CIB20 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 470
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CIB20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 470
File number(s): SYG 1316 of 2020 Judgment of: JUDGE LAING Date of judgment: 8 June 2023 Catchwords: MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority – whether the Authority erred by (1) failing to ask itself whether the applicant would remain silent regarding the abuse that he suffered as a child in order to avoid persecution or (2) implicitly, and unlawfully, asking whether the applicant could live in Pakistan in such a way as to avoid adverse consequences – whether the Authority failed to respond to the case put to it by the applicant – application dismissed Legislation: Migration Act 1958 (Cth) 5J, 46A, 91K, 473DD Cases cited: Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29; (2005) 216 ALR 1
AWT15 v Minister for Immigration and Border Protection [2017] FCA 512
AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503
ESD17 v Minister for Immigration [2018] FCA 1716
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421
MZXKX v Minister for Immigration [2008] FMCA 567
NABD/2002 v Minister for Immigration and Multicultural Affairs (2005) 215 ALR 1
NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263; (2004) 144 FCR 1
W352 v MIMA [2002] FCA 398
Division: Division 2 General Federal Law Number of paragraphs: 55 Date of hearing: 31 May 2023 Place: Sydney Counsel for the Applicant: Mr I Chatterjee Solicitor for the Applicant: Zarifi Lawyers Counsel for the Respondents: Mr G Johnson Solicitor for the Respondents: Minter Ellison ORDERS
SYG 1316 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CIB20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
8 June 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING:
Before the Court is an application for judicial review of a decision of the Immigration Assessment Authority (Authority). The Authority affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a protection visa.
BACKGROUND
The applicant is a citizen of Pakistan. He arrived in Australia a number of years ago as an unauthorised maritime arrival.
The applicant applied for a permanent protection visa. However, he was subsequently notified that this application was invalid by reason of ss 46A and 91K of the Migration Act 1958 (Cth) (Act).
The applicant subsequently applied for a Safe Haven Enterprise (Class XE) (Subclass 790) visa.
The Delegate refused the application on 4 March 2020. The matter was then referred to the Authority for review.
On 24 April 2020, the Authority affirmed the Delegate’s decision.
THE AUTHORITY’S DECISION
The Authority observed that it had received new information with a submission provided to it on 6 April 2020. The Authority found that the requirements of s 473DD of the Act were met regarding evidence of the applicant’s anti-depressant medication. However, it was not persuaded that they were met in relation to an invoice issued by NSW Ambulance or two photographs of the applicant’s father in hospital, which it considered were of limited probative value within the context of its review (at [2]-[7]).
The Authority accepted the basic biographical details that had been provided by the applicant. It accepted that the applicant was a young man who was the eldest son of his family, a Shia Muslim and a member of a particular tribe. The Authority accepted that these attributes may be readily identifiable to extremist militant groups and to the wider community. The Authority accepted that the applicant would likely be expected to work to contribute to his household’s income if he returned to his home area and that he would attend public areas and events frequented by Shias (at [9]-[13]).
The Authority’s reasoning regarding the applicant’s claims of abuse are central to these proceedings. For this reason, it is appropriate to set it out reasonably fulsomely. The Authority accepted that the applicant was a victim of child sexual abuse (at [14]-[16]). It then reasoned as follows at [17]-[20]:
17. He has indicated that the perpetrator is an older male member of his community whom he encountered by chance [redacted]. The perpetrator was a [redacted] who lived in a village nearby [redacted] and would travel into town to work. When asked by the delegate the applicant he stated that the perpetrator was not known to his family before the abuse, during the period in which he was abused, or afterwards.
18. The applicant has indicated that the perpetrator made videos of his attacks on the applicant and threatened to distribute these to his classmates if the applicant disclosed the abuse. There is no evidence suggesting that the perpetrator has published, distributed, or otherwise made known his acts of abuse against the applicant, either whilst the applicant was living in Pakistan, since his arrival in Australia, or as a result of the [redacted] community’s discovery of the perpetrator’s crimes against other children. The applicant’s evidence suggests that he has had no further contact with the perpetrator since he left [redacted].
19. From the evidence in the STARTTS report, the applicant is aware that the perpetrator has subsequently been discovered abusing other children in [redacted] and that, as a consequence, the perpetrator was subjected to a form of extrajudicial punishment... The applicant does not indicate when this occurred or how he became aware of this. His evidence does not suggest that, as a result of the perpetrator being discovered and punished, or for any other reason, the instances of abuse involving the applicant have become known by any other person in [his home area].
20.The applicant confirmed in the SHEV interview that he did not tell anyone in [his home area] about the abuse. While I note he has indicated he would seek further psychological treatment if he returned to Pakistan, his evidence does not suggest that he has any intention of disclosing his history of abuse to his family or to any other person outside of a therapeutic context. The evidence before me suggests the applicant would not be known or perceived by his family or any member of the community to be a victim of sexual abuse or rape, on his return. As such I am not satisfied that he would face any associated stigma or discrimination from his family, or that if he returned to Pakistan he is likely to be estranged from his family for these reasons.
The Authority then relatedly reasoned at [78]-[81]:
78. The applicant has claimed he does not know whether the man who perpetrated his abuse has remained in [redacted]. I accept he is fearful that he may cross paths with the perpetrator if he returned to [his home area]. In this respect I note that the perpetrator is not related to the applicant, nor does it appear that he is known to his friends or family members, and he does not live in the same area… as the applicant’s family. The applicant does not suggest that he and the perpetrator have had any contact with each other in the years since he left for Australia, or that they perpetrator has acted on his past threats to expose the applicant’s status as a former victim of his abuse. The applicant has not claimed that the perpetrator would disclose his past abuse of the applicant if he returned to [redacted].
79.While the applicant states he is not aware of the perpetrator’s current circumstances or whereabouts, I note that he is aware that the perpetrator has since become widely known in the [redacted] community as a child abuser and he has faced what appears to be a form of communal punishment on this account. Noting these matters, and considering that the applicant would be returning to his family home in [redacted], and as an adult, I consider the possibility of the applicant being harmed by, or coming into contact again with, the same person to be no more than a remote possibility.
80.The applicant has not indicated he intends to disclose his abuse to his family. The delegate found that the applicant, on return to [redacted], would not disclose to his family or his community in [redacted] that he is a victim of sexual abuse. I note that, in the submission to the IAA, which takes issues with many of the delegate’s findings and continues to assert he would seek treatment for his mental health condition, does not suggest the applicant intends to disclose his history of abuse to his family. Even if the applicant chose to disclose his history of abuse to members of his family, I am not satisfied that the consequences of doing so would, in of themselves, give rise to a real chance of serious harm, noting the lack of any evidence before me that suggests young adult men who disclose former experiences of abuse as a child face a real chance of harm as a result of that disclosure or of any associated stigma.
81.In this regard I note DFAT’s observations with respect to the introduction of criminal charges against perpetrators of child sexual abuse in 2016, and their observation that these laws have led to substantial increases in public reporting and prosecution of child abuse cases in Pakistan. I consider the chance he would be harmed as a result of being known to be a former victim of child sex abuse if he were to return to [redacted], is remote. Further, for the reasons given below I am also not satisfied that he would face a real chance of harm for reasons of his mental health condition which, at least in part, is a result of his abuse.
The Authority accepted that the applicant may continue to take pain medication related to injuries suffered in an accident. However, the Authority did not accept that these issues would prevent him from undertaking any form of work in Pakistan. The Authority accepted that the applicant suffered from PTSD and that this may have had some effect on his ability to recall precise dates and events. However, the Authority was satisfied that the applicant had been given a meaningful opportunity to address issues and present his claims (at [21]-[29]).
The Authority accepted that the applicant’s father’s business had been destroyed some time ago and that he had been injured in an explosion. However, it found the applicant’s evidence regarding his family’s income and assets to be vague and inconsistent. Whilst the Authority accepted that the applicant may be expected to work upon return to Pakistan, it did not accept that the family would be reliant upon his income for subsistence or that he could not rely upon his family for support (at [33]-[37] and [53]).
The Authority was not satisfied that the applicant was part of a group of students kidnapped by the Taliban. The Authority found the applicant’s evidence in this regard to be inconsistent and otherwise problematic, even allowing for the possible effect of his mental health condition (at [38]-[47]). The Authority did not accept that the applicant was personally known to any Sunni extremist group for this or any other reason (at [52]).
The Authority accepted that the applicant’s personal information was inadvertently made available for a brief period on the Department’s website in 2014. The Authority accepted that it was possible that this report may have been downloaded and that it may be inferred from it that the applicant had sought asylum in Australia (at [48]-[49]).
Having regard to available country information and the applicant’s profile, the Authority considered that any risk of harm to the applicant for reasons of him being a young man who was the eldest son of his family, a Pashtun Shia of his tribe and area, whose personal details were published, and who would be returning from Australia having sought asylum, to be remote (at [54]-[77]).
Having then considered and found that the applicant would not face a real chance of harm by reason of childhood abuse (at [78]-[81], as set out above), the Authority considered that the applicant would not face a real chance of harm on account of his mental health condition. This condition, the Authority recognised at [81], was at least in part as a result of the abuse. The Authority did not accept that the applicant’s wish not to disclose the abuse to his family would prevent him from seeking counselling services or accessing medication (at [86]). However, the Authority accepted that counselling services may not be as available, or to the same standard, as those available in Australia (at [86]-[89]).
The Authority concluded, however, that the applicant would not be denied access to such services for any reason other than the challenges faced by a poorer country like Pakistan in terms of funding its health facilities. The Authority considered that there was no evidence suggesting any intention to inflict harm in this regard. The Authority was not satisfied that the applicant would be precluded by his physical and/or mental health conditions from working, or that he could not rely upon his family and/or broader networks for assistance. The Authority was not satisfied that a person in the applicant’s circumstances, who may continue to suffer from PTSD, was at significant risk of mistreatment or discrimination such that it would amount to serious harm (at [92]). Nor was the Authority satisfied that any harm that the applicant may experience as a result of his mental health condition would be intentionally inflicted upon him, such that it might give rise to a real risk of significant harm (at [99]-[100]).
The Authority found that there was no more than a remote chance of the applicant being harmed on his return journey back to his home area. The Authority also found that the chance of the applicant being killed or seriously injured during a militant attack, as a result of military operations, or due to an encounter with an unexploded ordinance, to be remote (at [93]-[94]).
Having regard to the above, the Authority concluded that the applicant was unable to meet the criteria for a protection visa. Accordingly, it affirmed the Delegate’s decision (at [95]-[102]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the current proceedings on 22 May 2020 relying upon the following grounds (underlining removed):
Ground 1: That the finding of the Second Respondent that the Applicant would not be persecuted for the sexual abuse that he suffered as a child on return to Pakistan because he would remain silent about it amounted to a jurisdictional error and the Second Respondent’s purported decision was a nullity because (1) the Second Respondent failed to ask itself whether the Applicant would remain silent in order to avoid the risk of persecution or (2) the Second Respondent implicitly, and unlawfully, asked whether the Applicant could live in Pakistan in such a way as to avoid adverse consequences.
Particulars:
At [20] of its decision the Second Respondent found that the Applicant, because he had not made any statement that he would be interested in doing so, would not disclose his history of sexual abuse as child to his family or to any other person outside of the therapeutic context if returned to Pakistan and thus would not suffer any associated stigma or discrimination from his family or others as a result.
(i) At no point in its reasoning at [20] of its decision or elsewhere did the Second Respondent ask if the Applicant would remain silent about his history of abuse upon return to Pakistan in order to avoid persecution.
(ii) The Second Respondent erred in failing to ask itself this question: ESD17 v Minister for Immigration [2018] FCA 1716 at [34].
(iii)Alternatively, the Second Respondent implicitly asked itself whether the Applicant could live in Pakistan in such a way as to avoid adverse consequences in a way that led to error: NABD/2002 v Minister for Immigration and Multicultural Affairs (2005) 215 ALR 1 at [151].
Ground 2: The failure by the Second Respondent to respond to the case put to it by the Applicant in purporting to affirm the decision of the Minister’s delegate to refuse the Applicant’s application for a Protection visa amounted to a jurisdictional error and the Second Respondent’s purported decision is a nullity.
Particulars
(i)The Applicant put forward a case to the Second Respondent that he had a well-founded fear of persecution on the grounds of his religion, his ethnicity, his membership of two social groups, his history of being sexually abused as a child and his mental and his physical ill health as set out in section 5J(1)(a) of the Migration Act 1958 (Cth).
(ii)At no point in its decision did the Second Respondent directly respond to the case put forward by the Applicant, especially by asking itself the questions required by the statutory provisions.
(iii)Alternatively, the Second Respondent did not apply the statutory test as required by law.
Ground 1
Ground 1 contended that the Authority erred by (1) failing to ask itself whether the applicant would remain silent regarding the sexual abuse that he suffered as a child in order to avoid the risk of persecution, or (2) implicitly, and unlawfully, asking whether the applicant could live in Pakistan in such a way as to avoid adverse consequences.
The applicant relied upon ESD17 v Minister for Immigration [2018] FCA 1716 (ESD17), in which it was stated by Rangiah J at [33]-[34]:
33.In Minister for Immigration and Border Protection v SZSCA, Gageler J, referring to S395, said at [36]:
The principle for which that case stands is that a fear of persecution for a Convention reason, if it is otherwise well-founded, remains well-founded even if the person concerned would or could be expected to hide his or her race, religion, nationality, membership of a particular social group, or political opinion by reason of that fear and thereby to avoid a real chance of persecution.
34.In the present 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”.
The applicant also relied upon Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29; (2005) 216 ALR 1 at [151] per Hayne and Heydon JJ:
151.The Tribunal did not ask itself a wrong question. It considered whether the appellant had a well founded fear of persecution if he returned to Iran. It did not ask (as had been the case in Appellant S395/2002) whether it was possible for the appellant to live in Iran in such a way as to avoid adverse consequences… (footnote omitted)
The applicant submitted that the reasoning in ESD17 was “directly applicable” in the present case. At [20] of its decision, the Authority relied upon reasoning that the applicant’s evidence did not suggest that he had any intention of disclosing the abuse outside of a therapeutic context. The Authority therefore did not accept that the applicant would face any associated stigma or discrimination. As the Authority reasoned within the context of s 5J(1)(b), the applicant submitted that it was bound to consider the reasons why he did not intend to disclose the abuse.
The applicant’s evidence on this point, it was submitted, indicated that this arose from stigma associated with sexual abuse, and his fear that disclosure would bring shame and dishonour. In this regard, the applicant’s representatives had submitted (at CB 262):
1.30The Applicant instructs that prior to revealing this information to RACS on the day of the Interview, and then subsequently the Department, he had only engaged on this topic with his previous counsellor at STARTTS [redacted]. The Applicant explains that due to the stigma surrounding sexual assault in Pakistan, he felt too ashamed to tell any of his family members about this and that if this information was to become public he believes that he would have brought shame to his father and his family.
The applicant submitted that this was not considered by the Authority, which therefore did not properly undertake its task in relation to s 5J.
However, I accept the Minister’s submission that this matter is distinguishable from ESD17. In the present case, it is apparent from the Authority’s reasoning that the Authority did not consider that the claimed basis for the applicant’s non-disclosure of abuse (i.e. stigma) amounted to serious or significant harm within the meaning of the Act. At [80]-[81] of the Authority’s reasoning, the Authority relevantly found:
80.… Even if the applicant chose to disclose his history of abuse to members of his family, I am not satisfied that the consequences of doing so would, in of themselves, give rise to a real chance of serious harm, noting the lack of any evidence before me that suggests young adult men who disclose former experiences of abuse as a child face a real chance of harm as a result of that disclosure or of any associated stigma.
81.In this regard I note DFAT’s observations with respect to the introduction of criminal charges against perpetrators of child sexual abuse in 2016, and their observation that these laws have led to substantial increases in public reporting and prosecution of child abuse cases in Pakistan. I consider the chance he would be harmed as a result of being known to be a former victim of child sex abuse if he were to return to [his home area], is remote…
Therefore, whilst I accept that stigma may be capable of resulting in harm amounting to persecution in some cases, it is apparent that the Authority did not accept that the applicant faced a real chance of such harm as a result of disclosure of the abuse “or any associated stigma” in the present case (at [80]).
The applicant made four arguments regarding why this reasoning was said to have not been dispositive:
(a)Firstly, that the applicant’s claims in this regard were required to be, but were not, considered cumulatively with other risk factors he raised including his religion and ethnicity with respect to the harm he might face from Sunni militia or terror groups. This is the subject of the applicant’s complaint under ground 2. For the reasons that I have given under that ground, I do not accept that this contention is made out.
(b)Secondly, the applicant referred to country information said to indicate a “deeply religious society with draconian views on family honour and in particular the connection between familial reputation and sex”. The applicant relied upon country information regarding the treatment of others in Pakistan, such as female victims of sexual assault. However, such country information was not of direct application to the applicant’s circumstances. In any event, the Authority did not reason at [80]-[81] that the applicant would not encounter any stigma or issues as a result of any disclosure. Rather, it reasoned that any such stigma would not result in harm that was capable of attracting Australia’s protection obligations under the Act.
(c)Thirdly, it was submitted that if the Authority had properly understood its task, it may have exercised its powers to obtain new information. This was having identified a lacuna in the evidence regarding the reason(s) why the applicant would not disclose the abuse. However, I have not been persuaded that the Authority misunderstood its task in the manner contended. It is also not apparent that there was a lacuna in the evidence that may realistically have been expected to have prompted the Authority to have sought out new information. As set out above, the applicant gave reasons at CB 262 for why he had been unwilling to disclose the abuse. Whilst the Authority considered at [80] that there was no evidence before it suggesting that young adult men who disclosed experiences of childhood sexual abuse faced a real chance of harm, it is apparent that the Authority considered that this was because it was not the case (and not because it required some further information in order to make its decision).
(d)Fourthly, the applicant submitted that the Authority’s reasons at [80]-[81] were not given the “same level of consideration as its primary findings”. However, the Authority’s reasoning at [80]-[81] was capable of informing (and appears to have informed) its primary reasoning in relation to s 5J(1)(b) of the Act. The Authority appears to have accepted that the applicant’s non-disclosure of the abuse was motivated by a fear of stigma, but that “any associated stigma” did not amount to persecution. In any event, it has not been demonstrated that the Authority’s reasoning at [80]-[81] was relevantly closed to it, nor incapable of sustaining the Authority’s decision on an alternative basis.
For the above reasons, I accept the Minister’s submission that the Authority did not fall into the species of error considered in ESD17.
I further accept the Minister’s submission that materiality in the sense considered in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 has not been established. This is because the Authority effectively reasoned that any subjective fear of persecution by reason of stigma associated with disclosure of the abuse was not well-founded.
Ground 1 is therefore unable to succeed.
Ground 2
Ground 2 contended that the Authority failed to respond to the case put to it by the applicant. This was said to have occurred by the Authority failing to consider the cumulative effect of the abuse that the applicant suffered as a child, and the applicant’s mental health issues, upon the risk of harm the applicant may face in conjunction with his claims regarding ethnicity, religion, apparent westernisation and potential status as a failed asylum seeker.
The applicant’s claims were set out in some detail in submissions made by the Refugee Advice and Casework Service (RACS) dated 13 February 2020. It was submitted (at CB 258) that the applicant feared persecution in Pakistan for the following “essential and significant reasons”:
(a) his Shi’a Muslim religious beliefs, identification and practice as a Shi’a;
(b) his ethnicity… ;
(c) his membership of a particular social group as an unaccompanied minor who arrived in Australia;
(d) his membership of a particular social group as a failed asylum seeker, with actual and perceived links to a western country,
(collectively, the Convention Reasons).
This persecution was said to involve serious harm in the form of:
(a) threats to the life or liberty of the Applicant;
(b) significant physical harassment or ill-treatment of the Applicant; or
(c) threats to the Applicant’s capacity to subsist, including denial of the ability to achieve a basic level of subsistence.
The applicant was submitted to face significant harm (at CB 259) by reference to:
(a) the Convention Reasons cited above at paragraph 1.3;
(b) the Applicant’s history of being sexually assaulted as a child; and
(c) the Applicant's physical and psychological ill health, for which ongoing and specialised treatment is required and would either by unavailable or denied upon return to Pakistan…
RACS submitted, generally, that the applicant’s “claims for protection must be considered both individually and cumulatively” by reference to W352 v MIMA [2002] FCA 398 at [21] (at CB 258 and 260). However, the submissions did not explain the cumulative connection between the claims, other than in limited respects. In particular, RACS referred to the connection between the applicant’s mental health condition and the sexual assaults he had suffered. Reference was made to the stigmatisation of such health issues and to the inadequacy of treatment in Pakistan. It was submitted that these matters were likely to affect the applicant’s ability to work and therefore his ability to subsist (at CB 260, 281, 286-288 and 460). In submissions that were subsequently provided to the Authority, the relationship between the sexual assaults and the applicant’s mental health condition was reiterated. The applicant claimed that he would be unable to access effective medical treatment in Pakistan in respect of his condition. These hurdles together with societal discrimination were submitted to mean that the applicant would face a real chance of serious harm relating to his mental ill-health (CB 499).
As was submitted by the Minister, the duty of the Authority was to consider the applicant’s claims as advanced, or as squarely arose on the material before it. A finding that an unarticulated claim “clearly emerges”, is “squarely raised” or is “plain” on the materials is not to be made lightly: AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 at [67], AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 at [18]. The fact that a claim “might” be seen to arise on the materials is not enough: NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263; (2004) 144 FCR 1 at [68].
In written submissions, the applicant submitted that the Authority only considered the risk of harm relating to disclosure of the abuse in and of itself, but failed to consider whether the applicant may face exclusion from his family or wider community and whether this exclusion together with his return as an asylum seeker, age, apparent westernisation, and religious and ethnic profile elevated his risk of harm to a real or significant chance. However, more limited submissions were made towards specifically identifying the particular cumulative effect of the applicant’s claims that the Authority was contended to have been obliged to have considered, and yet failed to consider.
In this regard, the applicant submitted that the material before the Authority suggested that disclosure of his status as a survivor of childhood sexual abuse and mental health condition may have led to the family or community disowning him (thus impacting upon his ability to subsist). It was submitted that such a claim clearly arose and needed to be considered together with the evidence before the Authority regarding stigma, child sexual abuse and mental health.
In this way, the applicant sought to draw an analogy between this case and MZXKX v Minister for Immigration [2008] FMCA 567 (MZXKX). In MZXKX, there were a combination of factors said potentially to lead to the applicant in that case being unable to subsist in Cambodia. Significantly, in that case the Tribunal accepted that the applicant may face rejection from his family due to discrimination. Also implicit in the Tribunal’s reasons was said to be the proposition that once the applicant’s medical condition reached a certain point then his capacity to subsist may be threatened (at [17]). Within this context, denial of the only support available to him (said to be the likely scenario in that case) due to discrimination needed to be assessed within the context of the applicant’s ability to subsist (at [18]-[26]).
In contrast, in the present case, the applicant never claimed that his family would reject him or otherwise refuse to support him if the abuse or his mental health condition became known. Such a serious claim did not clearly arise from there being some references in the general country information to some families who had mistreated family members who had been assaulted (in different circumstances to the applicant) or diagnosed with mental illness. The applicant made no claim that his family, with whom he had apparently maintained a loving and supportive relationship, would treat him in such a manner. Whilst the applicant claimed that he had not disclosed the abuse to his family due to stigma, feelings of shame and fear of bringing shame to his family, he did not claim that his family would refuse to support him in response in a manner that threatened his ability to subsist. I am not persuaded that such a claim clearly arose on the materials. Further, it is apparent from [80]-[81], [86] and [91] of the Authority’s decision that the Authority did not accept that the applicant would be denied the support of his family, or the community, even if he disclosed the abuse that he had suffered and even acknowledging the stigmatisation of mental health in Pakistan.
The Authority was not satisfied that the consequences of exposing the abuse would result in the applicant being exposed to a real chance of relevant harm (at [80]-[81]). Whilst it did use the language “in and of themselves” when referring to the consequences of disclosing the abuse in part of [80] of its reasoning, its subsequent language in [80]-[81] indicates that its reasoning was of broader effect. The Authority relied upon the lack of evidence before it suggesting that young adult men who disclosed former experience of abuse as children faced a real chance of harm as a result of that disclosure “or of any associated stigma”. The Authority also relied upon information regarding the increased reporting and prosecution of child abuse cases in Pakistan since 2016. The Authority then concluded at [81] that the chance of the applicant being harmed “as a result of” it becoming known that he was a child sexual abuse survivor if he were to return to his home area was “remote”.
At [81], the Authority also acknowledged the connection between the applicant’s experiences of abuse and his mental health condition. The Authority then went on to consider whether this may give rise to a real chance of relevant harm. This followed the Authority’s recognition of the connection between these claims, as they had been advanced. It also followed the Authority’s recognition of the applicant’s claims that the stigmatisation of mental illness, together with inadequate treatment being available in Pakistan, may result in the applicant not being able to access the treatment that he needed and that this was connected to his ability to earn a livelihood and to subsist (at [8]).
At [84]-[85], the Authority observed the limitations in the evidence before it regarding the applicant’s mental health condition. In particular, it observed that the most recent letter from the applicant’s psychologist did not give any detailed opinions regarding the severity of the applicant’s condition nor how it may be affected if the applicant returned to live with his family in Pakistan.
Whilst the Authority accepted that the applicant did not wish to disclose the abuse to his family, it did not accept that this would prevent him from seeking counselling or accessing medication. This was notwithstanding the Authority’s acknowledgment that misunderstandings and stigmatisation in some communities led to some individuals seeking inadequate or non-medical forms of treatment or intervention (at [86]).
The greater difficulty for the applicant, the Authority appears to have reasoned, would arise from general limitations in the health system in Pakistan. The Authority concluded that the applicant would be able to access anti-depressant medication in his home area but that it was unlikely that he would receive the same standard of counselling that he would receive in Australia. The Authority accepted that the applicant may not be able to access counselling services at all in his home area (at [89]). The Authority concluded, however, that the applicant would not be denied access to such services “for any other reason than the challenges faced by a poorer country like Pakistan in terms of funding its health facilities”. This, it was found, did not involve any intention to inflict harm (at [90]).
I do not accept the applicant’s suggestion in written submissions that this failed to grapple with the applicant’s claims that health services in Pakistan were “grossly inadequate” and affected by community stigma. The Authority’s reasoning was consistent with this, and appears to have proceeded based upon an acceptance of it.
Nor do I accept that the Authority was bound to reason that the applicant’s condition would deteriorate due to a lack of access to adequate treatment, which when taken together with the applicant’s other claims, such as social stigma, could result in a real chance of relevant harm. It is apparent that the Authority did not consider that it had adequate evidence before it regarding the effect upon the applicant’s mental health condition if he returned to Pakistan to live with his family (at [84]). The Authority considered that the evidence before it of the psychologist’s findings was “expressed in a very general manner and [did] not give any indication of the forms of harm [the applicant] might face as a consequence of a possible deterioration in his mental health”: at [88].
At [91], the Authority expressly rejected that the applicant would be precluded by his physical or mental health conditions from undertaking any type of work if he returned to Pakistan. The Authority also rejected that the applicant would be unable to rely upon his family’s support and/or the support of broader social and tribal networks. This was notwithstanding its findings at [82]-[90] regarding the applicant’s mental health condition (including limitations in treatment) and its acknowledgement of the stigmatisation of mental health in Pakistan. The Authority therefore rejected the applicant’s claim that his ability to subsist would be threatened (at [91]). The Authority concluded that it “not satisfied that a person in the applicant’s circumstances”, including by reference to his mental condition, was at risk of mistreatment or discrimination amounting to serious harm (at [92]). The Authority was also not satisfied that any harm that the applicant may experience as a result of his mental health condition would be intentionally inflicted on him, such that it gave rise to a real risk of significant harm (at [99]-[100]).
The applicant has not demonstrated how the Authority could otherwise be said to have been obliged to have reasoned, but failed to have reasoned, regarding the cumulative effect of his claims. Although reference was generally made to the applicant’s claims regarding his ethnicity, religion and other features, the applicant has not demonstrated any particular cumulative effect in this regard that the Authority was required to consider and yet failed to consider on the facts of this case. At hearing, it was suggested that the risk of violence being exacerbated in some way, such as through the applicant becoming homeless, might have been considered by the Authority had it considered the applicant’s claims regarding abuse and mental illness cumulatively. However, the fact that such a claim “might” be said to have arisen (with some creative effort) is not sufficient to demonstrate an obligation upon the Authority to have considered it: AYY17 at [18]. In any event, it is apparent from the Authority’s reasoning summarised above that the Authority did not accept that the applicant would become homeless or otherwise be exposed to a real chance of relevant harm if he disclosed the abuse, or because of his mental illness.
It follows that ground 2 is unable to succeed.
CONCLUSION
For the above reasons, I am obliged to dismiss the application before the Court. I must do so despite the considerable sympathy I feel for this applicant who, through no fault of his own, has had his life affected in a very real and harmful way through the actions of another. I do not wish to underestimate how difficult it may have been for the applicant to have had these issues discussed as part of the protection visa process and in these proceedings before the Court. Nor do I wish to underestimate the courage that this has required on the part of the applicant.
However, as the applicant’s capable representatives have no doubt explained to him, the role of this Court in judicial review proceedings is limited to determining whether or not the Authority’s decision was affected by jurisdictional error. As I have not found that such error has been demonstrated on the grounds that have been relied upon on his behalf, the application before the Court must be dismissed.
I will hear from the parties in relation to costs.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 8 June 2023
0
10
0