CKT16 v Minister for Immigration

[2020] FCCA 1267

FEDERAL CIRCUIT COURT OF AUSTRALIA

CKT16 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1267

Catchwords:
MIGRATION – Visa application – judicial review of protection visa – no failure to consider relevant material – no failure to consider applicant’s claim – question as to applicant’s credibility – Tribunal considering applicant’s claims as they were presented to it – claims of risk of harm on mental health grounds not sufficiently clearly advanced that Tribunal erred in failing to consider them – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 65

Cases cited:

Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
Minister for Immigration and Citizenship v MZYZA (2013) FCA 572
NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695

Applicant: CKT16

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1868 of 2016

Judgment of: Judge McNab

Hearing date: 13 February 2020

Date of Last Submission: 13 February 2020

Delivered at: Melbourne

Delivered on: 22 May 2020

REPRESENTATION

Counsel for the Applicant: Ms Delany

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the Respondents: Mr Wood

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The application filed on 1 September 2016 and amended on 14 January 2020 be dismissed.

2. The applicant pay the costs of the first respondent fixed in the sum of $5,400.

3. The name of the first respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Melbourne

MLG 1868 of 2016

CKT16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

Administrative Appeals Tribunal

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application dated 1 September 2016 and amended on 14 January 2020, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 5 August 2016. The Tribunal’s decision affirmed a decision of a delegate (‘Delegate’) of the first respondent (‘the Minister’) refusing to grant a Protection (Class XA) visa (‘the visa’) pursuant to s 65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The matter was heard on 13 February 2020.

3. For the reasons which follow I have concluded that the application should be dismissed.

Background

1. The applicant is a citizen of Pakistan from the Parachinar province. He is of Pashtun ethnicity and a Shia Muslim.

2. The applicant arrived in Australia on 22 July 2012.

3. On 7 October 2012, the applicant completed an entry interview.

4. On 17 December 2012, the applicant applied for the visa.

5. On 2 October 2013, the then Department of Immigration and Citizenship (‘the Department’) invited the applicant to a hearing before the Delegate.

6. On 22 October 2013, the applicant attended an interview with the Delegate.

7. On 20 January 2014, 22 January 2014 and 20 February 2014, the applicant’s representative provided additional supporting documents to the Department.

8. On 15 April 2014, the Delegate refused to grant the visa.

9. On 30 April 2014, the matter was referred to the Refugee Review Tribunal, as it was then known (‘the RRT’).

10. On 1 May 2015, the RRT wrote to the applicant’s representative acknowledging the application.

11. On 17 June 2015, the RRT wrote to the applicant’s representative inviting the applicant to appear before the Tribunal.

12. On 23 July 2015, the applicant’s representatives provided further submissions to the Tribunal.

13. On 24 July 2015, the applicant’s representative wrote to the Tribunal requesting witnesses give evidence at the hearing.

14. On 24 July 2015, the Tribunal wrote to the applicant’s representative informing them that the hearing was postponed to allow for the witnesses to attend in person.

15. On 31 July 2015, the applicant’s representative wrote to the Tribunal informing it that the aforementioned witnesses cannot appear in person, and proposing another witness (Mr Asif Ali) who can attend in person.

16. On 7 August 2015, the Tribunal wrote to the applicant’s representative rescheduling the hearing to 4 September 2015.

17. On 28 August 2015, the applicant’s representative wrote to the Tribunal attaching further documents.

18. On 4 September 2015 the applicant appeared before the Tribunal to give evidence and present arguments. The hearing was part heard and adjourned to a date to be decided.

19. On 19 April 2016, the Tribunal wrote to the applicant’s representative inviting the applicant to attend the resumption of the adjourned hearing that was scheduled to take place on 17 May 2016.

20. The rest of the background to this matter is accurately set out in the submissions filed on 30 January 2020 on behalf of the Minister:

    11. On 13 May 2016, Mr Horsley [the applicant’s representative] sent the Tribunal the report from the applicant’s treating counsellor dated 11 May 2016 and requested that it be provided to the Member prior to the hearing. In the Report, Ms Krstic, who had been seeing the applicant since October 2015, stated that she had “serious concerns about his grasp of proceedings, his ability to understand questions and to respond appropriately”. She said that she was “equally concerned about the impact of his psychological state on his ability to function adequately at the hearing”. (However, Ms Krstic confirmed that she was not providing an opinion “on the link between his psychological symptoms and his report past experiences”.)

    12. On 16 May 2016 – the day before the scheduled hearing – a Tribunal officer contacted Mr Horsley by telephone. A file note of their conversation states as follows (emphasis added):

    Representative returned my call and I explained that the member has considered the counsellor’s report sent on Friday and notes the issues raised regarding the applicant’s ability to participate in a hearing. I asked him for instructions on how the applicant would like to proceed given the representative’s understanding of the report and situation. The representative relied that he was not in a position to make an assessment on the applicant’s ability and the counsellor has the expertise. The counsellor did indicate to him that it would be good to postpone the request,  however he notes that he can’t make a request for no good reason, and some time has lapsed since the adjourned hearing and he is aware that the matter cannot be postponed indefinitely, nor should it be delayed.

    I advised the Tribunal will consider a postponement request if the applicant is not able to participate in a meaningful way. A request needs to be made in writing with the reasons for the request and advice on when the applicant will be available for a resumed hearing. The representative said he understood and would contact the applicant directly for instructions and contact me urgently.

    13. Subsequently, on the same day, the Tribunal wrote to the applicant and stated”

    On 19 April 2016 we sent a letter inviting you to attend a hearing on 17 May 2016 to give evidence and present arguments relating to the issues arising in your case. On 16 May 2016 we received a request that the hearing be postponed. The Member has agreed to the request and the hearing will be rescheduled.

    The Tribunal notes that your counsellor has indicated in her letter dated 11 May 2016 that an opinion on your psychological function can be provided. The Tribunal would appreciate a more detailed report from your counsellor which also addresses the issue of when you will be in a position to attend a hearing.

    14. On 31 May 2016, Mr Horsley emailed the Tribunal, and relevantly stated (emphasis added):

    We are … advised that [the applicant’s] mental health momentarily deteriorated following 17 May 2016. However, since then, [the applicant] has been prescribed anti-depressant and sleeping tablets by his GP. [The applicant’s] Counsellor has recommended that [the applicant] see a psychiatrist and has indicated to us that [the applicant’s] mental health situation seems to have stabilised for the time being. She recommends a resumed hearing as soon as possible.

    15. Accordingly, on 30 June 2016, the Tribunal invited the applicant to a resumed hearing on 14 July 2016. On 13 July 2016, Mr Horsley provided a “response to hearing invitation” form to the Tribunal. The form indicated that the person should identify any issue that affected their ability to take part in the hearing (e.g., a health problem or disability): no issue was identified. Nor did Mr Horsley identify any issue in his covering email to the Tribunal.

    16. On 14 July 2016, the resumed hearing was conducted. No transcript of that hearing has been adduced in evidence. Nor has any other evidence been adduced that suggested that the applicant was in any way substantially impaired in giving evidence or presenting argument at that hearing.

    17. On 28 July 2016, Mr Horsley provided a post-hearing submission.

    (citations omitted)

21. On 5 August 2016, the Tribunal affirmed the Delegate’s decision not to grant the applicant the visa.

Grounds of review

1. The applicant’s amended application filed 14 January 2020, seeks review of the Tribunal’s decision on the following grounds:

   1. Failure to consider relevant material in the form of a counsellor’s report dated 11 May 2016, affecting the exercise of the Tribunal’s powers, and thereby amounting to jurisdictional error.

   2. Failure to consider component integer of the applicant’s claim, that the applicant claimed to face harm on return to Pakistan on account of his mental illness, amounting to jurisdictional error.

Applicant’s submissions

1. The applicant submits that the Tribunal failed to evaluate or engage with the aspect of his claim that he suffers mental health problems and is thus at risk if return to Pakistan. The applicant says that this constitutes a jurisdictional error and that the Tribunal’s decision must be quashed.

Ground 1 – alleged failure to consider Report

1. The applicant refers to a report from the applicant’s counsellor, Ms Krstic, dated 11 May 2016 (‘the Report’) which outlined the applicant’s difficulty coping with everyday life, poor mental and physical health and poor communication and comprehension in the previous 7 months (since October 2015).

2. The applicant says that the Tribunal’s failure arises because despite the Report being before the Tribunal, ‘it failed to consider the Report as critical corroborative evidence explaining the applicant’s confusion and brief responses at his entry interview.’

3. The applicant submits that the Report should be considered relevant material because the applicant’s poor mental health was put before the Tribunal through the Report, the applicant’s 2016 statutory declaration were he referred to being ‘totally confused’ at his entry interview, and his post-hearing submissions.

4. At [28] of his submissions the applicant states that:

   28. Whilst the Counsellor’s Report was not raised by the applicant’s representation as corroborative evidence for his confusion and brief answers at his entry interview, the decision in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) establishes that the review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it.

5. The applicant says that the Court should infer from the Tribunal’s failure to mention the Report in its reasons that the Tribunal did not have regard to it.

6. With regards to credibility, the applicant also submits that this failure impacted the Tribunal’s exercise of its powers and that ‘adverse credit findings based on the brevity of the applicant’s answers at the entry interview underpinned the Tribunal’s dismissal of the applicant’s claims’.

   a)In arguing that the Tribunal could have assessed the applicant’s credibility differently had it been conscious of the Report, the applicant reiterates that the Tribunal ‘could have found that the applicant’s poor mental health corroborated his self-described confusion’ as explaining his failure to raise certain claims at the entry interview.

   b)The applicant says that if the Tribunal had considered the Report, it could (and should) have found his claims to be credible because the Report helps explain why certain claims were not raised at the entry interview.

7. The applicant deposes that this failure constitutes a jurisdictional error.

Ground 2 – alleged failure to consider a claim

1. The applicant claims that the Tribunal failed to consider and evaluate the his claim that he faced harm and would be at risk on return to Pakistan due to his mental health condition, and that this failure fell into jurisdictional error.

2. He asserts that this claim supports that he may face persecution as a member of a particular social group (a Turi Shia Muslim from Parachinar with a mental health condition) and supports that he would be at significant harm if returned.

3. Citing the decision in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, the applicant alleges that the Tribunal ‘failed to form the state of satisfaction required for the purposes of review as to the applicant’s claim that he met the refugee criterion and/or the complimentary protection criterion’.

4. The applicant says that his claims that his mental health put him at risk if returned to Pakistan were raised:

   a)in post-hearing submissions, as a factor that indicated that he ‘would have a profile’ if returned to Pakistan and in relation to relocation;

   b)in the Report; and

   c)in an email from the applicant’s representative to the Tribunal dated 31 May 2016.

5. Regarding cumulative consideration, the applicant submits that the Tribunal failed to meet its requirement to consider cumulatively his claim to be at risk of harm due to mental illness when considering his other claims.

First respondent’s submissions

1. With respect to the applicant’s allegation that the Tribunal did not consider certain information, the Minister relies on Tracey J’s decision in Minister for Immigration and Citizenship v MZYZA (2013) FCA 572 to support its proposition that the mere fact that the Tribunal does not expressly refer to an item of evidence in its statement of evidence does not lead to the conclusion that the Tribunal failed to consider it.

Ground 1 – alleged failure to consider Report

1. The Minister responds to the applicant’s claims, saying that the file note of 16 May 2016 clearly records the Tribunal considering the Report. And at [29] of his submissions the Minister says that ‘the absence of any reference to the Report in the written statement of the Tribunal … does not undermine or contradict that the Tribunal did consider the report.’

2. The Minister suggests that clear explanations for the absence of reference to the Report in the Tribunal’s reasons include that:

   a)on 31 May 2016, the applicant’s representative confirmed with the Tribunal that the applicant’s mental health had stabilised such that Ms Krstic had recommended that a hearing be conducted;

   b)while the applicant’s representative did refer to the Report in his post-hearing submissions, he did so ‘only for the purpose of’ arguing certain points regarding relocation, and relocation was unnecessary for the Tribunal to consider, so it is ‘therefore unsurprising that the Tribunal did not refer to the Report in this context’.

Ground 2 – alleged failure to consider a claim

1. The Minister says that the Tribunal did not make a jurisdictional error by failing to address the applicant’s claim to be at risk of serious or significant harm by reason of any mental health condition, and that this ground of review must also be dismissed for substantially similar reasons.

2. The Minister notes that the applicant had not raised the claim to satisfy the criteria in section 36(2) of the Act by reason of any mental health condition prior to the provision of his post-hearing submissions on 28 July 2016, noting that the applicant did not raise these points at the Tribunal hearings nor in his submissions dated 23 July 2015.

3. The Minister submits that even within the post-hearing submissions, the reference to the applicant’s mental health condition fell within a discussion about relocation, and it says at [34] that:

   […] But these submissions were clearly directed at the question of whether it would be “reasonable” to expect the applicant to relocate within Pakistan, if it were established that he faced a real chance or real risk of suffering from serious or significant harm in Pakistan.

4. With regards to the applicant’s claim that his mental health condition is a contributing factor to him having a profile if forcibly returned to Pakistan, the Minister states that:

   a)the part of the post-hearing submissions referring to his mental health condition was headed “Summary”;

   b)that part of the post-hearing submissions addressed only the risk of receiving inadequate health care, not some notion that he would have a “profile” attracting the threat of others, e.g. extremist groups;

   c)the applicant’s statutory declaration filed with the Tribunal on 27 July 2016 did not suggest any such concern or risk;

   d)the Tribunal found that the applicant was not of any interest to the Taliban; and

   e)the applicant did not claim to be at risk of serious or significant harm by reason of any mental health condition.

Consideration

1. In matters in which jurisdictional error is asserted to arise because of failure to consider information, the starting point of any enquiry is to examine what it was that was before the Tribunal and what the Tribunal made of it.

2. In his irregular maritime arrival entry interview, the applicant’s claims are set out at CB10. His claims were, essentially, that he left Pakistan because of insecurity and his life was in danger. There was, quite clearly, no mention of mental illness in this interview.

3. The applicant’s application for a Protection (Class XA) visa was accompanied by a statutory declaration, which is at CB49 to CB54. This statutory declaration was plainly made with the assistance of the migration agent who completed the relevant declaration at CB47. The statutory declaration is detailed. It sets out the volunteering work that the applicant said he had undertaken, and consequential threats by the Taliban. I note that the applicant was conscious that he was now raising matters not raised in his entry interview, as he said at [14] of CB52:

   I did not provide the details of this incident in the entry interview as I was not given any opportunity. I spoke about my brother’s death first and I was told that they already had enough information and moved on to the next question.

4. The applicant’s claims were plainly centred on his Turi Pashtun ethnicity and Shia religion, and the perception of the Taliban that the applicant was against them, because he had assisted many people from their attacks: [19]. The applicant went on to depose that he feared harm, including kidnapping, detention, physical assault and death at the hands of the Taliban on account of his religion, ethnicity and perceived opposition of the Taliban. This was said to prevail through the whole of Pakistan: [23], CB53.

5. A departmental officer wrote to the applicant’s migration agent seeking further information about documentation (CB83), and the applicant’s response, dated 22 January 2014, is at CB85 to 102 (including related documents). The response dealt with the issue of documents raised by the departmental officer and the identity of the applicant. The applicant provided a further statement (CB90 to 91), but none of it touched upon his mental health.

6. The decision of the Delegate is at CB108 to 126. It is sufficient to note that no questions arose or were determined relating to the applicant’s mental health.

1. The applicant filed a further tranche of material in preparation for the hearing due on 27 July 2015. The applicant’s statutory declaration is at CB176 to 180 and, once again, no issues are raised as to the applicant’s mental health. There was mention, in the applicant’s agent’s written submission, regarding shortages of medical supplies and adequate medical facilities in Parachinar, but these only arose (at CB145) in the context of the applicant being a taxi driver who transported Shia Muslims to hospital. On 13 May 2016, the applicant’s representative wrote to the Tribunal attaching a report from the applicant’s counsellor, requesting that the report be provided to the presiding Member prior to the hearing due to take place on 17 May 2016 (CB219).

2. The Report is at CB221 to 222. The Report is from Ms Krstic and is dated 11 May 2016. She sets out serious concerns about the applicant’s grasp of proceedings, his ability to understand questions and to respond appropriately. She was concerned about the impact of his psychological state on his ability to function adequately at the hearing.

3. I note that Ms Krstic had been seeing the applicant weekly since October 2015. Perhaps the tenor of the Report is best indicated by the final full paragraph which reads:

   My concern is that in his upcoming hearing, the questioning will trigger unmanageable memories, resulting in (CKT16) emotionally withdrawing, shutting down, and becoming muddled and unable to fully participate and explain his case. In addition, my very recent realisation that he has a limited appreciation of the seriousness of his situation also raises the need for an assessment of his intellectual functioning.

4. On 16 May 2016, a Tribunal officer spoke with the applicant’s representative. Relevantly (CB223) the file note states that ‘the member has considered the counselor’s report sent on Friday and notes the issues raised regarding the applicant’s ability to participate in a hearing.’

5. On the same day, the Tribunal wrote to the applicant (CB225) agreeing to the request for a postponement of the hearing and stating:

   The Tribunal notes that your counselor had indicated in her letter dated 11 May 2016 that an opinion on your psychological function can be provided. The Tribunal would appreciate a more detailed report from your counselor which also addresses the issue of when you will be in a position to attend a hearing.

6. On 31 May 2016, the applicant’s representative replied (CB226). Relevantly, this response stated:

   (CKT16’s) Counsellor has clarified with us that her report of 11 May 2016 was an opinion on his psychological function. Her report states at the end of the first paragraph:

   “I am not providing an opinion on the link between his psychological symptoms and his reported past experiences as the purpose of the sessions was not to elicit a trauma history, but I can provide an opinion on his psychological functioning”.

   We are advised that the remainder of the report was “an opinion on his psychological function”.

   We are also advised that (CKT16’s) mental health momentarily deteriorated further following 17 May 2016. However, since then (CKT16) has been prescribed anti-depressants and sleeping tablets by his GP. (CKT16’s) Counsellor has recommended that (CKT16) see a psychiatrist and has indicated to us that (CKT16’s) mental health situation seems to have stabilised for the time being. She recommends a resumed hearing as soon as practicable.

7. Unsurprisingly, given that response, on 30 June 2016 the Tribunal wrote to the applicant and invited him to attend a resumed hearing on 14 July 2016 (CB228).

8. The applicant filed a response to the hearing invitation (CB231 to 233). At CB231 there was a question, “Is there any issue that may affect your ability, or that of any other person attending, to take part in the hearing (e.g. a health problem or disability)? If so, please provide details”.

9. Nothing was inserted in that section of the response, nor did the covering letter raise any such matter (CB230).

10. Following the hearing on 14 July 2016, the applicant’s representatives sent a post-hearing submission (CB238 to 262). The extremely detailed and thoroughly drawn submissions did not raise any issues as to whether his mental health might have in any way incapacitated his participation in the hearing regarding the issue of relocation within Pakistan. At CB256 the submission set out:

    Further to our previous submission concerning the issue internal relocation, we submit that (CKT16’s) mental health is a further factor that renders relocation elsewhere in Pakistan unreasonable. In this respect, we note again his clear subjective fear of returning to Pakistan, and strong fear that he will be killed. We refer to (CKT16’s) Counsellor’s report of 11 May 2016 in this regard:

    He suffers from intrusive thoughts, nightmares and inability to sleep. His main coping strategy is complete withdrawal and dissociation. He avoids being around people and does not share his feelings and thoughts, as he becomes anxious and over-aroused. The sleeping disturbances are affecting his daily functioning and often he presents as disturbed and dissociated. He also suffers from an eating disturbance whereby he can only tolerate limited amounts of food, which has caused a massive weight loss. Suicidal ideations are always present.

    Given this, we submit that it is foreseeable that his mental health may deteriorate if he is returned to Pakistan.

11. Country information was also referred to support the proposition that there was limited access to mental health care and effect of stigma surrounding mental illness (CB257 to 258).

12. The submission continued at page CB259:

    In this context, we submit that (CKT16) would be limited in his ability to access the mental health care he requires if he is returned to Pakistan. Considering (CKT16’s) personal circumstances in their totality, we submit that it would not be reasonable for him to relocate to another area of Pakistan.

13. Under the heading Summary, at CB262, the submission relevantly asserted:

    We submit that the following factors, taken either individually or cumulatively, indicate that (CKT16) would have a profile if forcibly returned to Pakistan:

    -He is a Turi Shia Muslim from Parachinar; and/or

    -His brother was killed by the Taliban; and/or

    -His uncle killed by local villagers on payment from the Taliban; and/or

    -His aunt’s husband was killed by the Taliban and pro-Taliban Sunnis near Sada; and/or

    -He witnessed the death of his third cousin while he was travelling in a convoy that was attacked; and/or

    -He personally received threats from the Taliban amounting to persecution; and/or

    -He had a role in transporting persons injured by the Taliban and/or Sunni extremists;  and/or

    -His current mental health condition;  and/or

    -He has applied for asylum in a Western country.

We submit that (CKT16) has a well-founded fear of persecution for the reasons outlined above and those previously submitted. Alternatively, we submit that there is a real risk he will suffer significant harm if returned to Pakistan.

1. The applicant’s accompanying statutory declaration, at CB263 to 266, does not touch on his mental health at all. Indeed, insofar as it deals with relocation to Rawalpindi, Islamabad or Lahore, the matters raised solely went to the activities of terrorist groups in those cities.

The decision of the Tribunal

1. The Tribunal set out the application for review and the relevant law at CB285 to 287. No criticism was made of those matters.

2. The Tribunal considered the claims in evidence at CB287 to 304. The Tribunal set out in full the statutory declaration at CB287 to 290. The Tribunal resolved the question of bogus documents favourably to the applicant: [24], CB291. The Tribunal did not, however, find the applicant’s claims regarding his activities assisting injured Shias in Parachinar and alleged threats from the Taliban credible. In part, because they were matters that the applicant had not stated in his entry interview. At [33], CB292, the Tribunal recorded:

   Following the hearing the applicant provided a statutory declaration responding to the information it put to him under s.424AA of the Act. The applicant claimed that when he arrived in Australia and had the entry interview with the Department his mind was totally confused, the interview was done over the phone and he had no legal advice at that point.

3. At [35], CB293, the Tribunal said:

   While the Tribunal accepts that part of the entry interview was conducted over the phone, the applicant had no legal representation during this interview and that the applicant may not have had the definition of refugee explained to him or that he did not have experience of applying for protection, the Tribunal does not accept that this adequately explains why he would not mention anything about the repeated personal threats he had received from the Taliban because of his alleged activities transporting injured Shias.

4. The balance of the reasons are concerned with a detailed analysis of the applicant’s primary claims and the reasons why the Tribunal did not accept them. As a result, the Tribunal was not required to deal in terms with the relocation issue. It should be noted that, at [72], the Tribunal itemised a number of matters which it had considered individually and cumulatively and did not refer to the applicant’s mental health in that paragraph (CB304). The same can be said of its consideration of the complementary protection obligations at CB304 to 306.

Ground 1 – failure to consider the counsellor’s report

1. The first respondent is certainly correct to assert that the Tribunal was aware of the counsellor’s report and, indeed, acted upon it by giving the applicant an adjournment. It is clear that the applicant at no stage, even though thoroughly competently represented, suggested that he was not able properly to participate in the Tribunal’s proceeding.

2. The kernel of the complaint made is at [26] of the applicant’s written submissions:

   Despite the Counsellor’s Report being before the Tribunal, and the applicant’s poor mental health otherwise being referenced before the Tribunal, the Tribunal failed to consider the Counsellor’s Report as critical corroborative evidence explaining the applicant’s confusion and brief responses at his entry interview.

3. No submission in anything like these terms was apparently ever advanced to the Tribunal itself. To the contrary, as I have just indicated, the applicant had expressly failed to make any suggestion that his mental health had impacted upon his entry interview.

4. Next, contrary to the applicant’s submission, the counsellor’s report did not cover the period when the applicant was giving his entry interview in 2012. She had only started to see him in 2015.

5. The post-hearing submissions, at CB256, to which I have referred, merely refer to the applicant’s mental health as a factor rending relocation in Pakistan unreasonable. There is a generalised assertion that it was foreseeable that the applicant’s mental health may deteriorate if he was returned to Pakistan. It should be noted that this is a very short passage in what was otherwise a 25-page written report. The applicant did refer to his current mental health condition as one of the factors which individually or cumulatively might give the applicant a profile if forcibly returned to Pakistan, at CB262, but there is no articulation as to why that would give a profile such as to attract the attention of the Taliban.

6. In circumstances where the mental health issue is raised in the fashion that it was, no submission was ever made that the applicant’s failure to mention matters at his entry interview was by reason of his mental health difficulties some years later, in my view, the Tribunal cannot be said fairly to have fallen into error in failing to consider the matter in that way. While it is, of course, true that the proceedings are essentially inquisitorial rather than adversarial, the observations of Allsop J in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15], are apposite:

   …the statutory task of the Tribunal is to assess the claims by reference to all the material not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.

7. In circumstances where the applicant was represented, as the first respondent submits, by competent persons with knowledge of this area of the law, the Tribunal did not, in my view, fail to consider the report as to the applicant’s mental health in any material way.

Ground 2 – failure to consider an integer of the applicant’s claim, whether the applicant faced harm on return to Pakistan on account of his mental health conditions

1. The applicant submits that the Tribunal failed to consider an integer of the applicant’s claim to the effect that he faced harm on return to Pakistan on account of his mental illness, such omission amounting to jurisdictional error.

2. I have already traversed the material in respect of the applicant’s mental health above. The first respondent is correct to submit that at no point did the applicant’s representative identify any aspect of the applicant’s mental health that gave rise to a serious risk of harm upon return to satisfy either section 36(2) or section 36(2)(aa) of the Act. I accept that there was reference to the applicant’s mental health in the post-hearing submission at CB256, but this was solely in the context of internal relocation, a factor the tribunal did not need to consider because it rejected the applicant’s claims generally.

3. As the first respondent correctly submits, the highest point of the assertion is at CB262, where the applicant’s ‘current mental health condition’ was listed as a matter that might give rise to a profile on the part of the applicant if he was forcibly returned to Pakistan.

4. Looking at the reasons fairly and as a whole, it does not seem to me that the Tribunal failed to consider a matter raised in so tangential and limited a way. It follows that the Tribunal did not fall into jurisdictional error, because the claim was not, in my view, sufficient clearly articulated (and in my view not clearly articulated really at all) in the voluminous materials that the applicant had forwarded.

5. The Court records its appreciation of the clear written and oral submissions made by Counsel in the proceeding which were of assistance.

Conclusion

1. In all the circumstances, the grounds of application are not made out and the application will be dismissed.

I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:

Date: 22 May 2020