CVK22 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 640

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CVK22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 640

File number(s):

SYG 1236 of 2022

Judgment of:

JUDGE LAING

Date of judgment:

24 July 2023

Catchwords:

MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal erred by misunderstanding and/or misapplying s.5J(5)(e) of the Migration Act 1958 (Cth) – application dismissed

Legislation:

Migration Act 1958 (Cth) ss.5H, 5J, 36(2)(a)

Cases cited:

EGJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1072

Minister for Immigration and Border Protection v WZAPN [2015] HCA 22; (2015) 254 CLR 610

Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737

SZIGC v Minister for Immigration and Citizenship [2007] FCA 1725

Division:

Division 2 General Federal Law

Number of paragraphs:

26

Date of hearing:

17 July 2023

Place:

Sydney

Counsel for the Applicant:

Ms M Yu

Solicitor for the Applicant:

Human Rights for All Pty Ltd

Counsel for the First Respondent:

Ms J McKenzie

Second Respondent:

Submitting appearance, save as to costs

Solicitor for the Respondents:

Australian Government Solicitor

ORDERS

SYG 1236 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CVK22

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE LAING
DATE OF ORDER:	24 JULY 2023

THE COURT ORDERS THAT:

1.The application be dismissed.

AND THE COURT NOTES THAT:

A.These Orders have been amended pursuant to rule 17.05(2)(e) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.

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:

1. Before the Court is an application for judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa).

   BACKGROUND

2. The applicant is a citizen of Sierra Leone, who fled to Guinea during the civil war. He arrived in Australia in 2009 as a dependent on his mother’s Women at Risk (Subclass 204) visa. The applicant’s visa was cancelled in 2015. Attempts at revocation of the cancellation were ultimately unsuccessful.

3. On 22 March 2022, the applicant applied for a protection visa.

4. On 11 April 2022, the Delegate refused the application. The applicant applied to the Tribunal for review of the Delegate’s decision on 19 April 2022.

5. On 14 July 2022, the Tribunal affirmed the Delegate’s decision.

   THE TRIBUNAL’S DECISION

6. The Tribunal summarised the background to the matter, the applicant’s claims and the Delegate’s decision at [1]-[27] of its decision. It then summarised the relevant criteria for the visa at [28]-[37] before assessing the applicant’s claims at [38]-[98].

7. The Tribunal accepted that the applicant’s father was a policeman who was killed in Sierra Leone. It found that this was most likely by rebels during the civil war, however the Tribunal accepted that it was possible that he had been killed by government forces as a suspected or actual sympathiser. The Tribunal observed that hostilities had ceased in Sierra Leone in 2002 and that this peace was demonstrated, inter alia, by the cessation of refugee status by the UNHCR in 2008. Having regard to this and other country information, the Tribunal did not accept that the government or community would seek to harm someone in the applicant’s position, who left Sierra Leone 22 years ago when he was around 8 years old. The Tribunal was not satisfied that the applicant would face a real chance of relevant harm from the government or local community on account of his relationship with his father. The Tribunal found that the applicant would not be at risk of harm on account of any imputed political view due to this association (at [44]-[56]).  

8. The Tribunal observed that the applicant had claimed to fear “secret killings”. The Tribunal was not satisfied, however, that the applicant would be at risk of being killed due to his father’s role as a police officer or because his father was an actual or alleged collaborator with the rebels. Whilst the Tribunal accepted that there were reports of protesters been killed in Sierra Leone, it found that there was no indication that the applicant held political views regarding affairs in Sierra Leone. The Tribunal accordingly found that there was no more than a remote chance of the applicant being harmed due to police methods in controlling protests (at [57]-[60]).  

9. The Tribunal’s reasoning regarding the applicant’s mental health claims are the focus of the sole ground raised in these proceedings. It is therefore appropriate to set it out fulsomely. At [61]-[70], the Tribunal summarised the evidence before it regarding the applicant’s mental health claims as follows (footnote omitted):

   61. The applicant claims to fear harm because of his mental health, and because treatment for his mental health is not available in Sierra Leone.

   62. The applicant suffered trauma in leaving Sierra Leone during the civil war and fleeing to Guinea. He said he remembers asking for his father in Sierra Leone, and no-one would tell him what had happened. He recalls running from place to place and seeing people killed.

   63. The applicant provided health records from the International Health and Medical Services (IMHS), the service that provides health services to people in immigration detention.

   64. Mental health screening conducted on 10 June 2015 states he witnessed his father being killed and that his younger sister was killed. The applicant reported he had counselling in jail but declined further counselling in immigration detention. It notes he finds mirtazapine helpful.

   65. The applicant had 2 sessions with a psychologist on 26 October 2017 and 3 November 2017, at which he was reported to have been prescribed mirtazapine but had never taken it as he is not a strong believer in medication other than for his back pain and only when necessary. The psychologist reports working with the applicant on mood regulation and stabilisation, which was progressing well. On 5 July 2017 he attended a medical appointment requesting medication for insomnia. After it was refused because he had not taken it previously when it was prescribed, he became agitated.

   66. The applicant was assessed by a psychiatrist on 11 August 2018. The assessment was that the applicant has longstanding chronic post-trauma symptoms which are currently subthreshold for post-traumatic stress disorder (PTSD). The degree of hypervigilance to threat is longstanding. He was reported to have no mood, anxiety or psychotic disorder currently and was reportedly comfortable with prolonged detention. The assessment did not appear to have a mental illness that is worsened by detention. It is recorded that no medication is required, and that routine monitoring of mental state is required.

   67. On 14 August 2018, the applicant is recorded as requesting referral to Foundation House after encouragement from SERCO officers. Foundation House offers counselling to people who have suffered torture or trauma.¹³ It is recorded that while he is coping with memories of the trauma he experienced in Sierra Leone, he has found it more difficult the longer he is in detention and the more likely it is that he will be returned to Sierra Leone. It states he is aware of how to engage with the mental health team.

   68. On 28 December 2020 it is recorded that STTARS (Survivors of Torture and Trauma Rehabilitation Service) requested a telephone number for the applicant for a counselling session. The applicant is reported as saying he is not eating much and often has poor sleep. He was observed to be slightly dishevelled in appearance and had limited engagement with the mental health nurse, but no other concerns were voiced.

   69. A GP consultation on 3 March 2021 reports that the applicant was complaining of tiredness and insomnia as the mirtazapine had stopped, and that he used to take mirtazapine for depression and insomnia. Mirtazapine was restarted and he was advised to take it regularly every night. Poor compliance with mirtazapine is noted on 15 July 2021, and on 19 July 2021 he is recorded as stating he would like to take it only when he needs it.

   70. At the hearing, the applicant spoke of 2 friends in detention who had taken their own lives, and another friend who he said had been returned to Sudan and was killed. He said the counsellors only speak to him by phone, and that he is taking his medication now. He said if he does not take his medication he is unable to sleep.

10. At [71]-[75], the Tribunal reasoned:

    71. The Tribunal does not doubt the applicant has suffered trauma in his early years due to the civil war in Sierra Leone, fleeing to Guinea, and living in a refugee camp for approximately 10 years. He says he has friends who have taken their own lives in detention and another who was killed on his return to Sudan.

    72. His reported symptoms are insomnia, depression and hypervigilance. He is not noted to have symptoms that would bring him to the attention of others in the community. He is reported not to take, or take infrequently, the medication that was prescribed for him.

    73. The Tribunal accepts the applicant would have a limited ability to access mental health services in Sierra Leone, and that return to Sierra Leone will exacerbate his insomnia, depression and hypervigilance. It is not satisfied he would suffer a real chance of serious harm or a real risk of significant harm from others due to these symptoms.

    74. The Tribunal is not satisfied that he would not be able to work or function if he did not have medication, as he is reported to have not taken this medication or has only taken it intermittently. His claims to be taking his medication regularly now are at odds with a lengthy history of not taking the medication or taking it intermittently. The Tribunal accepts that he had complained of difficulty sleeping over a long period of time but has not routinely taken medication for this condition even when it was available to him.

    75. The Tribunal finds that the applicant does not face a real risk of serious or significant harm if he returns to Sierra Leone due to his mental health.

11. The Tribunal considered whether the applicant may face harm as a returnee from Australia. The Tribunal observed that the applicant had arrived in Australia in 2009 and had been in Australia for nearly 13 years, although he had been in prison or immigration detention for the majority of his time in Australia (at [76]). The Tribunal accepted that the applicant was anxious and fearful about returning to Sierra Leone and may be perceived to be wealthy when he is not. The Tribunal observed, however, that Sierra Leone had issued a National Migration Policy in 2002, which identified policy strategies for reintegration including psycho-social services to address trauma related needs such as PTSD. The Tribunal considered that this indicated that the government was trying to encourage return migration and was putting in place strategies to assist returnees. The Tribunal nonetheless accepted that the applicant may experience hardship and negative perceptions on return. The Tribunal did not accept that this would amount to serious or significant harm. The Tribunal also rejected that the applicant would be kidnapped or killed, having regard to the lack of information before it regarding targeted attacks or violence against returnees (at [77]-[83]). 

12. The Tribunal did not consider that there was any real risk that the applicant may be tried again for his offences in Australia and imprisoned in Sierra Leone (at [84]). The Tribunal did not accept that the applicant would have no family support in Sierra Leone, noting his mother’s evidence that his grandmother lived there (at [85]-[87]). The Tribunal considered that the applicant would be among many in Sierra Leone who had returned there after being displaced and spending lengthy periods of time in Guinea (at [88]-[89]).

13. The Tribunal considered the cumulative effect of the applicant’s claims at [91]-[93] as follows:

    91. The Tribunal must consider the cumulative effect of the claims raised by an applicant. This is another way of stating that the Tribunal must consider all of the attributes of a person and decide if this person with all their attributes faces a real chance of serious harm or a real risk of significant harm.

    92. In drawing from the findings made above, the applicant is male and in his 30s. His father was a police officer who was killed in the civil war, either because he was a government worker or because he was a police officer alleged to have, or who actually had, collaborated with the rebels. The applicant has not lived in Sierra Leone since he was a child, and lived in Guinea for approximately 10 years before coming to Australia. His grandmother lives in Sierra Leone and he has some family support. He has some difficulty with his mental health, but not to the extent that he requires continuous medication or exhibits bizarre behaviour. He will be returning after 13 years in Australia and may be perceived to be wealthy and face a negative perception in the community.

    93. The Tribunal has considered the circumstances of the applicant and is not satisfied there would be a real chance he would suffer serious harm or a real risk he would suffer significant harm if he were to return to Sierra Leone. This is not to imply life will not be very difficult for him as the standard of living in Sierra Leone is significantly lower than in Australia.

14. Having regard to the above, the Tribunal concluded that the applicant was not a person to whom protection obligations were owed under the Migration Act 1958 (Cth) (Act). Accordingly, the Tribunal affirmed the Delegate’s decision (at [94] to [98]).

    THE CURRENT PROCEEDINGS

15. The applicant commenced the current proceedings by application filed on 15 August 2022. He ultimately relied upon an amended application filed on 4 April 2023 containing the following sole ground: 

    1.The Second Respondent (the Tribunal) erred by misunderstanding and/or misapplying s.5J(5)(e) of the Migration Act 1958 (Cth) (the Act).

    Particulars

    (a) At [66] of its reasons for decision, the Tribunal found that the Applicant had been assessed by a psychiatrist, who found that among other things, the Applicant had longstanding chronic post trauma symptoms which were currently sub-threshold for post-traumatic stress disorder.

    (b) At [73] the Tribunal accepted that the Applicant would have a limited ability to access mental health services in Sierra Leone and that return to Sierra Leone would exacerbate his insomnia, depression and hypervigilance, but was not satisfied that he would suffer a real chance of serious harm due to these symptoms.

    (c) In making the findings referred to above at (a)-(b) and arriving at the conclusion that the Applicant would not suffer a real chance of serious harm in the manner it did at [73], the Tribunal failed to turn its mind to whether the exacerbation of the Applicant’s mental health conditions by reason of his return to Sierra Leone and/or being unable to readily access mental health services in Sierra Leone constituted serious harm in accordance with s.5J(5)(e) of the Act.

    (d) The matters referred to above at (a)-(c) were material to the outcome of the Tribunal’s decision to affirm the refusal of the Applicant’s protection visa. Consequently the Tribunal’s decision was affected by jurisdictional error.

16. For the Tribunal to be satisfied that the applicant met the criteria for protection under s 36(2)(a) of the Act, it needed to be satisfied that the applicant was a “refugee” as defined in s 5H of the Act including that the applicant had a “well-founded fear of persecution”. This concept was defined in s 5J of the Act, which relevantly provided:

    5J  Meaning of well‑founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well‑founded fear of persecution if:

    (a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)the real chance of persecution relates to all areas of a receiving country…

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)the persecution must involve serious harm to the person; and

    (c)the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)a threat to the person’s life or liberty;

    (b)significant physical harassment of the person;

    (c)significant physical ill‑treatment of the person;

    (d)significant economic hardship that threatens the person’s capacity to subsist;

    (e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist….

17. The applicant submitted that the Tribunal’s reasoning reflected a lack of understanding as to the terms and application of s 5J of the Act and, in particular, subsections (4)(b) and (5)(e), for the following reasons:

    (a)Firstly, the applicant’s fear of harm on return to Sierra Leone due to the lack of access to mental health services “on its face” met the requirements of s 5J(4) of the Act. The applicant submitted that it may be “readily inferred” from the Tribunal’s reasoning that the Tribunal considered the absence of mental health services in Sierra Leone to be the essential and significant reason for the applicant’s fear of persecution and that this was so for systematic and discriminatory reasons.

    (b)Secondly, that the harm the applicant would suffer because of the lack of access “on its face” amounted to a denial of basis services which, on the applicant’s claims, threatened his capacity to subsist. In this regard, the applicant relied upon EGJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1072 at [25]-[26], in which it was suggested that serious harm “might arise where a depressive person is denied treatment for that condition”, notwithstanding their business and employment activities.  

    (c)Thirdly, the fact that the applicant’s mental ill health would not necessarily bring him to the adverse attention of others (as referred to in [72] of the Tribunal’s reasons) did not mean that the lack of treatment for the applicant’s mental ill health fell outside the definition of serious harm per s 5J(5)(e) of the Act. For the Tribunal to have ignored this aspect of the definition, or applied an unwarranted gloss on the definition, was submitted to have amounted to jurisdictional error. Such error was submitted to be material: Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737 at [1]-[2], [30] and [32].

1. There are two main difficulties with the above arguments.

2. Firstly, I do not accept that it can be “readily inferred” that the Tribunal considered that the absence of mental health services in Sierra Leone was for systematic and discriminatory reasons. The Tribunal did not reason in this manner. It is not apparent from my reading of the materials that any claim to this effect was made, or even that there was material before the Tribunal that may have supported a conclusion to that effect. The limited country information in this regard that was cited by the Tribunal indicated that psycho-social services to address trauma related needs such as PTSD had been a priority for the government, at least at the time that it developed its National Migration Policy. However, the Tribunal accepted that the applicant may face difficulties because of a generally lower standard of living. This information did not, on the face of it, indicate that limitations in service provision for mental health conditions influenced by trauma were on account of “systematic and discriminatory conduct”.

3. Secondly, I do not accept that it has been demonstrated that the Tribunal’s reasoning reveals any relevant misunderstanding or misapplication of the test in s 5J(5)(e) of the Act. The Tribunal considered the extent of the applicant’s mental health condition and treatment needs in some detail at [61]-[75] and [92] of its decision. The Tribunal accepted that the applicant experienced some mental health issues. However, it did not accept that his treatment needs were to the extent that he had claimed at hearing, having regard to limitations in his engagement with such treatment in Australia. Although the Tribunal accepted that the applicant’s symptoms may be exacerbated in Sierra Leone, it was not satisfied that he would face a real chance of serious harm from others due to his symptoms. Nor was the Tribunal satisfied that the applicant would otherwise face a real chance of serious or significant harm in Sierra Leone due to his mental health, having regard to the applicant’s medical records which it had considered in some detail at [61]-[69] of its decision. By reference to those records, the Tribunal was not satisfied that the applicant would be unable to work “or function” in Sierra Leone, even if he were unable to access medication for treatment of his condition. This was having regard to evidence indicating that the applicant had previously not taken his medication, or taken it intermittently, even when it had been available to him. It was also having regard to the applicant’s history of other treatment, which was considered at [61]-[70] of its decision.  

4. The above reasoning did not depend upon any misunderstanding or “gloss” placed by the Tribunal upon the definition of serious harm in s 5J(5)(e) of the Act. It was not limited to the question of medication, although this understandably was a focus of the Tribunal’s reasoning. The Tribunal did not confine its reasoning to its finding that the applicant’s mental health condition would not bring him to the adverse attention of others. The Tribunal’s reasoning went beyond this and encompassed an evaluation of the applicant’s ability to work or function generally in Sierra Leone, in circumstances where the potential for exacerbation of his conditions and limitations in his ability to access treatment had been recognised. These were matters capable of informing the Tribunal’s conclusions regarding s 5J of the Act and specifically s 5J(5)(e).

5. That subsection required consideration of whether the claimed threat to the applicant’s “capacity to subsist” was such that it challenged the applicant’s ability “to continue to exist or remain in being”: SZIGC v Minister for Immigration and Citizenship [2007] FCA 1725 at [23] per Greenwood J. I do not accept the applicant’s submission, made at the hearing, that his Honour’s reasoning in this regard ought to be confined to the concept of economic hardship. Rather, his Honour’s reasoning in this respect appears to have been directed towards the concept of “capacity to subsist”. This is a necessary element common to s 5J(5)(d), (e) and (f) of the Act (in their present forms).

6. Regardless, it is apparent from the Tribunal’s reasoning that the Tribunal was not satisfied that any exacerbation of the applicant’s mental conditions due to his limited ability to access mental health services would be such that it threatened the applicant’s “capacity to subsist”, or would otherwise result in a real chance of serious harm. This involved a qualitative assessment, that was for the Tribunal to make: see Minister for Immigration and Border Protection v WZAPN [2015] HCA 22; (2015) 254 CLR 610 at [5] per French CJ, Kiefel J (as her Honour was), Bell and Keane JJ. Whilst the applicant may well disagree with the Tribunal’s assessment, this does not demonstrate that it was relevantly closed to the Tribunal.

7. Having regard to the above, I am not persuaded that the contended error or its materiality have been established. It follows that the sole ground relied upon by the applicant is unable to succeed.

   CONCLUSION

8. For the above reasons, the application before this Court must be dismissed.

9. I will hear from the parties in relation to costs.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.

Associate:

Dated:       24 July 2023