BZE22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 925
•20 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BZE22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 925
File number(s): MLG 1328 of 2022 Judgment of: JUDGE RILEY Date of judgment: 20 September 2024 Catchwords: MIGRATION – Administrative Appeals Tribunal – cancellation of protection visa – whether the Tribunal failed to consider Australia’s non-refoulement obligations in the context of a supposed relocation and mental health issues – whether the Tribunal engaged in impermissible speculation – whether the Tribunal engaged in irrational reasoning. Legislation: Migration Act 1958 ss.36(2)(aa), 36(2A), 36(2A)(d), 36(2A)(e), 36(2B), 36(3) Cases cited: Ibrahim v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 300 FCR 67; [2023] FCAFC 173
Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; (1995) 69 ALJR 423; (1995) 128 ALR 353; [1995] HCA 20
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; (2022) 96 ALJR 497; 400 ALR 417; [2022] HCA 17
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
Division: Division 2 General Federal Law Number of paragraphs: 60 Date of hearing: 9 September 2024 Place: Melbourne Counsel for the Applicant: Min Guo Solicitor for the Applicant: Carina Ford Immigration Lawyers Counsel for the First Respondent: Kay Chan Advocate for the Second Respondent: No appearance Solicitor for the First and Second Respondents: Sparke Helmore Lawyers ORDERS
MLG 1328 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BZE22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE RILEY
DATE OF ORDER:
20 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The application filed on 7 June 2022 and amended on 14 August 2024 be dismissed.
2.The applicant pay the first respondent’s costs of the proceeding.
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 RILEY:
INTRODUCTION
This is an application for review of a decision made by the Administrative Appeals Tribunal. In that decision, the Tribunal affirmed a decision of a delegate of the Minister to cancel the applicant’s protection visa.
BACKGROUND
In his written submissions filed on 14 August 2024, the applicant provided the following background to this matter:
1.In this matter, the Applicant was granted a protection visa in May 2011. His country of reference was Iraq.
2.In 2017, a delegate of the Minister cancelled the Applicant’s visa, relying on s 109 of the Migration Act 1958 (Cth) (the Act). The factual reason which gave rise to the cancellation power was because the Applicant was said to have provided incorrect information in his protection visa application. In summary, the incorrectness was said to have related to a claim that he feared harm in Iraq, which the delegate thought was inconsistent with him having returned to Iraq when his father was very sick and needed to have heart surgery, such that his protection visa applicant (sic) therefore contained ‘incorrect’ information. The incorrectness was also related to the Applicant having returned to Australia on a genuine Iraqi passport, which was said by the delegate to have meant that his answer that his initial travel to Australia (following which he sought protection) on a false passport was also incorrect.
3.The Tribunal affirmed the decision to cancel the Applicant’s visa. Its reasons of 3 May 2022 describe the factual background, which included that the Applicant’s initial journey to Australia was via Malaysia. The Applicant had tried to set himself up there, but explained that, after 2 years there, the UNHCR had told him that there was still a long wait for resettlement in that country. That, together with being unable to find enough work to survive, led the Applicant to try to come to Australia. To do so, he had to engage successive people-smugglers until he eventually boarded a boat for Australia, in August 2010. Desperate people, of course, do desperate things.
4. The Applicant left Iraq for Malaysia on a passport (the ‘H passport’) which was issued under the ‘Saddam-era regime’. Following the US invasion of Iraq, the interim replacement government cancelled ‘Saddam-era regime’ passports including the H passport. So, the Applicant obtained a new Iraqi passport from the Iraqi embassy in Kuala Lumpur (the ‘G passport’).
5.The Applicant had said in his protection visa application that he travelled to Australia on a false passport. This was at the direction of the people-smuggler, who had taken the Applicant’s genuine Iraqi G passport.
6.The Applicant was eventually granted a protection visa. In May 2012, the Applicant had to return to Iraq to visit his ailing father, who had to undergo heart surgery. As it transpired, the first operation was not entirely successful and the Applicant, again out of family obligation, made another visit to his father in July 2013.
7.Each visit to Iraq was on an Australian-issued titre de voyage.
8.When the Applicant returned to Australia in September 2013, after his second visit, he was in possession of his G passport. The controversy is about how the Applicant came to come back into possession of his G passport, given that he had previously stated that the people-smuggler had taken it. The Applicant’s explanation was that the people-smuggler had arranged for the return of the passport to the Applicant’s family in Iraq. The Tribunal thought this was implausible, and was of the opinion that the Applicant instead ought to have destroyed his passport rather than let the people-smuggler take it. This, combined with the views it took about some of the other evidence from the Applicant, led the Tribunal to an adverse conclusion about the Applicant’s credit, and that the Applicant had provided ‘incorrect’ information about the passport he had previously used, which enlivened the power to cancel the protection visa.
9.Finding that the power to cancel was enlivened, the Tribunal then referred to the factors in reg 2.41 relevant to whether to exercise the discretion to cancel, as well as the additional factors prescribed in policy. In summary, the Tribunal found that some of the factors weighed in the Applicant’s favour, but that ‘greater weight must be given to the non-compliance’.
(footnotes omitted)
In his written submissions filed on 28 August 2024 (and amended on 9 September 2024 to correct court book references), the Minister provided a somewhat different background to this matter, which was as follows:
3. The applicant is a Shia Muslim citizen of Iraq, born in Babil Governorate [CB 37]. He arrived at Christmas Island on 1 September 2010 as an undocumented Irregular Maritime Arrival.
4. On 19 December 2010, he requested a Refugee Status Assessment. His claims were contained in a statement dated 19 December 2010 as follows (also summarised at CB 37):
The country to which I fear returning
5. I fear returning to IRAQ.
Why I left that country
6.Our town was mainly populated by Shia Muslims. A prominent leader in our town Ali-Alsastani, was a peaceful clerk who was supported by many of the town people.
7.I was a follower of Ali-Alsastani and supported his peaceful approach for unity between the Shia and Shia Muslims. He was calling for peace from all parties.
8.The Shia's broke up into 2 different groups, one group was supporting Al-Alsastani and the other group supported Moktada Al Sadir. The Moktada Al Sadir started the Mahdi militia.
9.In 2005 I opened a mobile shop. It became a meeting place for my friends and educated people such as Doctors, Lawyers and other educated people from the community. We used to discuss issues such as forthcoming elections, and what would be good for the whole community.
10.The militia found out what occurred in my shop. Our discussions were always open and available for all to hear. The militia came to my shop to see what was happening at my place of work. They were looking for an opportunity to harass me and told me it was forbidden to download music and to share this music according to their Islamic thinking.
11.There was some conflict of opinion between the militia and me. It turned into an argument and in the heated moment I said something about their leader. I called him an ignorant leader and murderous and killers.
12.The argument got worse and I was threatened I would be killed for having insulted their leader. They then left because they could [not] do much against me whilst there were many people around my shop.
5. The applicant claimed that, after that incident, he moved to Baghdad and lived with his brother from January to May 2006, then to Malaysia, from where he travelled by boat to Indonesia and Australia.
6. In the form accompanying his statement, also dated 19 December 2010, the applicant stated that he lost his Iraqi passport travelling from Malaysia to Indonesia (CB 470 [92]).
7.On 1 May 2011, the applicant made an application for a protection visa. In that application [CB 56]:
7.1 In the section “Travel to Australia”, the applicant gave the following answers:
Q.28 Details of your current travel document
Type of document (e.g. passport): “N/A”
Q.30 Have you ever had, or used, any other passport or travel document?, [“Yes”]
Type of document (eg. passport): “False passport”
Document number: “Unknown”
Country of document: “Unknown”
Name on passport “Unknown”
Where is it now? “Smuggler took it”
7.2 he claimed to fear harm if returned to Iraq because “The militias control the political scene which I oppose. I openly discussed this with my friends and other educated prominent people in our community. I was threatened by the Militia that my thinking was un-Islamic and that I would be punished with dead (sic) for having insulted their leader… I believe if I return to Iraq I would be at a real risk of facing serious harm by the militia and the Al Mahdi army.”
8. On 4 May 2011, he was granted a protection visa [CB 38].
9. Section 109 of the Act allows for cancellation of a visa if there has been non-compliance by the visa-holder with, amongst other provisions, s 101 of the Act; which provides:
A non-citizen must fill in or complete his or her application form in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given or provided.
10. On 11 April 2017, the Department issued a Notice of Intention to Consider Cancellation to the applicant under s 107(1) of the Act [CB1-18]. The Notice stated that:
10.1 Departmental records showed that the applicant departed Australia for Iraq on his Australian Titre de Voyage from 1 May 2012 to 1 September 2012, and from 3 July 2013 to 25 September 2013;
10.2 on 25 September 2013, the Department interviewed the applicant who said that he was in possession of an Iraqi passport. That passport showed entry stamps for Iraq in May 2012 and August 2013, and exit stamps from Iraq in August 2012 and September 2013; as well as departure and arrival stamps and visas for Malaysia, Syria and Iraq throughout 2008, 2009 and 2010 – including [CB 6]:
•22nd May 2009 entry stamp for Holy Najaf International Airport, Iraq
•27th June 2009 departure stamp for Iraq [port name too pale to read]
10.3 the applicant’s answer to Q.30 in his protection visa application was incorrect because “you have travelled back to Iraq twice since your Protection visa subclass 866 was granted without impediment or issue and on both occasions you used your Iraqi passport no. G1766093 to enter and to exit Iraq” [CB 8];
10.4 the claims made in his application to fear harm were incorrect because “your voluntary travels back to Iraq under your true identity without significant issue and with no apparent change in your circumstances or in country information suggests you did not hold the claimed adverse profile nor were you of adverse interest to the militia or al Mahdi at time of your protection visa application” [CB 8].
11. On 8 May 2017, the applicant provided a response to the Notice, denying all allegations in the Notice and stating that he still fears harm on return to Iraq, but returned to visit his father who was in ill health [CB 19-25].
12. On 30 November 2017, a delegate of the Minister cancelled the applicant’s visa on the basis that the applicant had provided incorrect answers in his application for the visa and that the visa should be cancelled [CB 54-70].
13. On 9 December 2017, the applicant applied to the Tribunal for review of the delegate’s decision.
THE TRIBUNAL’S DECISION
In his submissions filed on 28 August 2024 (and amended on 9 September 2024 to correct court book references), at paragraph 17, the Minister provided the following summary of the Tribunal decision:
On 3 May 2022, the Tribunal affirmed the delegate’s decision [CB 443-484]. The Tribunal:
17.1 found that the evidence was strongly suggestive that the applicant’s fears were not genuinely held at the time of his protection visa application, however was not “positively satisfied of the incorrectness of the answers to … questions [43, 44, 45 and 46, regarding his fears if he were to return to Iraq]” (CB 475 [112]-[113]);
17.2 was satisfied that the answer given to question 30 [regrading his G passport] was incorrect and constituted non-compliance with s 101(b) of the Act (CB 471 [95]). The Tribunal found that “the correct information must have included at least the G passport” (CB 470 [88]). Further, the Tribunal noted that the applicant’s evidence contained substantial variations from his previous narratives, the “most obvious of these is his original claim to have lost his Iraqi passport at sea between Malaysia and Indonesia” (CB 478 [120]); his evidence about the timing of and reasons for giving his passport to the smuggler was different (CB 478 [121]), and the Tribunal was not convinced that the applicant would have paid US$1,000 for its return rather than cancel it (CB 478-479 [122]-[123]). The Tribunal concluded it was “more likely than not that the passport was, at all relevant times, either within the control of, or retrievable by, the applicant” (CB 479 [125]);
17.3 taking into account all the discretionary factors, concluded that greater weight must be given to the non-compliance (CB 482 [145]).
MATERIAL RELIED UPON
The applicant relied upon:
(a)his application filed on 7 June 2022 and amended on 14 August 2024 (“the application”);
(b)the amended court book filed on 8 August 2024;
(c)his written submissions filed on 14 August 2024;
(d)the supplementary court book filed on 16 August 2024 (being the Country Information Report Iran published by the Department of Foreign Affairs and Trade on 17 August 2020);
(e)exhibit 1, being a map of Iraq.
The Minister relied upon:
(a)his response filed on 16 February 2018;
(b)the amended court book filed on 14 August 2024; and
(c)his written submissions filed on 28 August 2024 and amended on 9 September 2024.
GROUND 1
The first ground of review in the application is:
The second respondent erred by constructively failing to give consideration to whether the applicant’s removal from Australia would breach Australia’s non-refoulement obligations.
Particulars
(a)In determining whether to exercise its discretion to cancel the applicant's visa pursuant to s 109(1) of the Migration Act 1958, the second respondent determined it relevant to consider whether the applicant’s removal from Australia would breach Australia's international non-refoulement obligations: paras [117] – [118] of the decision.
(b)[struck out in the amended application filed on 14 August 2024]
(c)At paragraph [141] of the decision, the second respondent stated it had assessed the applicant’s evidence against his claims to fear harm for a Convention reason at paragraphs [100] – [112]. However, paragraphs [100] – [112] pertained to whether there was non-compliance in the way described in the s 107 notice and did not involve an active assessment of whether the applicant’s removal would breach Australia’s international non-refoulement obligations.
(d)The second respondent failed to give consideration to whether the applicant’s removal from Australia would breach Australia’s non-refoulement obligations by failing to consider the question of relocation, which was an integral part of considering the existence of non-refoulement obligations.
(e)This error was material for had it not been made, it is possible the Tribunal may have found the applicant’s removal would breach Australia’s non-refoulement obligations and accordingly decide not to exercise its discretion to cancel the visa.
At paragraph 13 of his written submissions in relation to this ground, the applicant submitted that:
Note that this consideration is concerned with non-refoulement obligations as that phrase is ordinarily understood, i.e. as a matter of international law, and not qualified by how Australia has chosen to implement them domestically. Reasonableness of relocation is relevant to the international law assessment of non-refoulement. In any event, reasonableness of relocation is at least relevant to the domestic implementation of complementary protection: s 36(2B)(a).
(footnote omitted)
This submission fails to appreciate that it is only international treaty obligations that Australia has enacted into domestic law that create Australia’s non-refoulement obligations. See, for example, Minister of State for Immigration and Ethnic Affairsv Teoh (1995) 183 CLR 273; (1995) 69 ALJR 423; (1995) 128 ALR 353; [1995] HCA 20 at 286-7, where Mason CJ and Deane J said:
It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute.
(footnote omitted)
In any event, in oral submissions, the applicant accepted that Australia’s non-refoulement obligations, in relation to this ground, consist of the complementary protection provisions in s.36(2)(aa) of the Migration Act 1958, as modified by s.36(2B) of the Act, which relevantly provides that:
However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; …
Ultimately, this ground was that the Tribunal had failed to consider the question of relocation. The applicant noted that the Tribunal said in paragraph 106 of its reasons for decision that:
The preponderance of the country information, therefore, is to the effect that, while the security situation in Iraq generally is poor, the situation in the south of the country is considerably better. …
The applicant argued that the Tribunal did not go through the process of assessing whether it was reasonable for the applicant to relocate to the south of Iraq. That is true. However, the Minister submitted that was because the Tribunal found that:
(a)the applicant did not face a real risk of serious or significant harm anywhere in Iraq; and,
(b)in any event, the applicant actually came from the south of Iraq, and would return there rather than relocate to there if returned to Iraq.
The Minister is correct that the Tribunal’s findings were to the effect that the applicant did not face a real risk of serious or significant harm anywhere in Iraq, for reasons which it gave. The Tribunal said at paragraph 143 of its reasons for decision that:
In all of the circumstances, I am not satisfied that there is a real chance, should the applicant return to Iraq, that he would be persecuted for reason of his race, religion, nationality, membership of a particular social group, or political opinion. Similarly, having considered all of the applicant's claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Iraq now or in the reasonably foreseeable future.
Consequently, it was not necessary for the Tribunal to consider the question of relocation, and this ground cannot succeed.
However, for completeness, I note that there was a major debate at the hearing about whether the applicant came from the south of Iraq. The applicant submitted that the Tribunal never made a finding to that effect.
It is true that the Tribunal did not expressly find that the applicant came from the south of Iraq. However, that was presumably because it was a given that the applicant came from the south of Iraq.
The applicant said in a statement dated 19 December 2010 that he was born in Al-Hindiyah, in Iraq. The applicant produced a map of Iraq, exhibit 1, which shows that Al-Hindiyah is south of Baghdad and west of Al Hillah, which is the modern name for Babylon.
The applicant said in a statutory declaration made on 3 February 2018 that his hometown was Babylon, now known as Al Hillah. The applicant also said that Al-Hindiyah was in the Babil Governorate, which is basically the province around Al Hillah/Babylon.
In a written submission at CB171, the applicant’s advisers said:
Other Southern Provinces
38.Provinces like Babylon, Al Qadisiyah and their capital cities Al Hilal [also known as Al Hillah] and Diwaniya respectively are not immune from bombing incidents, target killing and abductions.
In other words, the applicant’s own advisers identified the province of Babylon, also known as the Governate of Babil, and including Al-Hindiyah, as being a southern province of Iraq.
Similarly, in the same submission, at CB182, the applicant’s advisers said:
GEOGRAPHICAL LOCATIONS
The Mahdi Army [who the applicant claimed to fear] operates entirely within Iraq, mostly in Shiite districts within Baghdad and to the south. … Specifically, they have fought IS in … the Babil province …
The Tribunal recognised that the applicant claimed to come from the south of Iraq when it said at paragraph 105 of its reasons for decision that:
The country information relevant to his particular claims is that which covers the security situation in the south of Iraq, and the activities of the Mahdi Army in that region.
In those circumstances, there was no need to make an express finding that the applicant came from the south of Iraq. It was what he claimed. There was no need for the Tribunal to consider the reasonableness of relocation, because the applicant would not relocate to the south of Iraq. He would simply return there. For this reason also, ground 1 cannot succeed.
There was also a major and pointless debate at the hearing before this court about whether the Authority had considered Australia’s non-refoulement obligations with reference to Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; (2022) 96 ALJR 497; 400 ALR 417; [2022] HCA 17. The debate was pointless because the Authority did consider Australia’s non-refoulement obligations as they applied in this case. The Authority considered at length the risks that the applicant faced in Iraq, and then said:
140.I have given careful consideration to the issue of Australia's non-refoulement obligations in the context of this application.
141.At paragraphs 100 to 112 above, I assessed the applicant’s evidence against his claims to fear harm for a Convention reason. I found that it was not appropriate to treat his refugee claims as the provision of false information for the purpose of the cancellation decision. I did however, at paragraphs 102 and 106, indicate that I was not satisfied that his claims of the threats he received in Iraq are credible, or that as a member of the Shia community in southern Iraq, or as a self-described social activist, he would be of interest to the Mahdi Army or its successor organisations. I also do not accept his evidence that his travel to Iraq required the caution he claims or, at least on one of the occasions, was necessarily motivated primarily for compassionate reasons.
142. The evidence suggests that he has extensive familial links and access to support and accommodation should he return.
143. In all of the circumstances, I am not satisfied that there is a real chance, should the applicant return to Iraq, that he would be persecuted for reason of his race, religion, nationality, membership of a particular social group, or political opinion. Similarly, having considered all of the applicant's claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Iraq now or in the reasonably foreseeable future.
144. I therefore do not consider that [the applicant’s] return to Iraq would breach any of Australia's non-refoulement obligations.
The applicant argued, notwithstanding those paragraphs, that the Authority had not considered Australia’s non-refoulement obligations as they applied to the applicant because it did not consider the reasonableness of the applicant’s relocation to southern Iraq. However, for the reasons discussed above, the applicant did not need to relocate to southern Iraq, because that is where he came from. Moreover, as discussed above, the Authority found that the applicant would not face a real risk of serious or significant harm in Iraq as a whole.
Ground 1 is not made out.
GROUND 2
The second ground of review in the application is:
Further or in the alternative, the second respondent erred by failing to consider the applicant’s mental health conditions in determining whether the applicant’s removal from Australia would breach Australia’s international non-refoulement obligations.
Particulars
(a)As detailed at 1(a) – (b), the second respondent determined it relevant to consider whether the applicant's removal from Australia would breach Australia's international non-refoulement obligations and was unable to defer this assessment until a latter application for a protection visa.
(b)At paragraph [130] of the decision, the second respondent accepted the applicant had been diagnosed with depression and post-traumatic stress disorder and had been taking prescribed medication for these conditions. The second respondent further accepted the cancellation has had an adverse effect on the severity of the applicant’s conditions.
(c)Notwithstanding this, the second respondent did not consider the applicant’s mental health conditions in assessing whether the applicant’s removal would breach Australia’s international non-refoulement obligations.
(d)The second respondent consequently did not consider the DFAT Country Information Report, Iraq, dated 17 August 2020 which provides at para 2.37: The absence of community-based mental health care means often the only care available is family-based or in psychiatric institutions, which have been linked to inhumane treatment and degrading living conditions. There is significant societal stigma against those suffering from mental health issues, which results in under-reporting of problems and under-utilisation of the services that are available.
(e)This error was material for had it not been made, it is possible the Tribunal may have found the applicant’s removal would breach Australia’s non-refoulement obligations and accordingly decide not to exercise its discretion to cancel the visa.
The applicant conceded that he did not expressly claim that, upon return to Iraq, his mental health issues would lead him to face “inhumane treatment or degrading conditions”, such as have been linked to psychiatric institutions. Rather, the applicant argued that the claim clearly arose from the materials that his mental health issues might lead him to face “inhumane treatment or degrading conditions” upon return to Iraq. The applicant also argued that “inhumane treatment or degrading conditions” resembled the definition of significant harm in s.36(2A)(d) and (e) of the Act, which provide:
A non-citizen will suffer significant harm if:
…
(d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
The materials that the applicant relied upon to establish that the claim clearly arose were:
(a)a medical certificate dated 3 May 2013 saying that the applicant had temporary depression and post-traumatic stress disorder for which he was prescribed medication (CB198);
(b)a medical certificate dated 2 April 2015 saying that the applicant was unfit for work for the period 13 March 2015 to 19 March 2015 (CB199);
(c)a letter dated 22 June 2015 from a psychologist, Dr Worthington, saying that the applicant attended upon him on 8 April 2015 for anxiety and they did some relaxation and “gentle exposure therapy” (CB200);
(d)a letter dated 24 July 2015 from a psychiatrist, Dr Astill, to Centrelink, noting the applicant had a depressive illness and post traumatic stress disorder and asking that he be permitted to study part-time to improve his symptomatology (CB201);
(e)a letter dated 24 July 2015 from Dr Astill to the Queensland Department of Housing, Local Government, Planning and Public Works noting that the applicant has post traumatic stress disorder and a depressive illness and asking that he be given accommodation where he can live alone, rather than in his then current share house accommodation (CB202);
(f)a letter dated 7 January 2016 from a psychologist at Queensland University of Technology to “To whom it may concern” saying that the applicant had a history of post traumatic stress disorder and depression, noting that he had to withdrawn from his studies in the previous semester and recommending that he be given suitable accommodation to enable him to complete the eight subjects he needs to qualify (CB203);
(g)a medical certificate dated 23 January 2018 from Buranda Family Medical Centre saying that the applicant has attended the clinic since 12 November 2013 for depression (CB204);
(h)a letter dated 23 January 2018 from East Brisbane Medical Centre to “To whom it may concern” saying that the applicant had attended the centre on 9 May 2013, 23 May 2013, 20 June 2013, and 6 December 2013 for depression and dermatitis (CB205);
(i)a letter dated 22 July 2020 from a consultant psychiatrist, Dr Alam, to “To whom it may concern”, saying that the applicant has a history of major depression which is treated with 50mg of Zoloft daily, and previously, psychology sessions, and asking that the Tribunal consider his case with priority (CB245);
(j)a letter dated 12 October 2020 from a psychiatrist and psychotherapist, Dr Baqir, to a medical centre, saying that the applicant had been his patient since 8 September 2020, he has chronic depression and chronic post traumatic stress disorder and the psychiatrist had changed the applicant’s medication to Duloxetine 60mg and Seroquel 25 mg (CB246);
(k)the Department of Foreign Affairs and Trade Country Information Report, Iraq, dated 17 August 2020 which stated at para 2.37:
… The absence of community-based mental health care means often the only care available is family-based or in psychiatric institutions, which have been linked to inhumane treatment and degrading living conditions. There is significant societal stigma against those suffering from mental health issues, which results in under-reporting of problems and under-utilisation of the services that are available[; and]
(l)the Tribunal’s own findings at paragraph 130 of its reasons for decision that:
The applicant has also provided medical reports, from Dr Richard Astill, a psychiatrist. Dr Astill diagnosed a depressive illness and post traumatic stress disorder in 2015. There are also reports from psychologists and general practitioners from 2016 to 2018 that the applicant has been seen for depression. I have had particular regard to a report from Dr Yaser Baqir, a psychiatrist, dated 12 October 2020. Dr Baqir reports that the cancellation of the applicant's visa in 2017 has had an adverse effect on his depression and PTSD. The applicant has been prescribed medication for these conditions. I give this some weight in favour of the application.
The Tribunal did not expressly make any findings about the applicant’s mental health issues, but it appears to have implicitly accepted all of the evidence put forward by the applicant about his mental health. That evidence was not accompanied by any particular submissions about the significance of the applicant’s mental health issues.
The Tribunal considered the applicant’s mental health issues in paragraph 130 of its reasons for decision under the heading, “The present circumstances of the visa holder”, and not under the heading “Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement or family unity obligations”. The applicant argued that the Tribunal therefore did not consider the applicant’s mental health issues in the context of its consideration of non-refoulement. I accept that contention.
However, the preliminary question is whether a claim that the applicant might face cruel or inhuman or degrading treatment clearly arose from the materials by reason of the applicant’s mental health issues. I do not accept that such a claim did clearly arise.
While, in general, it is not for this court on a judicial review application to look at the merits of the case, in the present context the court must examine the evidence to see if the relevant claim arose. The evidence showed that the applicant had mental health issues from 2013 until 2020, which were treated with medication and psychotherapy. There was nothing to suggest that the applicant had ever been in a psychiatric institution or would ever need to be in a psychiatric institution. Therefore, there was nothing to suggest that the applicant would face the prospect of cruel, or inhuman or degrading treatment in an Iraqi psychiatric institution if he returned to Iraq.
It follows that the claim that the applicant could face cruel, inhuman or degrading treatment in Iraq by reason of his mental health issues did not clearly arise from the materials, and it was not a jurisdictional error for the Tribunal to not consider the applicant’s mental health issues in the context of considering the non-refoulement obligations.
There is the additional point that saying that cruel, inhuman and degrading conditions are “linked” to psychiatric institutions in Iraq is somewhat vague. Arguably, even if there were some reason to suppose that the applicant might be admitted to a psychiatric institution in Iraq, the use of the word “linked” might meant that the claim was not clearly raised on the materials.
There was also a major debate at the hearing before this court about whether, in determining whether a claim clearly arose on the materials, the court could take into account the Tribunal’s own findings. For the reasons discussed above, even taking into account the Tribunal’s own findings, the claim did not clearly arise on the materials, so the debate was irrelevant.
In any event, the debate centred on Ibrahim v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 300 FCR 67; [2023] FCAFC 173. That case concerned an application to revoke a cancellation decision under s.501CA of the Act. In such cases, Direction 90 applied under s.499 of the Act, and the decision-maker could only consider matters put forward by the applicant, or that clearly arose from the materials, as reasons for the revocation. In paragraph 75 of Ibrahim the Full Court said:
In a particular case, the fact that a decision-maker made a finding upon a particular matter might be relevant to the Court’s determination of whether the matter clearly arose on the material as a reason advanced for revocation of the cancellation decision. That is not so in the present case. …
In other words, whether a finding could be used to establish that a claim clearly arose on the materials is fact-dependent. There is not a categorical rule that a decision-maker does not have to take into account its own findings in deciding whether a claim clearly arose on the materials, even in a s.501CA case.
In the present case, it is a moot point, because the so-called findings do not add anything to the evidence. The Tribunal implicitly accepted it.
Be that as it may, ground 2 is not made out.
GROUND 3
The third ground of review in the application is:
The Tribunal engaged in impermissible speculation, and there was no evidence to support, its ‘finding’ that the Applicant’s protection visa had been granted ‘in part, on possible inquiries not undertaken because of the provision of incorrect information’ (at paragraph 127).
This ground concerns paragraph 127 of the Tribunal’s reasons for decision, which is as follows:
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
127. The applicant's incorrect information as to his passport precluded its production to the Department in the course of its determination of his protection visa application. Its production would have alerted the Department as to the applicant’s return travel to Iraq in 2009, and as to his immigration status in Malaysia, which may well have presented a different profile than that described in his refugee status assessment of 4 March 2011. I find that the decision to grant his protection visa was based, in part, on possible inquiries not undertaken because of the provision of incorrect information. I can give no weight to this factor in favour of the application.
The applicant accepted that the no evidence ground could not succeed if there were even a scintilla of evidence in support of the relevant finding. However, the applicant argued that there was not a scintilla of evidence in the present case, because the Tribunal’s finding was based on possible enquiries that were not identified. The applicant argued that it was impossible to conceive of what those enquiries might have been, and, in any event, the court should not go down that path because it would involve rewriting the Tribunal’s reasons for decision.
However, that argument misreads paragraph 127 of the Tribunal’s reasons for decision. The Tribunal’s reasons for decision state that, if the applicant had produced his passport to the Department, that would have:
… alerted the Department as to the applicant’s return travel to Iraq in 2009, and as to his immigration status in Malaysia, which may well have presented a different profile than that described in his refugee status assessment of 4 March 2011. …
The Tribunal then referred to “possible inquiries not undertaken”. The Tribunal clearly had in mind inquiries about the applicant’s immigration status in Malaysia. As the applicant was able to come and go from Malaysia, it was possible that inquiries would have shown that the applicant had a right to enter and reside in Malaysia, and thus was not eligible for a protection visa in Australia.
That is because s.36(3) of the Act provides that:
Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
It is not fanciful that the applicant might have had a right to enter and reside in Malaysia. On the applicant’s own case, he had a student visa to do a Master’s degree in Malaysia, which expired in May 2009. He then got another student visa, and a scholarship, to do a PhD in Malaysia starting in July 2009, and which he expected to take five years: see paragraphs 30 to 32 of the Tribunal’s reasons for decision. The applicant arrived on Christmas Island on 1 September 2010. That was well within the five years that his student visa to do the PhD in Malaysia would have lasted.
In these circumstances, there was ample evidence that the applicant’s protection visa was granted in circumstances where it might not have been if enquiries had been undertaken about the applicant’s immigration status in Malaysia, which had every appearance of a right to enter and reside in Malaysia.
This ground is not made out.
GROUND 4
The fourth ground of review in the application is:
The Tribunal engaged in illogical or irrational reasoning, or took into account an irrelevant consideration, when forming an adverse opinion about the Applicant’s credit by reference to the fact that he had failed to previously make protection claims against a third country (at paragraphs 32-33).
Paragraph 32 and 33 of the Tribunal’s reasons for decision are as follows:
32.The Tribunal suggested to the applicant that the tuition fees for the three years of the PhD program for which he had been accepted, and for which he had been granted a visa in Malaysia, were in the order of what he had paid for passage to Australia. Why, then, had he decided to come to Australia? He said that had contacted the first smuggler after completing his master's degree in 2008. At the time, all the money he had was US$5000. He said that, as he had previously explained, his work had dried up and he did not think he could support himself for the five years it would take to complete the PhD - he needed an additional two years because his English was not then of an adequate standard. This had not been such an obstacle to his master’s because he had completed it by coursework. The Tribunal put it to him that, notwithstanding his claimed straitened circumstances, he was still able to come up with the additional US$3750 for the people smuggler and also to fly back to Iraq and Syria to visit his parents from time to time. Further, in Malaysia, he had all the opportunities he had been seeking: he had been accepted into the PhD program and been granted a visa to complete it. He also had the funds for tuition and the likely prospect of teaching work while undertaking the degree. He said that his master’s degree had come with subsidised accommodation, but that accommodation in Kuala Lumpur was expensive. Further, he did not feel safe in Malaysia because he had been targeted as a Shia.
33.The Tribunal put it to the applicant that this was a new claim. He said that, when he first came to Malaysia, he felt generally uneasy because of the attitude of other students to his Shia identity. While he was there, the Malaysian government had adopted an explicit anti-Shia policy, and this caused him fear. The Tribunal indicated that it might accord less credence to a new claim made so long after first seeking a protection visa. In addition, it may cause the Tribunal to question the motives of making a fresh claim at this time.
The applicant submitted that paragraphs 32 and 33 of the Tribunal’s reasons for decision contain findings. However, those paragraphs do not contain findings. They are simply the summary of what was said at the Tribunal hearing. That is made obvious by the words, “The Tribunal indicated that it might accord less credence” and “it may cause the Tribunal to question the motives”. The Tribunal, at the hearing, was just indicating the view it might take when it came to write its reasons for decision. It was not stating its conclusions, or findings.
Obviously, decision-makers say all sorts of things during hearings that they later think better of, or just think are irrelevant, and that do not become part of their reasoning. That is what appears to have happened in this case.
The fact that the applicant did not say that he was fearful in Malaysia until the Tribunal hearing in relation to the cancellation of his protection visa did not figure at all in the Tribunal’s reasoning about the applicant’s credibility or otherwise. The Tribunal had substantial reasons for doubting the applicant’s credibility, most significantly that he had previously claimed to have lost his passport at sea, but later said that he gave it to a people smuggler.
Nevertheless, the applicant argued that credibility findings are not linear (VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [79]), and that the “finding” about the applicant being fearful in Malaysia was irrational and could have infected the balance of the Tribunal’s credibility findings about the applicant.
The irrationality was said to be that, because the applicant was seeking a protection visa by reference to Iraq, it was irrelevant that he might have felt fearful in Malaysia, and there was no reason for him to have mentioned his fear in Malaysia until he was asked about why he left Malaysia by the Tribunal.
However, the fact is that the applicant himself said why he left Malaysia in his statement dated 19 December 2010 but did not say it was because he was fearful by reason of being a Shia. He said:
16.I had limited options where to go. I was told that there was an UNHCR office in Malaysia and decided to travel there to register as an asylum seeker. I was accepted as a refugee in 2006.
17. I took up studies at University of Malaysia and was able to do some work in student recruitment. Through this I was able to fund my studies. When I finished my studies I found it difficult to excist (sic) in Malaysia. I did not receive any money or support from the UNHCR, I was afraid I would be able to exist in Malaysia and therefore decided to come to Australia to seek further protection.
18. I then decided to go to Australia. I was caught several times leaving Malaysia and in the process was detained for 3 months. On the third time I was finally able to leave Malaysia and travel by boat to Indonesia.
Clearly, the applicant meant that he was afraid he “would [not] be able to exist in Malaysia”. The applicant obviously meant that he would not be able to exist in Malaysia for financial reasons. As the applicant had proffered a reason for leaving Malaysia, it would not have been irrational for the Tribunal to observe that the applicant had not previously said that he was fearful in Malaysia as a Shia.
For these reasons, this ground is not made out.
CONCLUSION
As none of the applicant’s grounds has been made out, the application will be dismissed with costs. I will hear the parties on the quantum.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley. Associate:
Dated: 20 September 2024
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