CAF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 93
•27 January 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
CAF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 93
File number(s): BRG 200 of 2020 Judgment of: JUDGE EGAN Date of judgment: 27 January 2021 Catchwords: MIGRATION – application for Safe Haven Enterprise Visa – adverse credibility findings by Authority – claims of applicant earlier accepted as truthful by Minister’s delegate and psychologist – whether Authority ought to have considered contents of scientific journal articles which supported the proposition that sufferers of major depressive illness and PTSD experience memory deficits – whether Authority ought to have conducted interviews with applicant or psychologist or both – failure by Authority to consider clearly articulated argument of a substantial nature – jurisdictional error established – application allowed. Legislation: Migration Act 1958 (Cth), ss 46(1), 473CA, 473CB, 473DD, 473DC. Cases cited: ABT17 v Minister for Immigration & Border Protection [2020] HCA 34.
AYY17 v Minister for Immigration & Anor (2018) 261 FCR 503.
CAF17 v Minister for Home Affairs [2019] FCA 2203.
CPR17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1212.
Kathiresen v Minister for Immigration and
Multicultural Affairs [1998] FCA 159
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421.
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Border Protection v WZARH
(2015) 256 CLR 326.
Nabe v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1.
Tonari v R [2013] NSWCCA 232.
Number of paragraphs: 40 Date of last submission/s: 22 January 2021 Date of hearing: 21 January 2021 Place: Brisbane Counsel for the Applicant: Mr Karp Solicitors for the Applicant: Fisher Dore Counsel for the Respondents: Ms Hoiberg Solicitors for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance save as to costs ORDERS
BRG 200 of 2020 BETWEEN: CAF17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
27 JANAURY 2021
IT IS ORDERED THAT:
1.The Further Amended Application for Review filed on 21 January 2021 be granted.
2.The decision of the Immigration Assessment Authority made on 2 March 2020 be quashed.
3.A writ of mandamus issue directed to the Immigration Assessment Authority requiring it to determine according to law the Applicant’s application for review of the Second Respondent’s decision, and that the matter be remitted to the Immigration Assessment Authority for rehearing.
4.For the purpose of the Immigration Assessment Authority again determining the Applicant’s application, that it be constituted by a different member than the member who handed down the decision on 2 March 2020.
5.The First Respondent pay the Applicant’s costs of and incidental to the application for review fixed in the amount of $7,467.00.
REASONS FOR JUDGMENT
JUDGE EGAN:
Introduction
The applicant is a citizen of Afghanistan who arrived in Australia as an unauthorised maritime arrival on 1 November 2012. Upon the raising of the s. 46(1) bar, the applicant was invited to apply for a Safe Haven Enterprise Visa (SHEV) on 23 December 2015. The applicant made such application on 23 January 2016.
The SHEV application was rejected on 22 December 2016 on the basis that the applicant could safely relocate within Afghanistan to Kabul in safety. The matter was then referred to the Immigration Assessment Authority pursuant to the provisions of s. 473CA of the Migration Act 1958 (Cth) (“the Act”).
It is of some significance that though the delegate rejected the application for the visa, the delegate nonetheless accepted the truth of the applicant’s claims concerning his life in Afghanistan. The relevant parts of the decision of the delegate, in that regard, were as follows: [1]
[1] Court Book (CB) pp. 176 – 177.
“Part 4: Findings of Fact
Hazara Shia
I accept the applicant's religion is Muslim Shia and he is of Hazara ethnicity. I make this finding on the basis that the applicant's statements regarding his religion and ethnicity are consistent with the information provided in his Protection visa application and the information he has previously provided to the department at his entry interviews.
The applicant appeared to speak the Hazaragi language fluently and his appearance is assessed being Asiatic, which is consistent with the country information which states that ethnic Hazaras tend to speak Hazaragi, a dialect of the Persian (Farsi) language and distinguishable from other Afghans by their Asiatic features.
Home area
I accept the applicant's home area is the Shaikh Ali district of Parwan province in Afghanistan. I make this finding on the basis of the applicant's residential history and while I acknowledge the applicant has relocated a number of times due to the insecurity in Parwan province, notably each time the applicant has returned to [District A] of Parwan province. Furthermore, I also have had consideration for the country information that there are a small amount of Hazaras residing in [District A] and [District B] districts of Parwan provinces.
Incidents between 1998 and 2011
I accept the applicant's claims as outlined in his statutory declaration dated 18 January 2016. More specifically, I accept that the applicant:
•In 1998, the applicant worked as a truck driver transporting cooked food to Hezbe Wahdat members who were on the front line in Shaikh Ali in Parwan province and who were defending the area from the Taliban.
•In 1998, the applicant's truck was forcibly taken by the Taliban and his brother killed.
•In 1998, the applicant and his family fled their home in [Town A] in Parwan province and sought safety in [Town B] in Balkh province.
•In 1998, the applicant and his family fled [Town B] in Balkh province after it was captured by the Taliban and returned to their home in [District A] in Parwan province.
•Between 1998 and 2000, the applicant was targeted, arrested and beaten by the Taliban because he was a Hazara. The applicant was released upon payment of money.
•Between 2000 and 2006, the applicant and his family relocated to the Haji Camp in Pakistan to avoiding the fighting in his home area of Parwan province.
•Between 2006 and 2011, the applicant worked as a truck driver transporting goods between Kabul, [District A] district in Parwan province and [District C] district in Bamiyan province.
•In 2010, the applicant received a call from the Taliban demanding that he pay them a religious donation. The applicant refused to pay the money as demanded and reported the Taliban's to the Governor. The applicant received further calls from the Taliban demanding the payment of money.
•In 2010, the applicant's brother was shot by the Taliban because the applicant had not paid the religious donation as demanded. The calls from the Taliban demanding the payment of religious donations recommenced. The applicant was told if he did not pay the money the Taliban would go to his home and kill him.
•In 2011, the applicant and his family moved to Kabul to avoid being harmed by the Taliban.
I have accepted the above claims on the basis of a number of considerations including the applicant's demeanour at the protection visa interview and the consistency of the applicant's statements with the country information.
At the Protection visa interview the applicant had no difficulties in providing oral statements which were consistent with his statutory declaration. The applicant was calm for the majority of the interview becoming emotional when providing further details regarding the deaths of his two brothers.
Furthermore, I have also had consideration for the applicant's claims against available country information and I am satisfied they are generally consistent. Country information reporting that in 1998 serious fighting between the Hezbe Wahdat and Taliban took place in Shaikh Ali in Parwan province. In August 1998, the fighting intensifying with the Taliban taking control of the Northern provinces including the areas of Mazar-e-Sharif and Pui-i-Khumri and persecuting people of Hazara ethnicity. In 1999/2000, the fighting in Parwan province again intensified with the reports of approximately hundreds of thousands being displaced.
In 2006/2007, country reports states that the threat level in Parwan was moderate with limited activities by the Taliban with a survey indicating that less than 5% of the population describing the security situation in Parwan province as bad. However, in 2011/2012 country reports indicating an increase in attacks by the Taliban with the area of Ghorband reported as being essentially under the full control of the Taliban. The Taliban reported to be active in imposing taxes and the collection of zakat (religious taxes) upon villagers living in areas under their control.”
(Footnotes omitted and locations anonymised)
The Immigration Assessment Authority (“the First Authority”) affirmed the decision of the delegate on 7 April 2017 (“First Authority Decision”). An application for review of the decision of the First Authority was dismissed by order of a Judge of the Federal Circuit Court. That decision was appealed. In allowing the appeal, Greenwood J, in CAF17 v Minister for Home Affairs [2019] FCA 2203 at [69] – [72] inclusive, said as follows:
“[69] I am satisfied that the question upon which this appeal now turns is not a matter which was expressly put to the Authority. That is to say, the appellant did not expressly put to the Authority the proposition that in considering whether it would be reasonable for the appellant to relocate to Kabul, the Authority ought to take into account an objection that it would not be reasonable for the appellant to so relocate having regard to the personal and/or traumatic circumstances the appellant had experienced as found on the facts by the Authority. However, when the totality of the factual circumstances of the appellant are considered as raised on all the material before the Authority, it can be seen, as the primary judge observed, that the appellant must have been affected by these circumstances: over the past 18 years he has experienced the murder of one brother at the hands of the Taliban; another brother having “gone missing” and presumably murdered in circumstances reinforcing threats upon the appellant’s family; a need to flee Afghanistan to Pakistan; systematic beatings by the Taliban; extortion by the Taliban; another brother having been murdered by the Taliban; and a need in the appellant to flee from the Taliban and relocate to Kabul and then flee from Kabul to Australia. Not only were these matters raised by the material but they were the subject of findings in favour of the appellant. Having regard to the totality of those experiences, a question rationally arises about whether those matters have a role to play in deciding the question of whether it is reasonable, having regard to the practicalities judged in the light of all of the particular circumstances of the appellant, for the appellant to relocate to Kabul.
[70] In determining the reasonableness of relocation to Kabul, the Authority took into account the matters set out at [38] and although the Authority has comprehensively addressed those matters, it seems to me that it remained necessary as a question of the proper approach to s 36(2)(aa) and s 36(2B) to ask the question, in the context of the relocation analysis, of whether the factual findings about the appellant’s difficult personal circumstances should be weighed in the balance in deciding whether it is reasonable to expect him to relocate to Kabul.
[71] The primary judge proceeded on the basis that if someone in Australia had been subjected to analogous personal circumstances, abhorred by the general population, “there would be all sorts of trauma suffered”. But recognising those matters in the case of someone in the position of the appellant from Afghanistan “is making a very grave assumption that may not actually be the case”. However, the material before the Authority made it plain that the appellant was anxious and concerned about circumstances in Kabul. That anxiety was based upon a contention of exposure to “significant harm” and the Tribunal found that there would not be such exposure in Kabul. However, the appellant was clearly saying that there were other circumstances or a lesser level of harm or anxiety attached to his being relocated to Kabul and it seems clear enough that he was suggesting that he feared being in Kabul and thus would not want to relocate to Kabul. It seems to me that the Authority ought to have recognised, without any disrespect to the decision‑maker, that a question alive before the Authority on the material before the Authority and in light of the Authority’s findings, was whether it was reasonable for the appellant to relocate to Kabul in the circumstances, that is to say, having regard to the personal circumstances of the appellant, as found.”
[72] Accordingly, the primary judge fell into error in failing to recognise that matter. The Authority fell into jurisdictional error by failing to address the question required in discharging the Authority’s function under the Act. The orders of the primary judge are to be set aside and in their place, the constitutional writs are to issue and the matter remitted to the Authority for determination according to law having regard to the requirement to take into account on the question of relocation, the personal circumstances of the appellant, as found.”
(Underlining added)
A differently constituted Immigration Assessment Authority (“the Authority”) again affirmed the decision of the delegate in reasons handed down on 2 March 2020 (“Second Authority Decision”). That Authority had, after the handing down of Justice Greenwood’s judgment on appeal, received substantial further submissions, as well as a report dated 29 January 2020 written by a psychologist named Dr Oertel. The preparation of that psychologist’s report was, understandably, most likely prompted by Justice Greenwood’s findings as set out above.
Consideration of Applicant’s Claims by the AuthorityAt [3] of its reasons, the Authority noted that it had had regard to the material provided to it by the Secretary of the Department pursuant to the provisions of s. 473CB of the Act.
At [4] of its reasons, the Authority chronologically recorded the Authority’s receipt of, and content of, material sent to it relevant to the applicant’s claims as follows:
•“The applicant’s SHEV application contained his original Statement of Claims. During the Departmental assessment of his claims, the applicant also provided a range of other information said to relate to conditions in Afghanistan, including materials related to the situation for Hazara in the country such as maps, timelines and information from a Hazara community group, a 2016 letter from the Blue Mountains Refugee Support Group (BMRSG) and a letter from an Australian academic. I have considered all of this material.
•In August 2016, the applicant submitted a post interview submission and a Statutory Declaration (2016 Statutory Declaration) to the Department. The Post Interview Submission and the 2016 Statutory Declaration were before the delegate. I have considered these documents.
•In October 2016, after s.65 decision had been made by the delegate, the applicant sent an email which contained a Submission to the IAA (the October 2016 Submission). The email included a copy of a receipt from a transfer of funds the applicant had sent to his family in Afghanistan (the Money Transfer). The October 2016 Submission was not before the delegate, nor was the Money Transfer. They are both new information.
•In December 2016, the applicant sent a five-page country information Submission to the IAA which related to the then security situation in Kabul (the 2016 Country Information Submission). The 2016 Country Information Submission did not refer to the applicant’s personal circumstances or his specific claims for protection. This document was not before the delegate, it is new information.
•In March 2017, the applicant sent a 35-page document titled further submissions to the IAA. This document consisted entirely of country information and did not address the applicant’s personal circumstances or his specific claims (the 2017 Country Information Submission). The 2017 Country Information Submission was not before the delegate, it is new information.
•On 30 January 2020, the applicant sent through a 13 page Psychologist’s Report which outlined a number of concerns in relation to the applicant’s mental health. The Psychological Report was not before the delegate. It is new information.
•On 5 Feb 2020, the applicant sent through a document which recorded a number of remittances that the applicant had made for his family in Afghanistan (the Remittance Advice). The Remittance Advice was not before the delegate. It is new information.
•On 6 February, the applicant sent through a Submission to the IAA (the 2020 Submission). This document argues against the findings of the s.65 decision by the delegate and the original IAA decision.
•The same email included a submission on why the IAA should consider new information provided in the 2020 Submission (the s.473DD Submission) which I have considered, and a document which included copies of two academic articles related to Post Traumatic Stress Disorder (PTSD). The articles about PTSD were not before the delegate, they are new information.”
At [25] of its reasons, the Authority recorded the applicant’s claims for protection as follows:
•“He is an Afghan citizen of Hazara ethnicity and an adherent of the Shia faith. He was born in 1974 and lived for most of his life in [Village A] village in Shaikh Ali District, Parwan Province, Afghanistan with his family. He was married in 1993 and has four children. He and his brothers worked as truck drivers and owned several vehicles.
•Around 1998 he was contracted by the Hezb-e Wahdat (HeW), a Shia Party, to deliver food within [District A] District to front-line military groups who were fighting the Taliban. He did this job for about 14 months before his contract ended.
•After his contract with HeW ended, he worked by delivering goods between Mazar-e- Sharif, Ghazni, Bamyan and Pol-e Khomri. Security in his village declined as the front moved closer to his home. He moved his family to [District B] and lived there for around six months.
•During the period he spent living in [District B], members of the Taliban came to the family home and attempted to confiscate one of the applicant’s trucks. A confrontation ensued and the applicant’s brother (B1) was shot dead. The truck was confiscated by the Taliban.
•Further fighting occurred around [District B] and the applicant and his remaining family fled to [Town A]. After they had been living in [Town A] for around three months, the Taliban attempted to capture the city and fighting broke out. During the fighting, the applicant and his family decided to flee [Town A]. One of the applicant’s brothers (B2) became separated from the family at this time and has not been seen since.
•The family returned to [District B] and live there for another two years. During this period, the applicant and his family searched for B2 but were unable to find him. He is presumed dead. During this period of residence in [District B] the applicant was detained and questioned by the Taliban on several occasions. He says they suspected him due to his Hazara ethnicity and would beat him. On one occasion he was imprisoned for several nights.
•Around 2000, the applicant and his family departed Afghanistan and moved to Peshawar in Pakistan. The lived in Peshawar for around six years. He worked in a rug shop.
•In 2006, the applicant and his family returned to in [Village A] village in [District A], Parwan Province in Afghanistan. After the family’s return, the applicant and his remaining brother (B3) bought two trucks and resumed their transportation business delivering goods between Kabul and Shaikh-Ali District, Bamyan and Yakowlang.
•Sometime in 2009, the Taliban established a military presence in the neighbouring [District C] District which was adjacent to [District A] District. Overtime, this Taliban outfit developed strong connections in the local area and local people informed on persons with money and wealth to the Taliban. The Taliban in the area started to harass local persons.
•In late 2010, the applicant received a phone call from a member of the Taliban. During the phone call, the man said that he knew the applicant, and was aware of his previous support for HeW. The man tried to extort 2 million Afghani as an ushr (religious donation) from the applicant. The applicant refused and reported the matter to the authorities who advised him it was probably a prank. 20 days later the applicant received similar call and again he refused to cooperate and reported the matter to the authorities. However, the authorities did not investigate the matter.
•Over the following 3-4 months, the applicant received several more calls from the man. One afternoon, the applicant received one of these calls and when he answered the phone, he was told he should ‘talk to his brother’, then he heard gunshots and the phone was hung up. The applicant attempted to call the number but the phone had been switched off. He reported the issue to the local authorities.
•The next day a truck delivered the body of B3 to the applicant’s home. He had been shot. The applicant was advised that his brother’s truck had been burnt and the load had been taken. Ten days later, the applicant received another telephone call from the man during which the man threatened to kill the applicant unless he paid the money. Two to three weeks later, the applicant and his remaining family (including his wife, children, mother, Sister-in-Law and niece) fled the village and travelled to Kabul.
•After a short period in Kabul during which the applicant settled his family there, the applicant departed Afghanistan and travelled to Australia.
•The applicant fears that if he is returned to Afghanistan the Taliban would continue to pursue him for the money they sought in 2010.
•He also believes the Taliban and Islamic State would target him due to his affiliation with HeW, his Hazara ethnicity and his Shia religion.
•He fears that his profile as his time in the West, attempt to claim asylum here and his perceived wealth would lead him to be targeted upon return.
•The applicant suffers from mental health issues. He fears that a return to Afghanistan would prolong and exacerbate these issues. Furthermore, that there is a societal stigma associated with mental health issues in Afghanistan and so in the circumstances the applicant could not return to his home country.”
It was asserted in the 6 February 2020 submission made by Fisher Dore Lawyers [2] on behalf of the applicant that the applicant’s diagnosed Post Traumatic Stress Disorder (PTSD) condition could cause some memory deficits, the clear implication from such submission being that such condition could account for some discrepancies in the dates of certain events as set out in the applicant’s SHEV application when compared with country information or other facts. That 2020 submission was accepted as new information by the Authority. [3] The submission, on the question of date discrepancies/inconsistencies, was relevantly as follows: [4]
“Recollection of Dates
6. [CAF17] instructs us that his family, comprised of his wife, elderly mother and four minor children, continue to reside in Kabul though they relocate to new residences within Kabul every three to four months to avoid discovery (and persecution) by the Taliban. They do not provide a familial structure on which the Applicant can rely to establish himself in Kabul. They are dependent on the financial support provided by [the applicant] and have no other source of income or assistance.
7. [CAF17] instructs that he cannot recollect with any certainty when particular events occurred, especially those before his relocation to Pakistan in 2000. However, he is adamant that he was not living in [Town A] at the time of the notorious massacre of Hazaras in August 1998 (as was assumed by the previous Authority). Rather, he was present and residing in that area at the time of an attack on and failed occupation of [Town A] by the Taliban around a year before the massacre. This is consistent with his statutory declaration dated 18 January 2016 in which he states at paragraph [10] – “After about 3 months the fighting broke out in [Town A] and the Taliban captured [Town A] for the first time” (emphasis added).
8. The previous Authority raised for the first time the issue of difficulties with the time line of [The applicant’s] claims. We submit that it would be unreasonable to expect him to accurately recall the dates of events that took place more than twenty years in the past, especially when he is dealing with a calendar with which he is unfamiliar and he is reliant on interpreters to convert these dates correctly. Moreover, it is not far-fetched to suggest that his mental health conditions, including his PTSD, may cause him memory deficits. In any case, he has been consistent with respect to the sequence of events and the length of his residence and/or employment in different areas of Afghanistan.
9. When the issues noted above are taken into account, it becomes clear that [the applicant’s] claims can be accommodated by the historical record and that they are both plausible and consistent with credible country information.”
(Footnotes omitted and anonymised)
[2] CB pp. 982 – 990 inclusive.
[3] [14] of Authority reasons.
[4] CB pp. 985 – 986.
Relevant to such submission was the footnoting of two review articles dealing with deficits arising out of PTSD which had been respectively published by the Journal of Traumatic Stress and by the Journal of Affective Disorders. [5] Further, as to such articles, findings were respectively made and published as follows:
[5] See footnote 2 at CB p. 986 and see articles at CB pp. 981 – 1009 inclusive.
(a)Journal of Traumatic Stress:
(i)“Verbal learning and memory deficits are frequently reported in post- traumatic stress disorder (PTSD)” [6]
(ii)“Discussion
Comorbid PTSD with MDD patients evidenced a statistically significant verbal learning and memory deficits compared to both healthy nonpatients and patients with a MDD diagnosis alone. [7]
(b)Journal of Affective Disorders:
(i)“1. Introduction
In post-traumatic stress disorder (PTSD) the memory of the traumatic event is thought to be fragmented, with storage in sensory fragments and retrieval occurring as sensory and emotional representations without the transcription into personal narratives (Van der Kolk and Fisler, 1995). The clinical picture of PTSD with recurrent re-experiences and the failure of integrating the traumatic memories, indicates that autobiographical memory may be affected (Brewin, 2007).” [8]
(ii)“In conclusion, across 18 studies, people with PTSD performed worse on executive functioning than people without PTSD. With the relatively high lifetime prevalence of PTSD around 7% (De Vries and Olff, 2009; Olff et al., 2007) and the great individual distress as well as societal burden associated with PTSD, our study adds important findings particularly because executive function is crucial for effective occupational functioning (Kalechstein et al., 2003). Differences were more profound between PTSD patients and exposed controls than between PTSD patients and non-exposed controls. Subgroup analyses revealed that older and male patients performed worse as well as people with PTSD following war. Also, significantly worse executive functioning was seen in groups with more severe comorbid depressed symptoms than in groups with less depressive symptoms. Although PTSD may influence executive functioning directly, we must not rule out the possibility of pre-trauma impairments in executive functioning. These impairments may contribute negatively to the ability to cope with traumatic stress (i.e., response inhibition and attention regulation) (Aupperle et al., 2011). As this meta-analysis illustrates impaired executive functioning in PTSD patients, it may be particularly relevant to find out whether impaired executive functioning has clinical implications. Executive functioning is crucial for processing complex information as for participating in interventions like cognitive behavioural therapy. It has already been shown that impaired verbal memory in PTSD patients (Wild and Gur, 2008; Nijdam et al., in prep) predicts treatment outcome. Also in depression, poor executive functioning has been found to be associated with treatment outcome and prognosis (Dunkin et al., 2000).” [9]
[6] CB p. 991.
[7] CB p. 995.
[8] CB p. 1000.
[9] CB p. 1007.
The Authority did not consider that the articles fell within the provisions of s. 473DD(a) of the Act, namely that there were no exceptional circumstances justifying consideration of such information. The Authority, at [11] of its reasons, said as follows:
“[11] The two PTSD articles provided are cited in the applicants 2020 Submission to the IAA, but no reasons are offered to consider them in the s.473DD Submission. They appear to have been offered merely because they relate to PTSD, a condition the applicant now claims and to show that his mental health concerns may cause him “memory deficits”. These articles are academic publications which were first published in 2012 and 2014, well before the applicant submitted his SHEV application. Both articles are written with an academic audience in mind and were published in academic journals. While these articles do relate to PTSD, they do not relate to the applicant, or his protection claims, or conditions in Afghanistan or any other factor which is under consideration by me. The authors of these reports have not examined the applicant nor do they appear to have had any interactions with him, nor are they medical practitioners familiar with his personal circumstances. The first article found that “a current diagnosis of PTSD makes a contribution to verbal learning deficits beyond the effect of depression alone” and the second article concluded that “PTSD patients were found to show impaired executive functioning”. No reasons have been offered as to why these articles are submitted or how they pertain to this applicant beyond general assertions about how PTSD has affected this applicant which appear to have been made by his legal representative. In the circumstances I am not satisfied that there are any exceptional circumstances to justify consideration of these articles; as s.473DD(a) is not met for them, I must not consider them.”
Submissions were made on behalf of the first respondent to the effect that the Authority was correct when it found that no reasons had been advanced as to why the two articles were submitted, or how they related to the applicant beyond general assertions concerning PTSD. The Court does not accept such submissions.
Though a request for the Authority to consider the contents of the two articles was not contained within the submissions entitled “SUBMISSIONS – Application of s. 473DD to New Information”, [10] the submission that the articles should be considered by the Authority as relevant material was clearly articulated in [6] – [9] inclusive of the submissions made by Fisher Dore under the heading “Recollection of Dates”. [11] The Authority had found that there were exceptional circumstances justifying its consideration of the contents of the report of Dr Oertel, and it had, based upon the contents of such report, accepted that the applicant suffered from PTSD. [12] In those circumstances, it ought to have been obvious to the Authority that the applicant was asserting that it was open for the Authority to find that any failure on the part of the applicant to accurately record historical dates was due to his major depressive disorder, or due to his PTSD, or due to a combination of both. It also ought to have been obvious to the Authority that the applicant was calling in aid the contents of the two journal articles to support that assertion. The contents of the two articles were intended to supplement and augment the findings made by Dr Oertel that the applicant had a major depressive disorder, and that he suffered from PTSD. By refusing to consider the contents of the two articles, the Authority denied itself the opportunity of having due regard to scientific literature touching on the very question which was before the Authority for its determination – namely, whether or not the discrepancies between the dates of events given by the applicant, when compared with reliable country information, or other facts, could reasonably be attributed to symptoms associated with the applicant’s late diagnosed PTSD and major depression. The Authority erred in not only failing to consider such articles, but also by failing to consider the clearly articulated argument that date discrepancies were, or could be, due to the applicant’s medical conditions.
[10] CB pp. 983 – 984.
[11] CB pp. 985 – 986.
[12] [32] of reasons of the Authority.
The Authority, at [42] – [61] inclusive of its reasons, set out why it found that the applicant’s claims were implausible. Such finding was substantially based on differences in the timing of events. Such conclusion is best illustrated by reference to [59] and [60] of the reasons of the Authority which were as follows:
“[59] As a final observation, I note that the claims outlined above constitute the applicant’s central claims about this life in Afghanistan. However, there are differences in the various accounts the applicant has put forward. Principally these differences relate to the timing of events. Throughout the period that this applicant’s case has been under assessment, significant problems with the sequencing the applicant’s various accounts were identified (by the delegate and the initial IAA reviewer). In his 2020 Submission to the IAA, it is argued that the passage of time (more than 20 years) since these events, and the applicant’s mental health issues had led to a deterioration of the applicant’s memory. These factors are said to account for the applicant’s differing testimony as regards to the dates of various events. I have some concerns about this explanation. I note that the applicant provided accounts of his claims in his January 2016 Statement of Claims, his August 2016 Protection Visa Interview, his October 2016 Submission to the IAA. In the various accounts he advanced before 2020, the applicant did not argue that his memory was faulty or that he could not remember dates. Rather at this time, he was quite adamant that events had occurred as he stated and he had clearly indicated that where the delegate findings contradicted his own, the delegate was mistaken. It was not until he provided his 2020 Submission to the IAA that the applicant’s faulty memory is cited as the explanation for the discrepancies in his accounts. I note again my concerns about this sequence of events; the applicant only cited his faulty memory as a factor, after the Federal Court had indicated his mental state was at issue, and after he had secured a diagnosis of PTSD. What troubles me mostly about this issue though is that it appears the applicant is trying to have it both ways. At times, he says his memory is faulty, while at other times, he says he remembers clearly.
[60] On the whole, I have not found this applicant’s account to be a convincing. While the delegate accepted the applicant’s account, this is a de novo decision in which I am required to look at the applicant’s claims afresh, and I am not bound by any earlier findings.”
(Underlining added)
The underlined portions of [59] of the Authority’s reasons, as set out above, were examples of how the Authority failed to even consider the contents of the two journal articles, and the submissions made as to the import of such articles, in the context of the applicant’s overall medical condition. The submission was substantial, clearly articulated, and consonant with the remarks of Justice Greenwood on appeal in CAF17 v Minister for Home Affairs. Even if the claim was considered to be un-articulated, it was nevertheless raised clearly and squarely on the material before the Authority and warranted the Authority’s consideration. [13] The Court respectfully adopts what was said by Collier, McKerracher and Banks-Smith JJ in AYY17 v Minister for Immigration & Anor (2018) 261 FCR 503 at [18]:
[13] Nabe v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at
[58] – [61] per Black CJ, French and Selway JJ.
“[18] It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act (as discussed, for example, in BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:
•The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 (Htun) per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.
•The Tribunal is only required to consider such claims where they are either:
(a) the subject of substantial clearly articulated argument, relying on established facts; or
(b) clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE) per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 (AWT15) per Barker J (at [67]).
•These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:
… A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).
(emphasis added)
•As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):
(a) such a finding is not to be made lightly (NABE at [68]);
(b) the fact that a claim might be said to arise from materials is not enough (NABE at [68]);
(c) to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 (SZUTM) per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:
37 While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.
38 Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.
(d) while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR77 per Flick J (at [21]); and
(e) understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.”
Applicant’s Grounds for Review
On 27 March 2020, the applicant filed an Originating Application for Review of the decision of the Authority. At the hearing before this Court on 21 January 2021, the applicant was granted leave, without objection, to file and rely upon a Further Amended Application for Review, the grounds of which were as follows:
“1. The IAA’s reasons (at Court Book 1-17 [11]) for finding that two academic articles concerning the effects of Post-Traumatic Stress Disorder (PTSD) submitted in conjunction with submissions lodged with the IAA on 6 February 2020 do not meet the requirements of s. 473DD of the Migration Act are legally unreasonable.
Particulars
(a) As the applicant had not expressly put to the delegate that his personal and/or traumatic experiences should be considered in the context of his proposed relocation to Kabul, he could not reasonably have been expected to have given these documents to the delegate.
(b) The applicant had been diagnosed with PTSD. The articles were clearly and obviously relevant to the effects of PTSD on memory and so clearly and obviously support submissions made on that issue.
(c) It was unreasonable to reject those articles on the basis that the authors had not examined the applicant, or because the articles themselves merely give general support to submissions in support of the applicant’s case.
2. The IAA acted in a manner that was legally unreasonable in failing to consider whether it should get “new information” through an interview with the applicant.
Particulars
(a) The delegate, and a psychologist had conducted interviews with the applicant and had found him to be credible.
(b) The psychologist had also conducted psychometric tests and found the applicant to satisfy the diagnostic criteria for being a “Victim of Terrorism or Torture”.
(c) Given the advantages of the delegate and the psychologist in assessing the reliability of the applicant’s claims, it was unreasonable for the IAA to reject his claims of being tortured and extorted, and of his last brother having been murdered by the Taliban, without at least considering whether to hold an interview with him pursuant to s. 473DC(3)(b) Migration Act.
3. The IAA erred in that it failed to find
consider whether forthe purposes of s. 36(2B)(a) of the Migration Act, that Kabul was a place of relocation for the Applicant.Particulars
(a) Kabul being a place of relocation for the applicant, the IAA was obligated, but failed, to consider and determine the reasonableness and practicability of the Applicant residing in Kabul in terms of his personal circumstances, including whether return to Kabul would expose him to constant stimuli which would exacerbate his psychological symptoms and so render it unreasonable, as opposed to unsafe, for him to live in Kabul.
4. The IAA erred in failing to consider an articulated, substantial claim that Kabul could not be construed as a place of return in the Applicant’s circumstances, and was, in those circumstances a place of relocation.”
As to Ground 1 of the Further Amended Application for Review, it was asserted that the Authority’s reasons for finding that the two academic articles concerning the effects of PTSD relevant to memory deficits not meeting the requirements of s. 473DD of the Act was legally unreasonable. The Court has had regard to the submissions made on behalf of the first respondent that it is a high bar which must be hurdled for there to be a finding that the reasons of an administrative body were legally unreasonable. The Court has further had regard to the submissions made on behalf of the first respondent to the effect that the Authority based its decision to refuse to grant the visa on a number of grounds, not merely on date sequencing discrepancies. [14] However, although [44], [47], [55], [58] and [59] of the reasons had been relied upon by Counsel for the first respondent as examples of the different bases on which the Authority had made adverse findings against the applicant, those paragraphs were examples of where the Authority pointed to date discrepancies in the applicant’s claims as constituting a basis for non-acceptance of such claims. The Court finds that the Authority unreasonably failed to consider the contents of the two journal articles for the reasons already given, and referred to above. The fact that the articles pre-dated the decision of the delegate was irrelevant because of the recent diagnosis of the applicant’s major depressive disorder and PTSD by Dr Oertel in January 2020. The Authority largely relied upon time and date discrepancies when finding that it did not accept the applicant’s claims, but it did so un-illuminated by a consideration of scientific research which could realistically have resulted in the Authority arriving at a different decision. The error on the part of the Authority was material.
[14] See [44], [47], [55] – [59] inclusive of reasons of the Authority.
In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, Bell Gageler and Keane JJ at [45] and [46] said as follows:
“[45] Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
[46] Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.”
In DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at [30], Kenny, Kerr and Perry JJ summarised the principles relating to legal unreasonableness as follows:
“[30] The relevant principles can be summarised as follows.
(1) While findings as to credit are generally matters for the administrative decision-maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).
(2) Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS) that:
135. … A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
(Emphasis added)
(3) By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 676 at [54].” Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113 at [37].
(4) Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 (in a passage approved in CQG15 at [60]) that:
56 An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny …
(Citations omitted)
(5) A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].”
Further, the Court finds that the failure of the Authority to consider the two journal articles was legally unreasonable, and a failure which lacked an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The Court accepts the applicant’s submissions as to Ground 1 of the Further Amended Application for Review and finds that the Authority fell into jurisdictional error by failing to consider the two journal articles.
As to Ground 2 of the Further Amended Application for Review, it was asserted on behalf of the applicant that it was legally unreasonable for the Authority not to have sought to interview the applicant pursuant to the provisions of s. 473DC of the Act. Such provision provided as follows:
“473DC Getting New Information
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.”
It was submitted that the Authority had erred by failing to accept the applicant’s claims of torture, extortion and murder without conducting an interview with the applicant in circumstances where the delegate and the qualified psychologist had each found that the applicant’s claims were truthful. The Court accepts such submissions.
First, the Authority undertook its own independent assessment of the applicant’s credibility and plausibility, finding against the applicant contrary to each of the findings of the delegate and Dr Oertel. It did so without seeking to interview either the applicant or Dr Oertel. Had the Authority conducted an interview with the applicant, it could have formed a favourable impression of the applicant, and of the applicant’s credibility, sufficient to cause it to change its impression as to the credibility or plausibility of the applicant’s claims.
The delegate was assisted in assessing the credibility of the applicant at the time of interview by observing the applicant’s demeanour. Admittedly, there are limitations inherent in any administrative body seeking to assess an applicant’s credibility in circumstances where an interpreter is involved in the translation of questions and answers, but such limitations are not insurmountable. Much will depend upon how any such process transpires. Some interviews may be of no or little assistance, whereas others might be of substantial assistance when assessing not only an applicant’s demeanour, but also the manner in which answers to questions are given. [15] There was no suggestion that the delegate’s assessment of the applicant’s demeanour was arrived at in unorthodox circumstances, or was ‘glaringly improbable, contrary to compelling inferences or otherwise shown to be infected by error’. [16]
[15] ABT17 at [14]; Tonari v R [2013] NSWCCA 232 at [194]; Kathiresen v Minister for Immigration and
Multicultural Affairs [1998] FCA 159 at [159]; Minister for Immigration and Border Protection v
WZARH (2015) 256 CLR 326 at [40] – [41]; CPR17 v Minister for Immigration, Citizenship, Migrant
Services and Multicultural Affairs [2020] FCA 1212 at [97].
[16] ABT17 at [62].
The Authority did not have a good reason for not considering whether it should, or should not, interview the applicant. As was said in ABT17 v Minister for Immigration & Border Protection [2020] HCA 34 at [24] – [25] per Kiefel CJ, Bell, Gageler and Keane JJ:
“[24] The Minister is therefore correct to say that the Authority is not required to interview a referred applicant merely because credibility is in issue or merely because the Authority comes to a different view as to credibility than did the delegate.
[25] However, the Authority will act unreasonably if, without good reason, it does not invite a referred applicant to an interview in order to gauge his or her demeanour for itself before it decides to reject an account given by the referred applicant in an audio recorded interview which the delegate accepted in making the referred decision wholly or substantially on the basis of its own assessment of the manner in which that account was given. That is what happened in this case.” (footnotes omitted)
The Court finds that the Authority erred in failing to conduct an in-person interview with the applicant with a view to clarifying issues of credibility.
Second, though the Authority found that there were exceptional circumstances justifying it considering the contents of Dr Oertel’s report, the Authority, apparently unsatisfied that Dr Oertel might have been sufficiently objective or professional when arriving at her conclusions, cavilled with the contents of such report, stating ‘… there is no evidence before me to indicate that the psychologist tested any of the applicant’s claims and so I am not satisfied that the applicant’s explanation to the psychologist can be accepted uncritically. To my mind, to do so would undermine the purpose of this decision, which is to assess the applicant’s claims for protection.’ [17]
(underlining added)
[17] [33] of reasons of Authority.
The Authority’s somewhat pithy response to its receipt of such report as “new information” was set out in [27] – [33] inclusive of its reasons as follows:
“[27] As noted above, this applicant’s case was remitted back to the IAA after the Federal Court of Australia quashed an earlier IAA decision. According to the Courts reasons, the earlier decision was quashed largely due to claims advanced by the applicant about his ‘mental state’, and whether, considering his ‘mental state’ it was reasonable for him to relocate to Kabul given his many difficult experiences in Afghanistan. The Federal court found that as the IAA had not considered whether it was reasonable for the applicant to relocate to Kabul in light of his past experiences and mental state, the IAA had not fulfilled its task and had fallen into jurisdictional error.
[28] Of particular note in respect of these issues, is that the applicant had not made any mental health claims before the Department in 2016 (or during the original IAA review of his case in 2017). In fact, during the applicant’s August 2016 Protection Visa interview the applicant had expressly denied that he had any mental health issues, or that he was raising any mental health claims. Nevertheless, the Federal Court found that the question of the applicant’s mental state was alive based on the materials before the IAA, and in light of the IAA’s findings. The point I am making here is that this applicant did not have any mental health claims at the time he submitted his SHEV application (February 2016), during his Protection Visa Interview (August 2016), at the delegate’s decision (September 2016) or of the IAA’s original decision (April 2017). Nevertheless, before the Courts the applicant had argued that it was unreasonable not to consider the applicant’s mental state as a factor affecting his capacity to relocate to Kabul, if he was returned to Afghanistan. Ultimately, this argument persuaded the Federal Court and the IAA decision was quashed.
[29] The Federal Court of Australia’s decision was handed down on 24 December 2019. Above I have accepted for consideration a Psychologists Report dated 29 January 2020. This report indicates that the applicant had been assessed by the author (a Psychologist) during a single session held on 23 January 2020. Following that assessment, the applicant was diagnosed as suffering from PTSD and Major Depressive Disorder (Moderate). He was also said to present with symptoms associated with Victim of Terrorism or Torture and Exposure to Disaster, War or Other Hostilities.
[30] I do not wish to belabour the point, but reiterate that until the Court quashed the IAA decision in December 2019, based primarily on a finding about the applicant’s ‘mental state’, this applicant had not made any claims about his mental health and had, in fact, expressly denied that he had such claims. However, in the short period of time since the Court quashed the IAA decision in December 2019, the applicant has sought medical advice and been diagnosed with mental health problems and now, these factors are said central to why he cannot be returned to Afghanistan. Furthermore, memory problems arising from his mental health issues are said to explain, retroactively, many problems associated with the applicant’s earlier evidence about his claims which had been identified by the delegate and the original IAA reviewer. While I do not have any medical qualifications. This sequence of events concerns me. It would appear that the applicant only sought to obtain a mental health assessment after he was prompted to do so by the December 2019 findings of the Federal Court concerning his ‘mental state’ and had not considered such a course of action during the many years he had previously resided in Australia. Moreover, his recent diagnosis is said to explain problems with evidence he adduced as far back as 2016.
[31] I note that according to his 2020 Submission to the IAA the psychologist found that the applicant was a reliable narrator; that he displays trauma symptoms and he is recommended to engage in therapy. Citing the Psychologists Report, the Submission argued that if the applicant returned to Afghanistan the many stimuli and cues arising from the local conditions in that country would prolong his psychological symptoms and cause distress and impermanent and that these factors could interfere with occupational functioning including obtaining and retaining employment and thus, his capacity to subsist in Afghanistan. It is further argued that the availability of mental health care in Afghanistan is poor.
[32] As I have already indicated, I am not a medical practitioner, nor do I have medical qualifications. Notwithstanding my many concerns about the applicants shifting mental health claims, I accept that a relevantly qualified practitioner has made a medical assessment of the applicant, and that he does suffer from PTSD and Major Depressive Disorder as he has been diagnosed. However, I do note that none of the material before me, including the Psychologists Report and the February 2020 Submissions, indicate that this applicant is actually undergoing any of the treatments proposed for his condition in the January 2020 Psychologists Report. Rather, the materials merely indicate that there are a variety of treatment options the applicant could consider, if he chose too.
[33] As a final observation, I note that he Psychologists Report contains a section titled ‘Relevant Background’ which recounts the applicant’s explanation to the psychologist about his life in Afghanistan. This version of the applicant’s life is similar to that he has claimed before the Department. In the Psychologists Report the applicant’s claim about his life in Afghanistan are accepted by the psychologist. However, there is no evidence before me to indicate that the psychologist tested any of the applicant’s claims and so I am not satisfied that the applicant’s explanation to the psychologist can be accepted uncritically. To my mind, to do so would undermine the purpose of this decision, which is to assess the applicant’s claims for protection.”
On the question of Dr Oertel’s qualifications and professional competence, there was nothing before the Authority to suggest that the applicant’s claims had not been appropriately “tested”. There was no intelligible justification for the Authority so finding. The uncontested evidence before the Authority as to the qualifications of Dr Oertel, a reading of which ought to have given rise to the drawing of an inference that she was professionally competent, as set out in Dr Oertel’s report, was as follows:
“QUALIFICATIONS AND EXPERTISE
3. I am a fully registered clinical psychologist with the Psychology Board of Australia (PBA) and a member of the Australian Psychological Society (APS). I have a Doctorate in Clinical Psychology and a Masters in Forensic Mental Health. I am a Fellow of the APS College of Clinical Psychologists and an Affiliate Member of the APS College of Forensic Psychologists. I am also a member of the Australian and New Zealand Association of Psychiatry, Psychology and Law (ANZAPPL) and the International Association for the Treatment of Sexual Offenders (IATSO). I have professional experience working as a clinical psychologist providing extended assessment and treatment to adolescent and adult forensic clients who present with a range of emotional, behavioural and psychiatric disorders as well as intellectual disability. Additionally, I have professional experience conducting independent medico-legal examinations pertaining to psychological injuries or conditions endured by individuals across the lifespan.”
Notwithstanding that such findings of the Authority failed to have regard to the unchallenged qualifications and experience of Dr Oertel, they do give rise to the asking of the obvious question as to why the Authority would not have therefore sought to interview Dr Oertel to clarify for itself not only the question of the testing of the applicant’s claims, but also the very issues raised by Justice Greenwood which had been addressed by Dr Oertel in her report. The Authority was content to denigrate the opinions of Dr Oertel, yet was unprepared to carry out the forensic exercise which would have likely resolved the Authority’s concerns.
Dr Oertel’s findings were that the applicant experienced a diminished ability to think or concentrate. Dr Oertel’s concluded opinion was as follows:
“OPINION
Whether [the applicant] currently experiences, or has ever experienced, any psychological symptoms as a result of the experiences and if so, what those symptoms have been and how they have varied, if at all over the years
32. As highlighted in Paragraphs 23 to 25, [the applicant] reported a number of diagnostic features and associated features of Posttraumatic Stress Disorder and Major Depressive Disorder in relation to his personal experiences in Afghanistan. [The applicant] indicated that the onset of his psychological symptoms (i.e. intrusion symptoms, arousal and reactive symptoms, dysphoric mood states and cognitions) occurred when he resided in [District A] in or around the Afghan calendar year 1375 (Christian Calendar 1997).
33. It is notable that [the applicant] has been exposed to multiple traumatic events while living in Afghanistan including armed conflict, social violence, life-threatening situations, imprisonment, torture, persecution, displacement, the loss of his father and the deaths of his three siblings. He also encountered a perilous journey from Afghanistan to Australia. While living in Australia, [the applicant] has experienced additional stressors including living in a detention centre, restrictions to economic opportunities, insecure residency status and separation from his family. It is likely that [the applicant’s] exposure to multiple traumatic events while living in Afghanistan has had a cumulative effect in the severity of his Posttraumatic Stress Disorder and Major Depressive Disorder. It is also conceivable that his flight from Afghanistan and exposure to additional stressors since coming to Australia have compounded the effects of his personal experiences in Afghanistan.
Whether [the applicant] currently suffers from, or has ever suffered from, a recognised psychological condition
34. It is apparent that [the applicant] currently meets the DSM-V criteria for 309.81 Posttraumatic Stress Disorder and 296.22 Major Depressive Disorder: Moderate. He also presents with the conditions V62.89 Victim of Terrorism or Torture and V62.22 Exposure to Disaste1: War or Other Hostilities which affect the diagnosis, course, prognosis and treatment of his mental disorders.
What impact, if any, the experiences and/or subsequent psychological symptoms [the applicant] has experienced, and/or his psychological condition, would have on [the applicant] if he were to return to Afghanistan
35. [The applicant] has a well-founded fear of being persecuted if he were to return Afghanistan. The Department of Foreign Affairs and Trade (DFAT Country Information Report dated 27 June 2019) acknowledges that the security situation in Afghanistan is dangerous, complex and high fluid. Corruption also remains an endemic problem in Afghanistan. It is recognised that the high levels of corruption, poor institutional capacity and the continuing security situations reduces the government's effectiveness in implementing policies and decisions. The DFAT assessed that Hazara residing in Kabul have a higher risk of experiencing conflict-related violence than those residing in other parts of the country such as the Bamiyan province. The DFAT also assessed that Shi'a face a high risk of being targeted by the Islamic State-Khorasan Province (ISKP) and other militant groups for attack based on their religious affiliation. This risk increases for those living in Shi'a majority or ethnic Hazara neighbourhoods in major cities such as Kabul.
36. If [the applicant] were to return to Afghanistan, this would provide him constant stimuli or cues that symbolise and resemble his past traumatic experiences and consequently prolong and exacerbate his psychological symptoms. It is also likely that if he were to return to Afghanistan that he will be exposed to further social violence and war-related events which will compound his existing psychological symptoms and thus exacerbating his features and associated features of Posttraumatic Stress Disorder and Major Depressive Disorder. As symptoms of Posttraumatic Stress Disorder and Major Depressive Disorder cause considerable distress and impairment, this could significantly interfere with [the applicant’s] occupational functioning when living in Afghanistan including obtaining, undertaking and retaining employment. It is not uncommon for individuals suffering from trauma and depression to exhibited problems with employment due to their fear-based reexperiencing, emotional and behavioural symptoms, dysphoric mood states, arousal and reactive symptoms, and negative cognitions. These symptoms can reduce the efficiency with which tasks are accomplished. They can cause individuals to become easily distracted, experience memory difficulties and struggle with making minor decisions. Their ability to engage in cognitively demanding pursuits can also reduced. If [the applicant] were to experience significant disability or impairment in occupational functioning, this will subsequently have long-term impacts on his economic achievement and productivity.”
The Court finds that the Authority failed to consider a clearly articulated argument of a substantial nature, namely that due to the applicant’s past traumatic experiences as found by Dr Oertel, the applicant would have his PTSD symptoms exacerbated should he return to Afghanistan. By failing to consider such clearly articulated argument, the Authority fell into jurisdictional error.
Further, for the same reasons as found in respect of the failure of the Authority to interview the applicant, the Court finds that the Authority erred in failing to conduct an interview with Dr Oertel. She was a “person” under s. 473DC(3) of the Act whom the Authority could have invited to give new information on issues of concern to the Authority which it believed had not been canvassed in her report. The failure of the Authority to do so, in that regard, lacked an evident and intelligible justification. [18] The error on the part of the Authority was material and jurisdictional in nature.
[18] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76].
On the question as to whether a breach of procedural fairness is material, in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 Bell, Gageler and Keane JJ at [45] and [46] said as follows:
“[45] Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
[46] Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.”
The Court finds that the Authority’s failures as claimed in Grounds 1 and 2 of the Further Amended Application for Review were material.
In the light of the Court’s findings as to Grounds 1 and 2 of the Further Amended Application for Review, it is unnecessary to consider Grounds 3 and 4 thereof.
The Applicant has established jurisdictional error on the part of the Authority.
The Court grants the relief sought in the Further Amended Application for Review based upon its acceptance of Grounds 1 and 2 thereof.
The Court will hear the parties as to costs.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 27 January 2021
1
25
1