impact of this on his ability to return to Pakistan, it is not clear whether these additional submissions and/or information may have resulted in the Tribunal moving away from its initial views expressed at the hearing.
I am therefore not able to accept the Minister’s submission that materiality is not demonstrated in this case.
CONCLUSION
For each of these reasons, I find that the application is made out and I therefore make the orders set out at the commencement of these reasons.
I certify that the preceding one hundred and two (102) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 24 November 2023
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