CUD17 v Minister for Immigration
[2018] FCCA 1049
•3 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CUD17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1049 |
| Catchwords: MIGRATION – Protection visa application – review of Administrative Appeals Tribunal decision – whether the Tribunal erred in not seeking contemporaneous medical report concerning applicant’s medical condition – whether the Tribunal constructively failed in making a decision without such medical report – was the Tribunal’s reasoning with respect to employment in Sri Lanka irrational, illogical or without intelligible justification – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 414, 420, 422B |
| Cases cited: Ashraf v Minister for Immigration & Border Protection [2018] FCAFC 50 |
| Applicant: | CUD17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 342 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 14 February 2018 |
| Date of Last Submission: | 14 February 2018 |
| Delivered at: | Perth |
| Delivered on: | 3 May 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr MGS Crowley |
| Solicitors for the Applicant: | AUM Legal |
| Counsel for the Respondents: | Ms S J Oliver |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 342 of 2017
| CUD17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Sri Lanka who suffers from chronic schizophrenia. He arrived in Australia in August 2012 and lodged an application for a protection visa on 16 August 2013. On 4 April 2014, a delegate of the Minister for Immigration made the decision to refuse to grant the applicant a protection visa and the applicant applied to the Refugee Review Tribunal[1] (RRT) for review of that decision.
[1] The functions of the Refugee Review Tribunal were taken over by the Administrative Appeals Tribunal on 1 July 2015.
The RRT affirmed the delegate’s decision on 8 June 2015 however, by orders made on 29 September 2015 this Court set aside that decision and remitted the matter to the Administrative Appeals Tribunal to be determined according to law.
Although the applicant had made various claims in support of his protection visa application relying, amongst other things, on his political opinion, he confined his claims before the Tribunal to a claim for complementary protection under s.36(2)(aa) of the Migration Act 1958 (Cth). That claim[2] was based on the:
… Applicant’s chronic schizophrenia; resultant intentional social isolation and denial of employment informed by Sri Lankan cultural attitudes toward mental illness, and; the combined effect upon the Applicant’s mental health of social and economic ostracism and involuntary repatriation to Sri Lanka, including imprisonment as an illegal emigrant, in a grossly inadequate Sri Lankan prison.
[2] Applicant’s submissions at [1].
At a hearing conducted by the Tribunal, the applicant’s advisor informed the Tribunal that the applicant had an appointment to see a treating psychiatrist shortly after the hearing and that a report from that psychiatrist would be sent to the Tribunal. In post hearing submissions the applicant’s solicitor referred to the newly obtained report from the treating psychiatrist although, through his own error, failed to include a copy of that report.
In its reasons the Tribunal referred to the post hearing submissions and recorded the fact that the newly obtained psychiatric report was not before it.
Amongst its other findings, the Tribunal found that it was not satisfied that the applicant would be unable to find some form of employment on return to Sri Lanka due to his mental health illness. In arriving at that conclusion, the Tribunal referred to the fact that the applicant had been able to gain and hold employment in Australia despite having limited English language skills and little experience.
The applicant now seeks judicial review of the Tribunal’s decision. He argues that the Tribunal fell into two errors: first, that it erred by failing to make an effort to obtain the new psychiatric report; and secondly, that in relying upon the applicant’s work experience in Australia, the Tribunal engaged in an illogical reasoning process because there was no evident, intelligible basis for comparing the employment situation in Australia for people with psychiatric illnesses and the situation in Sri Lanka.
For the reasons that follow, the Tribunal did not fall into jurisdictional error in either its failure to obtain the psychiatric report relied upon by the applicant, or in connection with its consideration of the prospect of the applicant obtaining employment in Sri Lanka.
Background
In the statutory declaration that accompanied his visa application the applicant claimed that he feared persecution due to his political and imputed political opinions. These claims were later withdrawn by the applicant and it is unnecessary to consider them further.
The applicant also claimed that he had suffered from mental health issues. In this respect, he said, after referring to an incident in which his business had been forcibly taken by a local politician:
5.8The stress and anxiety caused by this episode resulted in me being hospitalised for about a week in the Angoda Hospital Psychiatric Ward.
5.9Due to my mental state I am not very certain about events at this time. I was diagnosed with schizophrenia and given medication to treat that condition. My wife is able to give more information about my mental state because she was had to look after me at a time when I was not able to look after myself properly.
…
5.13I was unable to work because of my depressed mental state between 2005 and 2006. My friend, Sarat, helped me and my family financially during this time.
(Without alteration)
The applicant went on to recount what occurred in three disputes that he had had. The first dispute arose when a person refused to pay him a share of profits gained from the use of the applicant’s fishing nets. The second also arose out of the use of the applicant’s fishing nets. The third involved the land that had been taken from the applicant. The applicant explained:
5.23… One day I went to the land and Fernando was not there. … so I took a big bush knife I used to cut trees and cut the pipe which supplied water from my/Fernando’s land to the Army base.
When I did this an Army man threatened to shoot me and I had to run away and escape. I escaped and rang the Church bell at a nearby Church and after that I remember being in Kandana. I don’t recall how I went from Trincomalee to Kadana.
This incident happened after I let the pigs out of Christie’s farm as explained in 5.24 below.
5.24In November 2011 I made Christie very angry when I let his pigs out and they ran away from his land. I did this because he insulted me and two of my friends by offering them a meal which had pork in it. One friend was Tamil and the other was a Muslim.
The pigs were also being kept next to some houses and the people were always complaining about the smell from Christies farm. The pigs were a health hazard.
5.25In January 2012 my wife took me back to the hospital because my mind was very “topsy turvey”. I think I was admitted to the Ragama Hospital. I was given medication and I had to go back to the Hospital every month.
5.26I have been “depressed” on many occasions and sometimes I have had to go to hospital. I can’t remember all of the things I have done. My wife tells me that I sometimes used to “fight” with her.
Later in the declaration the applicant said that he had not mentioned his illness earlier because he had been confused and upset.
Also included with the visa application was a report dated 15 June 2013 from a clinical and forensic psychologist, Dr Galloghly. The report included the following summary of the psychologist’s opinion about the applicant:
●[the applicant]’s reported experiences of trauma and threat in the context of the Sri Lankan Civil War, and his personality, most likely make him susceptible to psychological distress.
●[the applicant]’s reported mental health history suggests that due to business-related interpersonal issues, he at times suffered from clinical levels of distress that required psychiatric treatment.
●While he has seemingly received past diagnoses of Schizophrenia and Bipolar Affective Disorder, there is insufficient information to substantiate such diagnoses. Rather, he appears to have required acute (short-term) psychiatric treatment in response to episodes of significant psychological decline due to stress.
●His vague and fragmented memory of past mental health problems is common for people who have experienced highly stressful or traumatic experiences, and may also be associated with his dependency on his wife in coordinating his treatment.
●Based on my clinical impressions and judgement, there was no obvious indication that [the applicant] was malingering when describing his history of mental health issues.
●[the applicant]’s reported experiences may increase his risk of future mental health issues in highly stressful environments.
(Without alteration except that the applicant’s name has been replaced with “the applicant”)
On 4 April 2014, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. The applicant applied to the RRT for review of that decision.
In submissions to the RRT the applicant’s agent referred to the report of Dr Galloghly and said:
…
Claimant was happier and more secure in Australia and hence was not exhibiting any signs of the mental disorders triggered by the stressful episodes he had suffered in Sri Lanka.
It is respectfully submitted that given the Claimant past experiences in Sri Lanka and his history of suffering mental health disorders when under severe stress, and given the fact that much of the stress is the result of the perceived injustices or unfair treatment Claimant sees himself as suffering at the hands of the rich, the powerful and the politically connected in Sri Lanka, it is probable that the Claimant will again suffer mental health issues if he is returned to Sri Lanka.
It is submitted that Claimants past behaviour indicates that, when he is mentally unwell due to stress, he engages in irrational and potentially dangerous behaviour, such as releasing Christie’s pigs or chopping the army water-pipe with an axe, and if Claimant is returned to Sri Lanka it is likely that he will again behave in a manner which puts his life and that of his family at risk.
…
(Without alteration)
The applicant attended a hearing conducted by the RRT on 4 May 2015. In post-hearing submissions, the applicant’s agent addressed the question of relocation and stated:
…
4.2.2The circumstances of this case point to a situation where, if Claimant is returned to Sri Lanka, he will be unable to cope and will fall back into a condition of depression and psychosis in which he may again engage in dangerous and irrational behaviour and so endanger himself and his family.
The Claimant gave evidence about the lack of stress and pressure in his life in Australia. He would have access to mental health care in Sri Lanka but would almost certainly require hospitalisation and drug therapy. His evidence indicated that one of the effects of his mental condition and the drug treatment in Sri Lanka was to make him unaware of his actions.
The mental state of the Claimant upon arrival in Australia was such that it was impossible to take instructions from Claimant and the processing of his case had to be delayed until such time as Claimant had received treatment and assistance to the point where he was able to coherently present his claims. The Claimant should not reasonably be expected to return to Sri Lanka and suffer serious mental health issues again.
On 8 June 2015 the RRT made a decision to affirm the delegate’s decision; however, that decision was set aside by orders made in this Court by consent on 29 September 2015. The matter was remitted to the Tribunal to complete the review of the delegate’s decision.
When the matter was remitted to the Tribunal the applicant was once again invited to attend a hearing to give evidence and make submissions. On 29 March 2016 the applicant’s agent wrote to the Tribunal requesting an adjournment of the hearing for 6 months. The agent explained that the applicant was undergoing treatment as an outpatient at the Bentley Community Mental Health Services (Bentley) for his mental illness and that he was “afraid that, going through the hearing during the AAT, all the incidents that have happened to him in Sri Lanka, which led him to seek asylum in Australia, will cause a relapse of his mental illness.” The agent also stated that he was in the process of seeking advice from the applicant’s doctor about his illness and the danger that might arise if his illness were to “relapse”. The agent noted that the applicant was an active outpatient at Bentley, attended regular appointments at the Mills Street Centre outpatient clinic every 6 weeks, was on antipsychotic medication and next had an appointment on 27 April 2016.
A report from the Bentley Clinic dated 2 October 2015 concerning the period 12 August 2015 to 3 September 2015 was attached to the letter. The report indicated that the applicant had been admitted to hospital on 12 August 2015 as an inpatient after displaying bizarre behaviour including erratic thinking, euphoria, trances, aggression, sexual disinhibition and nonsensical speech. The applicant was discharged on 3 September 2015.
Also enclosed with the letter was a note from a psychiatric registrar at the Bentley Clinic, Dr Sunil Gupta, summarising the report.
The Tribunal granted the adjournment and informed the applicant’s agent that it would be assisted by advice from the applicant’s treating practitioner on the following questions (without alteration):
●what is the diagnosis?
●can the applicant understand the nature of the proceedings?
●can the applicant give evidence under oath?
●can the applicant give instructions to his or her adviser?
●can the applicant present arguments in support of his or her claims?
●can the applicant understand and answer the Tribunal’s questions?
●if the answer to any of the above is no; then when will the applicant be able to do so (prognosis)?
●is he on any medication that will affect his memory or his capacity to participate meaningfully in a hearing.
On 5 June 2016, the agent sent 2 reports to the Tribunal: one from Dr Gupta dated 4 May 2016; the other from the Armadale Kelmscott Hospital Department of Emergency Medicine concerning the applicant’s admission as an inpatient in August 2015. In his report, Dr Gupta noted that the applicant’s diagnosis was Schizophrenia and that he had been compliant with his medication and had mental stability over the past few months. He said that the applicant had the capacity to understand the nature of proceedings and give evidence under oath, provided that his mental state was stable at the time and the details were explained to him in his own language by an interpreter. However, he noted that stress could limit the applicant’s capacity to give instructions to his advisor and present arguments and that the applicant had a tendency to get confused under pressure and stress. Finally, Dr Gupta wrote:
…
In the recent medical assessment at Bentley Clinic, [the applicant] presented as anxious and stressed related to his visa application. He reported decreased appetite, poor concentration and difficulty in sleep which are stress related in his case. Currently, he is not experiencing any psychotic symptoms but the increase in stress level can have the potential risks of relapse of his psychotic illness.
On 13 July 2016, the Tribunal sent the applicant a further invitation to a hearing which was to take place on 3 August 2016. On 2 August 2016, the applicant’s agent wrote to the Tribunal asking for a further postponement of the hearing pending “full assessment of the applicant’s ability to participate in the AAT’s hearing due to his mental illness.” In a letter sent the following day, the agent explained that the applicant was unable to participate in the hearing on that day or at any time in the near future “unless the applicant has fully recovered from his schizophrenia diagnosis.” The Tribunal again granted the agent’s request and adjourned the hearing.
On 19 September 2016 the Tribunal sent a further hearing invitation to the applicant for the hearing to take place on 9 November 2016. The Tribunal informed the agent that he should “provide a written submission setting out all claims made and maintained by the applicant by 2 November 2016”[3] and that the “submission should be accompanied by a signed declaration from the applicant that the submission has been read and explained to them and that it accurately and completely presents their claims”.
[3] Emphasis in original.
On 28 September 2016 the applicant’s agent sent the Tribunal a further report from Dr Gupta. The agent noted that, although the report was dated 26 August 2016, the agent had only received it on 26 September 2016. In his report Dr Gupta wrote:
[the applicant] is a client of Bentley outpatient mental health Clinic. His diagnosis is Schizophrenia. He is having treatment with antipsychotic medications. His condition is chronic and therefore he will have to continue his treatment for the rest of his life. In the last few assessments at MSC, he was excessively worried about the outcome of his visa application resulting in increased anxiety and depressive symptoms with suicidal ideations. It resulted in increased risks of self-harm. To contain risks, we had to organize more frequent medical appointments with intensive follow up by case manager. He was also started on antidepressant medication. As long as he continues his treatment and stays away from stress, he stays stable but if he gets noncompliant with medications or expose himself to stressful circumstances, there are potential risks of relapse of psychotic and depressive symptoms.
(Without alteration except that the applicant’s name has been replaced with “the applicant”)
On the eve of the hearing the applicant’s agent wrote once more to the Tribunal submitting that the applicant was not fit to “endure the inquisitorial nature of the Tribunal hearing.” The agent presented 2 proposals: first, that the hearing be adjourned until the applicant’s treatment was completed; and secondly, for there to be an inquiry into the applicant’s mental condition and ability to give evidence. The Tribunal replied to the agent indicating that, while the applicant was not required to attend the hearing the following day, it wished the agent to attend so that there could be some discussion about the case.
A further hearing was scheduled by the Tribunal for 8 March 2017 and that was later changed to 19 April 2017 because an interpreter was not available on 8 March 2017.
On 1 March 2017, the applicant’s agent wrote to the Tribunal stating that the applicant no longer pursued the claim of fearing harm from the LTTE[4] and Mr Pushpakummar.
[4] Liberation Tigers of Tamil Eelam.
On 19 April 2017 the applicant and his agent attended a hearing conducted by the Tribunal. At the hearing, the applicant’s agent indicated that the applicant had an appointment with Dr Gupta scheduled for 5 May 2017 and that he intended to provide a contemporaneous report to the Tribunal[5]. At the conclusion of the hearing the Tribunal gave the applicant the opportunity to provide written submissions and further information in support of his claims by 3 May 2017.
[5] Transcript p.6 lines 10-15.
On 9 May 2017 the applicant’s agent sent a submission to the Tribunal. In his submission, the agent stated that the documents evidencing the applicant’s condition were:
1.Mills Street Centre report (2015, 2016 and 2017):
2.Armadale Kelmscott Hospital (2015)
The first of those was a reference to documents prepared by Dr Gupta. The 2015 document was the Bentley clinic notes of the applicant’s admission as an inpatient. That document was before the Tribunal. So too were 3 other documents from Dr Gupta made in 2016: a letter and 2 reports: see [22] and [25] above. The third report, dated 2017, was not before the Tribunal but was summarised in the agent’s 10 May 2017 submission. The agent gave evidence in these proceedings that he thought he had included a copy of the report in his submission to the Tribunal.
The relevant parts of the submission included the following:
…
Evidence that he has stress-induced psychosis
…
2.Dr Sunil Gupta (Psychiatric Registrar) – 2016
a.Patient was posing risks to others and himself and it was noted that stress was one of the main causes of his psychotic relapse.
b.“Any incident that increases his stress level and anxiety has potential to cause relapse of his psychotic illness. As noted in his last hospital admission, when his mental state deteriorates, he becomes at risk to himself and others”.
3.Dr Sunil Gupta (Psychiatric Registrar) – 5 May 2017
a.[applicant’s] conditions is chronic and therefore he will have to continue his treatment for the rest of his life. As long as he continues his treatment and stays away from stress he stays stable but if he gets noncompliant with medications or expose himself to stressful circumstances, there are potential risks of relapse of psychotic and depressive symptoms.
…
If forced to return
…
The investigations, interrogations and detention will put the client under a lot of stress. Such stressful conditions will cause a relapse of his schizophrenia.
The Mills Street Centre report (2015, 2016 and 2017)
●Deterioration in his mental state: bizarre behaviour, aggression, sexual disinhibition, perceptual disturbances, labile mood and impaired judgment.
○Patient was posing risks to others and himself
○Noted that stress was one of the main causes of his psychotic relapse
○Any incident that increases his stress levels and anxiety has potential to cause relapse of his psychotic illnesses
○Stress was related to his visa application.
(Emphasis in original)
It will be necessary later in these reasons to consider the contents of Dr Gupta’s 5 May 2017 report and to determine whether there was anything in that report that differed from the agent’s summary of it.
On 26 May 2017, the Tribunal made a decision to affirm the delegate’s decision.
In its reasons for decision the Tribunal first summarised the applicant’s evidence and claims. It summarised the 10 May 2017 submissions at [49]:
A further submission was received after the hearing. It was submitted that the applicant has been diagnosed with schizophrenia which is currently being managed by antipsychotic medications which he is required to take for the remainder of his life. The submission refers to the various medical reports provided that confirms the diagnosis. It was submitted that if the applicant is placed under stress or is non-compliant with his medications, it is extremely likely he will relapse and experience psychotic symptoms. The submission refers to comments by the medical professionals that indicate the applicant has required acute treatment in times of significant stress, stress is one of the main causes of his psychotic relapses and the applicant’s condition is chronic and he will have to continue treatment for the remainder of his life. If the applicant becomes non-compliant with medications or exposes himself to stressful circumstances, there are potential risks of relapse of psychotic and depressive symptoms.
The Tribunal next set out its assessment of the applicant’s evidence and claims. The Tribunal accepted that the applicant had mental health issues that had arisen prior to his departure for Australia and that he had received treatment for his illness. It accepted that the applicant had cut the water pipe and let his neighbour’s pigs out and that that had happened because of the applicant’s poor mental health: [59]. However, it did not accept that the Army or his neighbour were looking for him as a result of these incidents or that the applicant was in hiding and concluded that the applicant would not be harmed on return for that reason.
In dealing with the claim that the applicant would not receive the same treatment for his illness in Sri Lanka as he would in Australia, the Tribunal referred, at [98], to the 10 May 2017 submission. It noted:
[100]Despite the written submission referring to a letter from the applicant’s treating psychiatrist, Sunil Gupta from the Mills Street Centre, dated 5 May 2017 and a report from Mills Street Centre dated 2015, these documents were not provided to this Tribunal and are not on the departmental file.
The Tribunal addressed Dr Gupta’s May 2016 report and noted that it indicated that the applicant’s “condition is chronic and he will have to continue his treatment for the rest of his life” and that the applicant was “increasingly worried about the outcome of his visa application” and that more frequent medical appointments and more intensive follow-up had been organised: [101].
The Tribunal rejected the claim that the applicant’s psychotic episode in August 2015 was the result of the first Tribunal decision ([103]) but did accept that the process of seeking protection was difficult and stressful for applicants and that a decision to affirm the delegate’s decision would be stressful for the applicant: [104]. However, it found that there were support systems in place for the applicant and that it was speculative to say, as the applicant had, that the applicant would be detained and deported in an unstable condition.
The Tribunal then turned to consider what may occur in respect of the applicant’s mental illness on his return to Sri Lanka. First, it noted the submissions concerning the ill-treatment of mentally ill people; the lack of proper treatment for them; that it was unlikely for them to be employed and likely for them to be shunned by society: [106]. Next, the Tribunal made findings about those submissions:
[107]The evidence from the applicant indicates he was able to access treatment and his wife assisted him in accessing that treatment. His evidence indicates he was a successful business man in Sri Lanka and while he claims his wife has now sold his nets, his licence has been cancelled and he has no equipment, he has in the past, despite his mental health issues, been able to operate and conduct successful businesses. The Tribunal acknowledges he has also made poor business decisions in relation to [name] and his brother-in-law, but overall was able to successfully run his businesses. The Tribunal acknowledges that during the war he lost his licence for the land in Trincomalee due to the war and being absent from the area for some time. He has been able to gain and hold employment in Australia despite having limited English language skills and little experience and the Tribunal is not satisfied on the available evidence that the applicant will be unable to find some form of employment on his return to Sri Lanka due to his mental health illness. The Tribunal also does not accept that the applicant will be shunned by his family or society because of his schizophrenia or mental health issues based on his past experiences where his family supported him and he was able to successfully operate businesses and live in the community.
The Tribunal also found that there was no evidence that the applicant would not be able to access mental health services or that he would be denied such services for a Convention reason: [109]. While the Tribunal did accept that the availability and standard of those services in Sri Lanka were not the same as in Australia, it did not accept that that gave rise to a real chance of serious or significant harm: [110] – [113].
In considering the possible impact of the stress of returning to Sri Lanka, the Tribunal rejected the claim that the applicant would relapse, and found that he may relapse if he stopped being compliant with his medication: [117]. However, it concluded that there was nothing to indicate that the applicant would not continue to be compliant ([118]) and, in any event, did not accept that if the applicant did have another psychotic episode in Sri Lanka he would be detained permanently.
The Tribunal went on to consider the claims concerning the applicant’s illegal departure and unsuccessful claim for asylum and concluded that the applicant did not satisfy the criteria for the grant of a protection visa and so affirmed the delegate’s decision.
The applicant seeks judicial review of the Tribunal’s decision. At the hearing, he pressed only the first and third ground in his amended application.
Consideration
First ground: the Tribunal constructively failed to exercise its jurisdiction in making a decision involving the applicant’s schizophrenia and causes of any psychotic episodes without asking for the contemporaneous psychiatric report of Dr Gupta dated 5 May 2017, the existence of which the Tribunal was well aware
The applicant argued that the Tribunal had been put on inquiry as to the existence of Dr Gupta’s May 2017 report by the agent’s statement at the hearing that he intended to obtain a further report, and by the fact that it was summarised in the agent’s 10 May 2017 submissions. That much may be accepted. As I have noted, the Tribunal referred to the submissions in its statement of reasons and noted that, while the report was referred to, a copy of it was not provided along with the submissions: [100].
The applicant submits that it was self-evident that the failure to include the report was an oversight that was easily rectified. He argues that, while “there is no general duty on the Tribunal to make inquiries”, where there is an obvious inquiry about a matter that is readily available and which is centrally relevant to the decision to be made, the failure to make the inquiry may constitute a constructive failure to exercise jurisdiction: Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155, 169-170; [1985] FCA 46; Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273, 289-290; [1995] HCA 20; Minister for Immigration & Citizenship v Le (2007) 164 FCR 151, 174-179; [2007] FCA 1318; Wei v Minister for Immigration & Border Protection (2015) 257 CLR 22, [49]; [2015] HCA 51.
The applicant argued that his mental health and the likelihood and causes of a relapse, were central to the determination of the review. While Dr Gupta’s May 2017 report was similar to his report of 26 August 2016, it was not co-extensive with it. The May 2017 report contained the following relevant additional material:
a)“Medical reviews and case management every 4-6 weeks”;
b)“A combination of home visits and clinic appointments”;
c)“Direct contact with case manager”; and
d)“An express causative linkage between mental health and ‘various psychosocial stressors, including the stress about the outcome of the visa application’.”
The applicant argued that the new material in the report was, or would have been, relevant to the Tribunal’s finding that there was no real risk of social ostracism or denial of employment, and that it directly challenged the Tribunal’s conclusion that there was no causative link between the first Tribunal’s decision and the psychotic episode in August 2015.
The applicant also submitted that, to the extent that the May 2017 report was co-extensive with the earlier report, it still had additional evidentiary value because it came with the benefit of an additional 9 months of observation of the applicant.
The Minister submitted that there was no new material in the May 2017 report and that the argument that the report could have been relevant to some of the Tribunal’s findings was speculative: Patel v Minister for Immigration & Border Protection [2014] FCCA 2059. It is not clear why the Minister relied on Patel. In that case, Judge Cameron rejected an argument that the Tribunal fell into jurisdictional error by failing to make an obvious enquiry because the applicants had not demonstrated “that the fact which they said could easily have been ascertained actually existed”: [29]; see on appeal Patel v Minister for Immigration & Border Protection (2015) 145 ALD 566 at [40]; [2015] FCAFC 22 (Flick J). That is not the case here. The report of 5 May 2017 did exist and was in evidence. It is set out in its entirety at [59] below.
The principles concerning a failure by the Tribunal to make an inquiry were summarised by the Full Court of the Federal Court in Ashraf v Minister for Immigration & Border Protection [2018] FCAFC 50 at [56]:
56There does not appear to be any significant difference between the parties as to the applicable principles, which may be briefly stated as follows. The authorities establish that the Tribunal has no general obligation to initiate enquiries or to make out an applicant’s case for him or her: Le at [60] and cases there cited. In SZIAI, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ noted (at [20]) that “[t]he failure of an administrative decision-maker to make inquiry into factual matters which can readily be determined and are of critical significance to a decision made under statutory authority, has sometimes been said to support characterisation of the decision as an exercise of power so unreasonable that no reasonable person would have so exercised it”. Their Honours said (at [21]) that the observations of Wilcox J in Prasad may support such a proposition. After noting, at [23], that the proposition that may emerge from Prasad had not been the subject of full consideration by the High Court, and referring to observations that had been made in certain cases, their Honours said (at [25]):
“Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a ‘duty to inquire’, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. 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. It is not necessary to explore these questions of principle in this case.”
(Footnote omitted.)
The applicant placed considerable reliance on the judgment of Nettle J in Wei. While Nettle J agreed with the orders proposed by the majority (Gageler and Keane JJ), his reasons were different and so do not form the ratio of the decision. In any event, that case presents a useful example of the application of the relevant principle.
In Wei, a delegate of the Minister cancelled the plaintiff’s student visa on the basis that he had not complied with a condition of the visa that he be enrolled in a course of education provided by a registered education provider. The plaintiff was in fact enrolled in such a course but, through an error made by the education provider, his enrolment had not been recorded in the approved electronic database. The plaintiff never received notice of the intention to cancel his visa which would have given him the opportunity to know of, and to correct the error made by the education provider. Nettle J found that there was a constructive failure to exercise jurisdiction by the delegate. His Honour’s critical reasoning is in the following passage:
50In this case, the delegate was put on inquiry. As a result of the return of his letter of 3 February 2014 as “unclaimed”, he knew that the address shown in the records of the Department of Immigration and Border Protection as being the plaintiff’s address was not the plaintiff’s address. As a result of the return of his letter of 25 February 2014, he also knew that the address of the plaintiff supplied by the University was unlikely to be the plaintiff’s address. Inasmuch as the delegate knew that none of the communications which he had sent to the plaintiff had reached the plaintiff, the delegate knew that the plaintiff did not know that the Minister proposed to cancel the visa. As a result, the delegate also knew that the plaintiff would not have the opportunity, which ss 119-121 of the Migration Act contemplated that the plaintiff should have, of demonstrating to the Minister why the supposed ground of cancellation did not exist. Thus, until the prescribed time for responding under s 121(2) expired, it would have been apparent to the delegate, or it should have been, that it was more than usually important for the delegate to be as certain as reasonably possible that the proposed ground of cancellation existed, and thus for the delegate to be as certain as reasonably possible that the plaintiff was not in fact enrolled at the University.
51As already mentioned, there was nothing in the relevant legislation that provided that PRISMS was to be treated as a conclusive record of enrolment. Hence, one obvious way of ensuring, or at least being more certain, that the plaintiff had ceased to be enrolled was to make a telephone inquiry of the University, the direct and authoritative source of confirmation of the plaintiff’s enrolment, just as the delegate had done on 20 February 2014 to check the plaintiff’s address. Given the criticality of the fact that the plaintiff was enrolled at the University, the relative ease with which that fact could have been ascertained, the obviousness of the means of doing so – by picking up the telephone and requesting the University to check whether the plaintiff’s enrolment status as shown in PRISMS was in fact correct – and the clear link between the delegate’s failure to make that inquiry and the delegate’s determination to cancel the visa, I consider this to be a case in which the delegate’s failure amounted to a constructive failure to exercise jurisdiction and therefore a jurisdictional error.
The applicant also relied on the decision of Kenny J in Le. In that case, the Tribunal affirmed a decision to refuse to grant the applicant a spouse visa. Critical to that decision were the apparent inconsistencies in an account given by the applicant’s sponsor of the relationship between him and the applicant and the withdrawal of his sponsorship of her (which was later retracted). The inconsistencies were shown partly to have arisen from mistranslation, of which the Tribunal was aware, and the sponsor said that he had been pressured by Departmental officers to withdraw his sponsorship. Kenny J found that, in all the circumstances, the case was one of the rare and exceptional cases where it was unreasonable for the Tribunal not to have made an inquiry of those officers about the way in which the sponsor was interviewed. Her Honour noted, at [78], that those inquiries were about issues that were “plainly critical to the outcome of the Tribunal’s review.”
It can be seen that both Wei and Le essentially involved the opportunity to address issues that were ultimately determinative of the decision under review. There are other cases dealing with the failure of a decision maker to exercise an available power that also turned on the opportunity to be heard: Kaur v Minister for Immigration & Border Protection (2014) 236 FCR 393; [2014] FCA 915 and BMF16 v Minister for Immigration & Border Protection [2016] FCA 1530. The first of those cases dealt with the question through the lens of unreasonableness and the second case addressed it by reference to both unreasonableness and the less specific notion of a “failure to inquire”. The applicant here relied on both analyses, although his submissions did not in fact make any real distinction between them.
It must be kept in mind that the Court’s task is simply to determine whether the Tribunal fell into jurisdictional error. Although it might assist that task to have regard to various verbal formulae that have been found to describe jurisdictional error, it can be misleading to undertake the task solely by reference to those descriptions. In Minister for Immigration & Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28 the Full Court of the Federal Court explained, in connection with the principles of unreasonableness:
[65] … The expressions that have been utilised include decisions which are “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”. It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a “checklist” exercise: Singh at [42]. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.
(Emphasis in original)
Here, the Tribunal’s task was to “review” the decision of the delegate: s.414 of the Act. In doing so, it was required to conduct the proceedings in a way that was fair and just (s.422B(3)) and to act according to substantial justice and the merits of the case: s.420(b).
In order to determine whether it was open to the Tribunal to make a decision in that framework without exercising its power to obtain Dr Gupta’s report of 5 May 2017, it is necessary to closely examine the content of that report and to analyse its importance to the reasons for the Tribunal’s decision.
Dr Gupta’s 5 May 2017 report was as follows:
[the applicant] has been a client of Bentley outpatient mental health Clinic since 2/10/2015. He has diagnosis of Schizophrenia. His current treatment include regular antipsychotic medications, 4-6 weekly medical review and case management at Mills street centre that include contact by his case manager, either by home visit or appointment in the clinic.
[the applicant] has also been on antidepressant medications since 10/08/2016, which was commenced due to distressing anxiety and depressive symptoms with suicidal ideations in the context of various psychosocial stressors, including the stress about the outcome of his visa application. At that time, there were risks of self-harm and to contain risks, we had to organize more frequent medical appointments with intensive follow up by case manager.
He has had one admission to Bentley Hospital in Mental Health Ward from 12/08/15 to 03/09/15 due to deterioration in his mental state. At that time patient was psychotic and was posing risks to others and to his reputation. He was initially taken to Armadale hospital by police where he required IV sedation and then was referred to Bentley Hospital. During further assessments by Psychiatrist in inpatient unit at Bentley Hospital, it was noted that stress was one of the main cause of his psychotic relapse.
[the applicant’s] condition is chronic and therefore he will have to continue his treatment for the rest of his life. As long as he continues his treatment and stays away from stress, he stays stable but if he gets noncompliant with medications or expose himself to stressful circumstances, there are potential risks of relapse of psychotic and depressive symptoms.
(Without alteration except that the applicant’s name has been replaced with “the applicant”)
It is apparent that the contents of this report are almost identical to what Dr Gupta had written in the report of August 2016 (see [25] above). While it also referred to the applicant’s admission as an inpatient, the same information about that was in the records produced by the Bentley Clinic in 2015. Indeed, given the lapse of time since that admission, I infer that Dr Gupta had regard to those records for the purpose of preparing the 5 May 2017 report.
The applicant argued that the critical aspect of the 5 May 2017 report that was not in the earlier documents was the direct link between the applicant’s visa outcome and the relapse into psychosis. He argued that this was important because the Tribunal rejected the evidence linking the first Tribunal’s decision and the applicant’s relapse in August 2015. I do not accept those submissions as correct.
First, both Dr Gupta’s letters dated 4 May 2016 (see [22] above) and 22 August 2016 refer to the direct impact that the applicant’s concern about his visa outcome had on his mental health. The relevant connection between the two was that increased stress increased the likelihood of relapse.
Secondly, that point was made clearly in the agent’s 10 May 2017 submissions which summarised Dr Gupta’s letters.
Thirdly, the Tribunal took that evidence into account. It said in respect of Dr Gupta’s August 2016 letter, for instance, at [42]:
… He is increasingly worried about the outcome of his visa application and they have organised more frequent medical appointments with intensive follow-up. The letter indicates that as long as the applicant continues his treatment and stays away from stress he stays stable but if he becomes non-compliant and exposes himself to stressful situations, there is a potential of relapse.
See also [101] of the Tribunal’s reasons.
Fourthly, contrary to the applicant’s submission, the Tribunal did not reject this evidence. Rather, it rejected the submission that the “affirming of the delegate’s decision by the previous Tribunal was the reason for the relapse in the applicant’s mental health”: [103].
There are two further important facts: first, the agent’s submissions summarised the 5 May 2017 report; and secondly, the submissions do not state that the report was enclosed or attached. Those facts are important because they undermine the effect of the agent’s statement that he intended to obtain a further report and to provide it to the Tribunal. They provide an intelligible justification for the Tribunal’s failure to ask for the report because it was reasonable to assume (as was in fact the case) that the submission extracted and highlighted the important aspects of the report. That assumption was reasonable because the agent was an authorised migration agent, was well aware of the importance of the report to the review, and had taken instructions from the applicant as to what arguments would be run and those which would not.
For those reasons, while I accept that it would have been an easy matter for the Tribunal to obtain Dr Gupta’s 5 May 2017 report, its failure to do so did not constitute jurisdictional error. That failure did not deny the applicant any opportunity to advance his case and there was an apparent and intelligible basis for it. Put another way, it was open for the Tribunal, acting in a way that was fair and just and according to substantial justice and the merits of the case not to obtain that report.
The first ground is rejected.
Third ground: “… the AAT failed to conduct a ‘review’ by reasoning that the Applicant would not be denied employment in Sri Lanka because he had not been denied employment in Australia, was irrational or illogical, or was without an intelligible justification”
The applicant claimed that, like other schizophrenic people in Sri Lanka, he would be denied employment opportunities. The Tribunal addressed this claim at [106] – [107] of its reasons (see [40] above). The applicant argues in this ground that the Tribunal fell into error because it dismissed the claim on the basis that the applicant had managed to secure employment in Australia. The error is said to have been that the Tribunal’s reasoning involved the latent factual premise that the respective employment markets in Sri Lanka and Australia were equivalent in terms of their treatment of employees with chronic schizophrenia. The applicant argued that that premise was not only inconsistent with country information concerning discrimination in Sri Lanka, but also because there was no logical basis for it.
The difficulty with this argument is that it misrepresents the Tribunal’s reasoning. The Tribunal approached the claim in an orthodox way by considering what the applicant had been able to do in the past in spite of his mental illness. This was, first, that the applicant had been a successful business man. The importance of this was not that the applicant had a business to return to (the Tribunal accepted that his wife had sold his nets and his licence was cancelled), but rather that he had the capacity to work for himself. That alone supported the conclusion that the applicant would be able to find “some form of employment on his return to Sri Lanka”. The ability to run a business is not impacted upon by discrimination by employers. If there were some other form of discrimination (such as by suppliers or customers – of which there was no evidence), the applicant’s ability to run a business was in spite of that.
Secondly, the applicant had been able to “gain and hold employment in Australia despite having limited English language skills”. This fact was not addressed to the element in the claim that the applicant would be discriminated against so much as the applicant’s skill level: the reference to language ability and skill would not make sense otherwise. Nevertheless, the applicant’s ability to find, and keep work, was logically probative of the conclusion that he could find some kind of employment in Sri Lanka just as his inability to undertake work in Australia because of his mental health would have supported the applicant’s claim about the prospects of future employment.
When the Tribunal’s reasons are properly understood, they did not involve any illogicality, let alone any “extreme” illogicality: CQG15 v Minister for Immigration & Border Protection (2016) 70 AAR 413 at [60]; [2016] FCAFC 146, Minister for Immigration & Border Protection v SZUXN (2016) 69 AAR 210; [2016] FCA 516 at [52]; Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148]; [2013] FCA 317.
The third ground is rejected.
Conclusion
There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 3 May 2018
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