CAK19 v Minister for Home Affairs
[2020] FCCA 1251
•21 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CAK19 v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 1251 |
| Catchwords: MIGRATION – Application for judicial review – protection visa – long litigation history – three decisions by Immigration Assessment Authority – request for delay – mental health assessment – request for delay denied by IAA – legally unreasonable – new information – sexual abuse – fear of harm – disclosure –solicitor correspondence – application allowed. |
| Legislation: Migration Act 1958 (Cth), ss.5J, 36(2)(aa), 46A, 473CA, 473DC, 473DD. |
| Cases cited: CRY16 v Minister for Immigration & Anor [2017] FCCA 1549 Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 Minister for Immigration and Border Protection v CRY16 & Anor [2018] HCASL 102 Other: Smyth, Mark "Inquisitorial Adjudication: The Duty to Inquire in Merits Review Tribunals" [2010] MelbULawRw 7; (2010) 34(1) Melbourne University Law Review 230 |
| Applicant: | CAK19 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 1554 of 2019 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 18 & 19 December 2019 |
| Date of Last Submission: | 19 December 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 21 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Symons |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr Hosking |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 23 April 2019.
A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine the application for review according to law.
The First Respondent pay the Applicant’s costs fixed in the sum of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1554 of 2019
| CAK19 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Immigration Assessment Authority (‘the IAA’) made on 23 April 2019, affirming a decision to refuse the applicant’s application for a protection visa.
The applicant’s application for a protection visa has had a long history. The applicant arrived in Australia in April 2013 from Lebanon, as an unauthorised maritime arrival. It was not until 19 January 2016 that the Minister exercised his power under s.46A of the Migration Act 1958 (Cth) (‘the Act’) to allow the applicant to make application for a visa. On 11 July 2016 a delegate of the Minister refused the applicant’s application, a decision that was affirmed by the IAA on 16 August 2016.
The applicant sought judicial review in this court and obtained orders quashing the IAA’s decision on 6 July 2017: see CRY16 v Minister for Immigration & Anor [2017] FCCA 1549. The Minister’s appeal to the Federal Court of Australia was dismissed on 14 December 2017: see Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210. The Minister then sought special leave to appeal to the High Court of Australia, which was refused on 19 April 2018: see Minister for Immigration and Border Protection v CRY16 & Anor [2018] HCASL 102.
Following remittal of the matter to the IAA, the applicant’s application was again refused, on 4 July 2018. This second decision of the IAA was quashed by consent orders made in this court on 1 March 2019.
The third decision by the IAA (the one the subject of this application) was made on 23 April 2019.
Ground 1
Ground 1 was framed as:
1. The IAA’s failure to refrain from making its decision until the applicant had provided a mental health report was legally unreasonable.
Particulars
a. In submissions dated 31 March 2019, the applicant’s representative informed the IAA they had arranged for psychiatrist Dr Tram Nguyen to conduct a mental health assessment of the applicant on 27 April 2019 for the provision of a report to the IAA by 3 May 2019
b. The applicant’s representative requested the IAA refrain from making its decision pending the provision of Dr Nguyen’s report about the applicant’s mental health
c. Despite having advance notice of Dr Nguyen’s report the IAA proceeded to make its decision on 23 April 2019. The IAA recorded findings including that it was “not evident from the information before me how the applicant will be identified as mentally ill” (CB348 [106])
d. The question of how the applicant could be identified as mentally ill was clearly an issue that is relevant to the IAA’s decision, and capable of being informed by Dr Nguyen’s report
e. In the particular circumstances of this case the IAA’s decision not to refrain from making a decision until the provision of the report was legally unreasonable
Given the long history of the application it is not surprising that there have been a number of submissions made on behalf of the applicant at different times. The IAA considered submissions made by the applicant on 7 and 15 June 2018, 20 March and 1 April 2019.
The IAA considered ‘new information’ from the applicant about changes in the political situation in Lebanon since he left in 2013 (at paragraph [9] of the Decision), but declined to consider the other new information about events that happened before his claims, relying upon s.473DD: see paragraphs [10] to [17] of the Decision. The IAA had regard to new country information: see paragraphs [18] to [20], and [37] to [38] of the Decision. The IAA also had regard to new claims of a religious conversion, his public support of Israel on Facebook, and claims to be a victim of sexual abuse: see paragraphs [21]-[36] of the Decision.
On 15 June 2018, the applicant’s representative made submissions to the IAA (at CB p.191) relying upon a mental health report prepared by Professor Suresh Sundram, a Consultant Psychiatrist. In the report (at CB p.197) the Professor noted that:
As the interview was about to be terminated I enquired if there was anything else [the Applicant] would like to add to which he responded affirmatively. He then stated that he was to disclose an episode that he had never previously disclosed to anyone. [The Applicant] stated that when he was 16 years old a Syrian intelligence officer who was known in the neighbourhood approached him to do odd jobs in his house. [The Applicant] knew there was no option of refusal and complied. However, as he was about to leave the officer overpowered and raped him. He threatened if [the Applicant] told anyone about the incident that [the Applicant]'s family would suffer. [The Applicant] then stated that the rapes continued intermittently for about a further four years until he was 20 and only ceased when the officer left Tripoli. [The Applicant] stated each rape followed a similar pattern where he was accosted on the street or near his house and was forced to return to the officer's house where he would be raped. [The Applicant] was adamant that if he told anyone he and his family or at least his father would be imprisoned or killed. Moreover, he is intensely ashamed and has been unable previously to tell anyone.
[The Applicant] stated that since the rapes he has not had any relationship, feels entirely unable to marry and instead now experiences confused homosexual feelings when affected by alcohol. He believes these feelings are dissonant but is unable to control them resulting in feelings of self-disgust and loathing.
The limitation of the interview time prevented a full exploration of the account, the impacts upon his mental health or his psychosexual development.
After the remittal of the second decision of the IAA, the applicant’s representative (the Refugee & Immigration Legal Centre) wrote to the IAA seeking to provide new information to the IAA, saying (at CB p.244), inter alia:
Given the nature of [the Applicant]’s claims and current situation, we believe that the IAA will be assisted by expert opinion and detailed submissions in relation to this matter. Including without limitation, we believe the following issues would be determinative in this review:
· [the Applicant]’s current mental health situation; and
· the nature and seriousness of his disclosures to the most recent IAA; and
· His online activity in recent times;
We intend to provide detailed submissions, including specialist psychiatrist report and other expert evidence on or before 11.59pm 3 April 2019. Noting that the six week time period [for completion of the review] referred to in your letter ends on 12 April 2019, we request that the Authority exercise its discretion not to make decision until it has considered our submissions and evidence we intend to provide by 3 April 2019. Given the passage of time since the delegate’s decision, the previous IAAs decisions being affected by jurisdictional error ( including with error leading to the Minister remitting by consent in the most recent case), the extremely sensitive nature of the applicant’s personal circumstance, and the applicant being detained at an immigration detention facility with limited access to his representatives, we stress the importance of updated information, expert reports and submissions we intend to provide to the Tribunal within what we consider is a reasonable time of 22 days from today.
I would be grateful for a response confirming that the IAA is minded to accommodate this request.
The IAA refused this request (at CB p.246), saying:
We have taken into account that the applicant’s case was referred to the IAA on 12 July 2016. Under the Practice Direction for Applicants, Representatives and Authorised Recipients any new information must be given to the IAA within 21 days of the date on which the case was referred to us by the Department. The Direction also states that any submission on why the delegate’s decision may be wrong should be given within that period. The 21 day period ended on 2 August 2016. We also note that the applicant previously provided a submission and new information on 15 June 2018 that is before the IAA. Please note that a decision may be made at any time.
Correspondence continued between the representative and the IAA, each time the representative making polite requests supported by cogent arguments (for example, that 962 days had passed since the delegate’s decision), and each time the IAA refusing to extend the time reiterating that the Practice Direction required that any new information be provided within 21 days of the referral of the case from the delegate to the IAA, which in this case was 2 August 2016. On 31 March 2019 the representative wrote saying (at CB p.302), inter alia:
Further medical report from Dr Nguyen
We have requested consultant psychiatrist Dr Tram Nguyen attend MITA in order to conduct a mental health assessment of [the applicant] on 27 April 2019, for the provision of a further report to the IAA by 3 May 2019. We are concerned that [the applicant’s] mental health situation has deteriorated since the time of last assessment by Professor Sundram. 3 May 2019 is the earliest date on which an appropriately qualified medical professional is available to provide a pro bono report. We act on a pro bono basis and given his impecunity the applicant is unable to obtain a psychiatrist report prior to that date. We request you refrain from making a decision adverse to our client pending the provision of Dr Nguyen’s report.
The representative then followed up with an email on 17 April 2019 (at CB p.317) advising:
Dr Tram Nguyen’s detention visit has now been confirmed. Dr Nguyen is scheduled to attend the detention centre on Saturday 27 April at 2pm to assess [the applicant] for the purposes of providing a report a (sic) to the IAA by 3 May 2019.
We reiterate our request for the Authority to refrain from making a decision adverse [the applicant] pending the provision of Dr Nguyen’s report.
The IAA nonetheless proceeded to make a decision on 23 April 2019 (rather than waiting 11 days for Dr Nguyen’s report), explaining (at paragraph [43] of the decision):
4. On 1 April 2019 the IAA received a request from the applicant’s representative that the IAA refrain from making a decision in this matter until 3 May 2019 as the applicant’s representative has requested that a psychiatrist by the name of Dr Tram Nguyen attend the Melbourne Immigration Transit Accommodation detention centre to conduct a mental health assessment of the applicant on 27 April 2019. The applicant’s representative has indicated that they are concerned the applicant’s mental health situation has deteriorated since the time of the last assessment done by Professor Sundram (in June 2018) and the 3 May 2019 is the earliest date on which a qualified medical professional is available to provide a pro bono report. Although the applicant’s representative indicates that “they” are concerned the applicant’s mental health has deteriorated since then, it is not clear who exactly is concerned about the applicant’s health or why or how “they” came to that opinion and what impact that may have on this assessment. In the circumstances I have decided not to refrain from making a decision in this matter until the provision of a new psychiatrist report.
The reasons of the IAA are curious in that it is a common turn of phrase for solicitors to use the word ‘we’ in correspondence, which clearly means the view of the solicitor as the relevant guiding mind of the law firm in the context of the particular case. The concern about lack of particulars is also unusual in the context. It would be rare that a solicitor would be challenged to give particulars of why they had formed a view that they are concerned about a client’s mental health (and had a professional report commissioned) for two reasons:
a)The solicitor is not an expert on mental health; and
b)The reasons may well lie in interactions that are subject to legal professional privilege.
Of course, if the delay in obtaining a report will be significant or likely affect another’s rights, a solicitor may be requested to provide particulars in order to balance the relevant considerations of delay and the importance of expert evidence. This is an important consideration in the context of Part 7AA of the Act, given the legislative imperative to complete the review process ‘as soon as reasonably practicable’: see s.473CA. However, the provision is not to be read as imposing an imperative without regard to the facts and circumstances of particular cases, as is apparent form the inclusion of the word ‘reasonably’.
Whilst s.473DA sets out that Part 7AA ‘is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted’ by the IAA, the Part makes no express provision for a mechanism or process whereby applicants may make submissions, nor a time frame for applicants who wish to provide further information. Obviously it would be legally unreasonable not to provide applicants some opportunity to attempt to persuade the IAA to receive new information. The various Practice Directions issued by the Presidents of the IAA provide a process to enable the operation of the provisions.
The Practice Direction in force at the time was the one issued on 17 December 2018 which relevantly provided:
20. Reviews are generally conducted on the papers provided by the Department and are expected to be completed within six weeks of referral.
…
23. For the purposes of the review, you may provide a written submission on the following:
why you disagree with the decision of the Department
any claim or matter that you presented to the Department that was overlooked.
24. Any submission must be concise. It should identify and address the issues you want us to consider in our review. Your submission should:
be no longer than 5 A4 size pages,
…
be provided to us within 21 days of your case being referred to us by the Department.
…
32. Any new information you give to us that we have not requested of you, must be given to us within 21 days of the date on which your case was referred to us by the Department. Any new information given to us by the Department that has not been requested, must also be given to us within 21 days of the referral.
33. At our discretion, we may decide not to accept new information that does not comply with these requirements.
The Practice Direction provides a time frame for submissions and new information of 21 days from the date of the referral of the delegate’s decision to the IAA. However, it does not provide that the IAA cannot receive material outside those time frames, nor proscribe the process with respect to cases that require more than 6 weeks for completion. Obviously the present case is not on the usual pathway within the IAA, as it has been running for nearly 4 years. Regardless of the time that had passed, it was still necessary for the IAA to act in a legally reasonable manner in conducting the review under Part 7AA. This included providing the applicant with a reasonable opportunity to make submissions and provide ‘new information’ for consideration by the IAA.
In this case, after a delay of over 960 days since the delegate’s decision (involving two judicial review applications, an appeal to the Full Court of the Federal Court and a Special Leave application to the High Court, where the applicant has succeeded in each judicial process) the Practice Direction time frames were of limited use, other than to reinforce that decisions should be made expeditiously. Given the time this matter has taken it is hardly surprising that there would be a desire to put further information before the IAA. In addition, the underlying nature of the issues has also changed considerably over the years such that mental health issues are now central to the claim.
Given the small delay in this case (and the notorious fact that it is difficult to obtain psychiatric reports in short time frames and pro bono), it was inappropriate to be critical of the solicitor’s letter, especially without asking for particulars from the solicitor.
The material was plainly likely to be relevant as the applicant’s mental health was a central issue in the decision of the IAA.
It is truly remarkable that a request of a further 11 days for a professional report being undertaken expeditiously and pro bono (the psychiatrist attending the detention centre on a Saturday) would be refused. Whether the report would ultimately have been received depended upon decisions that the IAA had to make under ss.473DC and 473DD of the Act.
The conduct of the IAA in this regard was legally unreasonable. It lacks any intelligible justification. No reasonable decision maker would deny a person a further 11 days, after delays of over 960 days, when they are seeking to provide an expert report which has already been arranged, addressing a central issue in the proceedings, even in the context of the strictures of ss.473DC and 473DD.
I find that this ground has been made out.
Ground 2
Ground 2 relies upon the same circumstances as ground one, but frames the error as a failure on the part of the IAA to seek out information in the nature of the report being obtained from Dr Nguyen.
In this case the power to obtain further information arises from s.473DC which provides:
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.
Whilst the cases deal with various provisions, the central feature of the provisions is the absence of a duty upon the decision maker to seek out new information.
The very limited obligation upon administrative decision makers to seek out information has been discussed in a number of cases. In Minister for Immigration & Citizenship v SZGUR [2011] HCA 1 it was pointed out that:
23. In Minister for Immigration & Citizenship v SZIAI [(2009) 83 ALJR 1123; 259 ALR 429; [2009] HCA 39] the Court considered the implications of its designation, in earlier decisions[SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at 164 [40]; Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489 at 499 [27] (fn 40); [2009] HCA 30], of Tribunal proceedings as "inquisitorial". As was pointed out in that case, the term "inquisitorial" has been applied to tribunal proceedings to distinguish them from adversarial proceedings and to characterise the Tribunal's statutory functions [Minister for Immigration and Multicultural Affairs v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at 1127 [18]; [2009] HCA 39; 259 ALR 429 at 434]. As the plurality judgment stated [Minister for Immigration and Multicultural Affairs v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at 1129 [25]; [2009] HCA 39; 259 ALR 429 at 436]:
“The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.” (footnote omitted)
More recently, in Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184; (2017) 256 FCR 235 (‘Kaur’), the Full Court (Dowsett, Pagone and Burley JJ) said (at paragraph [33]):
There is no general obligation to make inquiries, but as Kenny J noted in Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151 at [60], an obligation may arise in “rare or exceptional circumstances”. The mere fact that it may have been reasonable to make an inquiry does not mean the lack of such an inquiry amounts to a jurisdictional error; SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 at [30] (Bennett J); MZZGB v Minister for Immigration and Border Protection [2014] FCA 1052 at [63] (White J); Singh v Minister for Immigration and Border Protection [2017] FCA 1285 at [64] (Murphy J).
The Full Court decision in Kaur was cited with approval in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FOE17 [2020] FCAFC 73. Whilst there may be academic arguments as to the jurisprudential underpinnings of this principle, it is undoubtedly the law at present: see generally Smyth, Mark "Inquisitorial Adjudication: The Duty to Inquire in Merits Review Tribunals" [2010] MelbULawRw 7; (2010) 34(1) Melbourne University Law Review 230.
The Minister argued that as Dr Nguyen’s report had not yet been written it fell outside the ambit of s.473DC. However, the section speaks both of documents and information. A document would only be relevant for the information that it contained. Whether it is the report of this particular psychiatrist or another, the relevant claim was that new information about the applicant’s mental health should be provided to the IAA. The provision cannot properly be read so narrowly.
In this case, however, it is difficult to see how the failure of the IAA to seek the report of Dr Nguyen can be considered a jurisdictional error in the way that the IAA approached s.473DC of the Act. The enquiry that the applicant says that the IAA should have made was not ‘an obvious inquiry about a critical fact, the existence of which is easily ascertained’, but a step in evidence gathering that was unlikely to be determinative of a critical fact. In any event, as the applicant sought to provide the evidence, the remedy is more appropriately framed in Ground 1 than this ground.
I therefore find that the applicant has not made out this ground.
Ground 3
Ground three is framed as:
3. The IAA misapplied the test in s5J of the Migration Act 1958 (Cth).
Particulars
a. The applicant claimed that he would face persecution in Lebanon because he had been sexually abused and would be perceived as a homosexual.
b. The IAA accepted that the applicant had been sexually abused and acknowledged male survivors of sexual violence in Lebanon face additional shame and stigma, with homosexuality criminalised and survivors presumed to have consented due to unhelpful gender stereotyping and misconceptions around rape in general.
c. The IAA found that the applicant would not face harm in the future because he would never disclose his abuse and his abuse would not be known.
d. The IAA was required to, but did not, consider whether the fear of persecution caused the applicant to remain silent about his abuse.
This ground relies upon the principles set out in S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473, as applied by Rangiah J in the context of s.5J(1)(b) of the Act in ESD17 v Minister for Immigration and Border Protection [2018] FCA 1716 (‘S395/2002’). Rangiah J set out that:
34. In [ESD17’s] case, the Authority accepted that if the appellant’s sexual abuse as a child were exposed, he would be at risk of serious harm in Iraq. It found, however, that the appellant would remain silent about his sexual abuse and, in that way, avoid harm. The Authority made the error of failing to ask whether the appellant would remain silent in order to avoid the risk of persecution. If that question had been asked, and the answer was that he would remain silent because he feared that he would be harmed if he revealed the sexual abuse, s 5J(1)(b) may have been satisfied, depending upon the Authority’s findings concerning any “real chance” that the appellant would be “persecuted”.
35. If the Authority found that s 5J(1) of the Act was satisfied, the scope and application of s 5J(3) of the Act would then have arisen for consideration. It is sufficient, for present purposes, to say that if s 5J(3) had been considered by the Authority, further issues would have arisen, including whether the provision applies to behaviour that has already been modified, the reasonableness of taking steps to modify the appellant’s behaviour and whether any modification would conceal an immutable characteristic or conceal a psychological disability. It is far from certain that if s 5J(3) had been considered by the Authority, the delegate’s decision would have been affirmed. In these circumstances, the error made by the Authority was material and amounts to jurisdictional error.
In the present case the IAA found:
93. The applicant has claimed that if “something happens” in Lebanon, people will kill him. Yet, the applicant has not claimed to have been in a homosexual relationship nor that he identifies as homosexual and the medical evidence indicates that his feelings in relation to his homosexual feelings are “confused” and “dissonant” and he feels self-disgust and loathing in this regard. The evidence before me also indicates that his homosexual feelings are particularly apparent when he drinks alcohol and Professor Sundram’s report indicates that the applicant drinks a minimal amount of alcohol. On the evidence before me I am not satisfied the applicant considers himself to be homosexual or that there is a real chance he will identify as such if he returns to Lebanon. I am also not satisfied there is a real chance that the sexual abuse will become known to any group or person if he returns to Lebanon. He claims that he would never be able to talk about his homosexual feelings to anyone in Lebanon or get medical help and this is something he has had to live with for a very long time. Although the applicant claims that he did not tell anyone about this in Lebanon due to fear of harm and claimed he could not tell anyone in Australia for a number of reasons he outlined in his statutory declaration of 7 June 2018, he noted that “most importantly” the reason he could not tell anyone was because it was his biggest secret and it is something that is “very very very difficult to speak to anyone about”. Even after revealing this to Professor Sundram he initially asked him not to tell anyone, including his current lawyer. Having regard to his past behaviour where he did not disclose these things to any person in Lebanon for fourteen years and only recently revealed this to a psychiatrist in Australia in 2018, five years after he arrived in Australia, I am satisfied that he will not disclose his past sexual abuse to anyone in Lebanon primarily because it is a very difficult topic for him to talk about and he will not disclose his homosexual feelings because he does not consider himself to be homosexual and is averse to these feelings. On the evidence I am not satisfied there is a real chance applicant will discuss his previous history of sexual assault and his homosexual feelings to any person or group on return to Lebanon. I am not satisfied he has a genuine interest in disclosing these things to anyone in Lebanon, or desire to do so.
In this case the Minister argues that the applicant would not disclose his past abuse not only due to fear of harm, but because the impact that it had upon him meant that it was his ‘biggest secret’ and that he had a great deal of difficulty talking about it. This poses a difficult question as the path to improved mental health almost always involves talking about the issue with a skilled psychiatrist. On the evidence, the first time that steps had been achieved in this regard was with Dr Sundram in Australia. The IAA has not considered whether the applicant would otherwise continue to engage in therapy to work on this issue, but for the risk of harm in Lebanon. The classic example, which drives from the circumstances in S395/2002, relates to whether a person who is homosexual can live without hiding their sexuality. S395/2002 is based upon facts concerning the knowledge of the population more broadly. Whilst this case concerns disclosures to a much more limited group (treating mental health professionals), at least at this time, the principle appears to be the same. If there was a reasonable prospect that the applicant would continue to engage in psychotherapy concerning these issues, but for the risk of harm, then it appears to be a case where the applicant is being expected to ‘live discreetly’ (in the sense of hiding his issues form any therapist) to avoid harm. This case certainly presents difficulties with respect to the application of the relevant principles, calling for detailed fact finding concerning the applicant’s circumstances.
The minister relies upon three authorities: NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29 (‘NABD of 2002’); SZVZL v Minister for Immigration and Border Protection [2018] FCA 1299 (‘SZVZL ‘) and FTQ18 v Minister for Home Affairs [2019] FCA 2025.
In NABD of 2002 the Court considered a case concerning the persecution of Christians in Iran. On the facts as found by the Tribunal, there was notionally two categories of Christians from the perspective of Authorities in Iran: those actively proselyting and those quietly sharing their faith. The Tribunal had found that those in the second category were not at real risk of serious harm. The High Court dismissed the applicant’s appeal, as the Tribunal had considered the actual risks to the appellant on the basis of his likely behaviours.
In SZVZL the Tribunal found that an applicant supporting Kurdish organisations in Iran had come to ‘lack any real interest’ in the work of the groups. As a result the Tribunal found that he did not have political convictions that would give rise to a real risk of persecution in Iran. As with the reasoning in NABD of 2002, the finding was not premised upon the appellant changing his behaviours or acting ‘discreetly’ to avoid harm.
In FTQ18, Steward J considered another religion case concerning Iran, concluding:
26. …in my view the IAA did not ask the wrong question for the purposes of s 5J of the Act. It did not seek to impose on the appellant a requirement that he should behave discreetly to avoid the risk of harm. Nor did it make an assumption that he would behave in that way. Rather, the IAA judged the risk of harm based upon its finding that the appellant would continue to behave as he had. The principal reason why the appellant had behaved discreetly was his own belief that religion acts a “control over people” and that he did not consider himself to be “an advocate of any religion and specifically not Islam”. For him, God was “a source of internal energy” perceived “inside” a person as “interior conscience”. The appellant is a “secular humanist” who believes “in liberty of expression of faith” but who sees no reason to “propagate and promote” his views. These are the primary reasons for explaining the appellant’s discretion. They demonstrate that the appellant’s behaviour in Iran was not the product of fear, but of his personal values. It was voluntary in nature. In that respect, the evidence did not show that the mother’s advice had caused a modification of the appellant’s way of life in Iran. It did not silence him. Rather, it was just another reason for the appellant’s existing inconspicuous behaviour with respect to his agnosticism.
In the present case the applicant has not spoken of his sexual abuse nor homosexual feelings because of his deep embarrassment and because he is fearful of what would occur if people found out in Lebanon. Thus, there are two reasons the IAA relies upon to explain his lack of disclosure in the past 14 years. Notably, one reason is fear, which would potentially support his protection visa application and the other is his deep concerns about the issues which have led to him finding it difficult to discuss the issues. Clearly, the applicant has made some progress in Australia, as he has now discussed the matters with a psychiatrist. It seems axiomatic that continued psychotherapy would be beneficial for a person suffering the conditions of the applicant. Whilst his disclosures are never likely to be in a very public forum, the effect of the fears he holds does, on the IAA reasons, lead to him being unable to discuss these matters with anyone in Lebanon. Whilst superficially there are two reasons why the applicant would hide these characteristics from the world at large, there is now only one reason that causes him to hide the characteristics from a treating mental health professional. The consequence is that the operative reasons for him not pursuing treatment in Lebanon appears to be his fears of harm rather than embarrassment.
I am persuaded that the IAA’s reasons do not provide a clear answer to this claim, rather this claim calls for more detailed consideration of the facts and circumstances in order to properly consider the application of the principles in s.359 on the very unusual facts of this case. Ultimately I am persuaded that the applicant has made out this ground.
Ground 4
The fourth ground argues that he IAA failed to properly consider the applicant’s mental health claims under the complimentary protection provisions in s.36(2)(aa) of the Act. The ground is framed as:
4. The IAA failed to give proper, genuine and realistic consideration to the submissions, information and evidence before it relating to the applicant’s complementary protection claims based on his mental health and history of sexual abuse so that it constructively failed to perform its statutory task.
a. The applicant advanced substantial arguments that because of his mental illnesses and traumatic background, which included being a male rape victim, he was owed complementary protection.
b. The IAA failed to give active intellectual consideration to the supporting evidence and submissions provided by the applicant in its complementary protection assessment [121] (CB 352).
Paragraph 121 of the IAA’s decision addressed these issues:
121. Having considered the country information before me about the provision of mental health services I have accepted that the applicant will struggle to access mental health services due to a lack of personal funds and accessibility as the majority of mental health services in Lebanon are private and psychiatric care is not available in Tripoli. Nonetheless, I am not satisfied this amounts to significant harm as I am not satisfied it amounts to an arbitrary deprivation of the applicant’s life or that the death penalty will be carried out on him. Nor am I satisfied that it will involve the intentional infliction of torture, or cruel or inhuman or degrading treatment or punishment as defined in the Act as the lack of publicly available mental health services by the state in Lebanon is not an intentional act to cause harm to its citizens. The country information before me refers to social stigma against people with mental health issues in Lebanon but is relatively vague in this regard but does indicate there is discrimination in employment against people with a mental disability. Nonetheless Professor Sundram has indicated that the applicant currently is unable to work due to his mental health issues. It is also not evident from the information before me how the applicant will be identified as mentally ill so as to be refused employment or attract social stigma. I have also found the applicant would not be unable or denied access to appropriate medical treatment for his physical health issues. I accept that the applicant may struggle to find employment due to his mental health issues, and in possible combination with his physical health issues and having lived away from Lebanon for a number of years and not having worked as a result of being in immigration detention whilst in Australia. Nonetheless, I am not satisfied that there is a real risk his family will not support him if he returns to Lebanon for any reason. I am not satisfied the struggles the applicant may face in finding work or supporting himself in Lebanon due to these issues, individually or cumulatively, amount to significant harm as it will not result in the arbitrary deprivation of his life or the death penalty being carried out on him or will amount to torture or the intentional infliction of cruel or inhuman or degrading treatment or punishment.
The applicant argues that the finding of a lack of intention on the part of Lebanese authorities to cause harm to citizens with mental health issues was inadequately explained given the finding of significant social stigma with respect to mental health issues. That a State may not prioritise funding of particular services does not show that there is an intention to harm a particular group. On the material before the IAA this finding appeared open. The applicant also argued that his mental health issues result in two forms of difficulties: firstly, his ability to subsist; and secondly harsh social stigma and ostracism: see Applicants Outline of Submission at paragraph [42]. However, the IAA did deal with these issues, concluding that the applicant’s family would support him.
I am not persuaded that the applicant has shown such a failure to engage with the material as to lead to a conclusion that a judicially reviewable error has occurred.
Ground 5
Ground 5 is set out as follows:
5. The IAA failed to determine whether to consider new information contained in [18] – [20] of the applicant’s statutory declaration dated 20 March 2019 (CB 274 – 275) under section 473DD of the Act, which constituted a constructive failure to exercise jurisdiction.
a. The applicant provided new information to the IAA that was not before the delegate, including statutory declarations dated 7 June 2018 and 20 March 2019.
b. In his 2019 statutory declaration the applicant gave evidence addressing why he did not disclose his abuse in Lebanon and confirming he was not able to speak about what happened to him in Lebanon because “I would be too scared. It would be too dangerous”.
c. The IAA’s summary of the 2019 statutory declaration ([12] CB327) does not refer at all to the applicant’s evidence regarding the abuse he suffered and only considers other new claims ([14] – [15] CB 328), finding they do not satisfy the s473DD test and therefore won’t be considered.
d. Under the heading ‘new information regarding sexual abuse and mental health issues’, the IAA [30] – [31] (CB 331 – 332) refers to the applicant’s statutory declaration dated 7 June 2018 but not the statutory declaration of 20 March 2019, despite it clearly being relevant to this issue as signposted by the subheading in the statement ‘Abuse by Syrian officer and sexuality’.
e. There is no engagement with the applicant’s 2019 statutory declaration after the IAA’s anterior procedural assessment. It is not referred to in the substantive assessment of the applicant’s protection claims (which occurs from [44] CB 335 on of the IAA’s decision).
f. The relevant passage of the applicant’s 2019 statutory declaration was significant evidence that was capable of impacting on the IAA’s dispositive finding at [93] that the primary reason for applicant not disclosing his abuse was that it was a “a very difficult topic for him to talk about”.
The relevant paragraphs of the Statutory Declaration (dated 20 March 2019) set out evidence about this, saying:
18. Nobody knows about that. Nobody. It’s impossible to talk about it in Lebanon. In our society it's impossible for a man to be with a man, no way. Even your brother and mother won’t accept. That's the case with my family.
19. There is no way I could tell anyone about this. I spoke to the very good Doctor who came here, but there is no way I could tell a Lebanese doctor about this. The only reason I could speak about this in Australia is because I am far from Lebanon, and because professor Sundram was such a good Doctor. I have also explained in my previous statutory declaration why the conditions were right for me to be able to disclose this to Professor Sundram for the first time when he visited, and why there was never time before then I was able to speak about this freely.
20. If I am in the midst of that environment, in Lebanon, I could not speak about what happened to me, or the fact that now this has happened to me I have this feelings of sometimes wanting to do things with men. It would not be safe to talk about it to even with a doctor in Lebanon. I would be too scared. It would be too dangerous.
In paragraphs [12] to [17] of the IAA decision there is considerable analysis of the 2019 Statutory Declaration, with specific findings concerning different pieces of new information set out in the document, on each occasion rejecting the relevant part of the document. There is no discussion at that point of the reasons of the matters set out in paragraphs [18] to [20] of the Statutory Declaration. New information concerning mental health issues was dealt with separately by the IAA (at paragraphs [30] to [36] of the decision), however, there is no mention of this Statutory Declaration in that part of the decision. The applicant also points to paragraph [93] of the decision, which discusses the applicant’s reasons for not disclosing that he was the victim of sexual abuse. Whilst paragraphs [18] to [20] of the 2019 Statutory Declaration address how the applicant came to speak of his abuse in recent times, this is not mentioned in the IAA reasons (at paragraph [93]), only a Statutory Declaration that he made in 2018.
The Minister argues that an inference should be drawn that this part of the applicant’s 2019 Statutory Declaration has been considered. In circumstances where other specific parts of the statutory declaration were specifically considered and rejected under s.473DD(a), the absence of any other reference to the Statutory Declaration indicates that it has been overlooked by the IAA member.
The Minister also argues that it is not material (in the sense discussed in Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3), as it is largely the same information already before the IAA in paragraphs [41] to [58] of the Statutory Declaration made on 7 June 2018, where the applicant said:
41. I was sexually assaulted and abused by a Male Syrian military official from when I was 16 years old to about 21 years old. I do not want to go into detail about it in writing. I am happy to provide more information at an interview.
42. I have not disclosed this information to anyone in the past for a series of reasons.
43. I was not able to tell anyone in Lebanon, if anyone had found out or I had told them that this happen to me they would have hurt me for being homosexual or unnatural. This is not accepted in Lebanon.
44. I was unable to tell this to my previous lawyer because he was Lebanese and he knows Lebanese people outside. I could not trust that he would not tell people. That lawyer was introduced to me by a Lebanese person who lives in community. The lawyer was Muslim, and whenever I call him he always says that he is going to pray or something like that.
45. The interpreter at the entry interview was female I could not tell in front of her. She was a woman, I could see her with my eyes I cannot tell them. The interpreter was in front of me. I felt shame and scared.
46. I could not tell my lawyer from VLA she too was a female and there was always interpreters and other people around.
47. I was unable to tell my current lawyer right at the start as there was an interpreter there in the room, I did not trust the interpreter, I think he got upset when I was saying bad things about Hezbollah and good things about Israel.
48. But most importantly, the reason I could not tell anyone including the lawyers was this was my biggest secret, it is something that is very very very difficult to speak to anyone about. Only the horrible person and god knew about this.
49. I was finally able to tell the Doctor, he is a special doctor, he was male, he was the right person, I felt very comfortable with him. This was the best doctor I have seen, I knew he was the right person to treat me. The Doctor also did not have an interpreter in the room, the interpreter was by phone and could not see me.
50. At the start I told the Doctor not to tell anyone, when the doctor explained to me that he should tell my current lawyer and he won't tell anyone without asking me, I agreed for him to tell my current lawyer only.
51. The lawyer called me that day and I took the call in a private room at MIT A and I was able to talk to him about what happened and why this is going to cause me a lot of trouble if I go back.
52. The lawyer explained to me that if I don't put this forward to the IAA they cannot consider it, and also explained to me that the IAA would not reveal this information to anyone, especially to anyone in Lebanon or the Lebanese community in Australia. I realised the importance of providing this information to the IAA, I was also feeling better that I told the doctor.
53. This is another reason why I hate Hezbollah and the Syrian government who support them, it was one of the Syrian government who did this shit thing to me. The Syrian government supports Hezbollah, they did this dirty thing to me, I hate them for that reason also.
54. Since that prolonged assault and abuse I feel more homosexual than heterosexual.
55. Especially when I drink I feel that I am Homosexual. When I was in Lebanon the family pushed me to get married all the time, I cannot accept this, because I cannot stay with a woman all the time.
56. I cannot get married, woman does not accept me like this. If the community finds out they will hurt me. When you get married if the wife finds out about this they will tell my family and their family and these people will all harm me.
57. If I go back and have homosexual feelings and something happens, people in Lebanon will kill me. My father is crazy extreme about his religion, if he finds out about this he will find me and kill me.
58. I would never be able to talk about this to anyone in Lebanon and get help, medical and psychological help. This is something that I have had to live with for a very long time. I have finally told a doctor - I feel scared and a bit a better.
When comparing the two passages it is apparent that the earlier version provides far more detail than the latter version. There is nothing in the latter version that appears to add to the earlier version in a material way. In the circumstances, although I find that the IAA have overlooked considering the last few paragraphs of the 2019 Statutory Declaration, in the context of the case there was not a realistic possibility that the consideration of paragraphs [18] to [20] of the 2019 Statutory Declaration could have altered the outcome, when having regard to the fact that substantially the same information was set out in the 2018 Statutory Declaration, which was considered by the IAA.
Conclusions
As I have found that the applicant has made out grounds for judicial review I make orders accordingly.
At the end of the hearing the parties agreed that costs should follow the event in the sum of $7,467 (the scale amount), and I therefore order that the Minister pay the applicant’s costs in this sum.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 21 May 2020
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