CVR15 v Minister for Immigration
[2018] FCCA 1380
•7 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CVR15 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1380 |
| Catchwords: MIGRATION – Protection visa – original claim of fear of Taliban – harm said to be serious and systematic discriminatory conduct amounting to persecution – claim reformulated as fear of harm grounded on imputed political opinion and as member of particular social group – concerns as to credibility of applicant’s evidence and veracity of claims – evidence of psychologist as to applicant’s post-traumatic stress disorder – application for judicial review – claim to fear persecution anywhere in Pakistan – whether well-founded fear of persecution for Convention reason – whether post-traumatic stress disorder meant relocation not reasonable or practical – whether substantial, clearly articulated argument relying on established facts or probative evidence – whether formulation of argument different from submission raised at Tribunal in course of merits review – whether argument substantial – whether established facts or probative evidence – whether Tribunal failed to consider or misunderstood claim or proceeded on misunderstanding of law – whether finding subsumed in claim of greater generality – whether claim proceeded upon false premise – application dismissed. |
| Legislation: Australian Constitution, s.75 Migration Act 1958 (Cth), ss.4, 5, 5H, 28, 31, 36, 46, 47, 54, 55, 65, 66, 348, 411, 414, 415, 425, 430, 474, 476 |
| Cases cited: AGA16 v Minister for Immigration and Border Protection [2018] FCA 628 Aronson, Groves and Weeks, Judicial Review of Administrative Action in Australia 6th Ed (2017) |
| Applicant: | CVR15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2885 of 2015 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 17 March 2017 |
| Date of Last Submission: | 20 March 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 7 June 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Aleksov |
| Solicitors for the Applicant: | Clothier Anderson & Associates |
| Counsel for the First Respondent: | Mr Petrie |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The amended application be dismissed.
The applicant pay the costs of the first respondent fixed at $7,206.
CONTENTS
Introduction
Background
Procedural history
Protection visa applications – criteria and merits
Relocation
Judicial review
Focus upon Tribunal’s reasons
Ground of review
Erroneous fact finding
Failure to consider integer of claim
Tribunal’s reasons
Consideration
Submissions – reasonableness of relocation
A clearly articulated argument
The substance of the argument
Relying on established facts or probative evidence
Tribunal’s consideration of the claim
Impact of relocation was subsumed in general finding
Factual premise for illness rejected
Gravity of error
Conclusion
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2885 of 2015
| CVR15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As corrected)
Introduction
By an amended application filed on 17 March 2017, judicial review is sought of a decision of the Administrative Appeals Tribunal made on 3 December 2015 affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth) (Act).
The applicant, a Pakistani national aged 30 years, was born in South Waziristan Agency in Wana Ghwakhwa, Pakistan. From 1994 to 2007, the applicant was educated in Deri Ismail Khan (DI Khan).
The Tribunal accepted that the applicant had a well-founded fear of persecution in Waziristan but concluded he was not owed protection obligations by reason that he could reasonably relocate to other parts of Pakistan; in particular, DI Khan or Multan.
The applicant’s challenge to the Tribunal’s decision focused upon the conclusion that the applicant could reasonably relocate.
This is the sixth occasion on which the visa application has been considered since being lodged. I have concluded that the application for judicial review should be dismissed. I have done so, essentially because I consider that the Tribunal was not in error in deciding that it was reasonable, in the sense of practicable, for the applicant to relocate. Concerning the reasonableness and impact of relocation, the opinion evidence of the applicant’s psychologist was that he did not think that the applicant’s condition of post-traumatic stress disorder (PTSD) would ameliorate as a consequence of relocation. The evidence before the Tribunal was not that relocation would worsen his condition. Further, medical services and medication would be available to the applicant. In my opinion, the Tribunal gave active consideration to the claim including the objection to relocation and it was open to the Tribunal on the materials before it to conclude that the applicant did not satisfy the definition of refugee within the meaning of the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees (Convention).
Background
The matter has had a somewhat extended history.
The applicant is the third youngest of eight male siblings. He obtained a Pakistani passport on 6 February 2008. While in Islamabad, the applicant applied for an Australian student visa. On 2 August 2008, the applicant was issued with that visa and on 30 August 2008, he arrived in Australia. In 2008-2009, the applicant undertook a course of study in hospitality. In 2010-2011, the applicant undertook a further course of study in an advanced Diploma of Hospitality.
On 24 November 2011, the applicant completed a protection visa application. On 2 December 2011, the applicant’s migration agent lodged the application. In a covering letter, the agent claimed that the applicant feared persecution from the Taliban. He claimed that: (1) he would be killed or seriously harmed by extremist elements of the Taliban; (2) he had been targeted by those elements, and; (3) Waziristan was notorious for Taliban activity which targeted individuals deemed to be against the Jihad. The agent further stated that:
He claims that the basis of his persecution is due to his opposition to the politics of the Taliban extremists and his opposition to their imposition of fundamentalist religious ideology . . .
He claims he is against the fundamentalist religious views and practices of the Taliban . . . To demonstrate his opposition to the Taliban he joined the Laskar. Moreover he advises that he has rejected the demands forced upon him by the Taliban to join them.
In addition to the above [the applicant] claims that he has been targeted by the Taliban because he has been perceived as a spy for the Americans. . . Moreover villagers in Dera Ismail Khan are blaming the death of family members killed by drone attacks on [the applicant].
My client advises that one of this brothers is still missing and that his family home has been bombed.
[The applicant] claims that he has also suffered persecution because of his western education, attitude and love of western culture. . .
The applicant attached to his visa application a personal statement in which he detailed a number of claims of threats of violence directed toward him by the Taliban. He said that after completing his study he left Australia on 23 January 2011 to see his family and visit his sick father. He arrived in Multan where he was told of his father’s death, some 25 days earlier.[1] Later he travelled to DI Khan to visit family. He stayed there for 15 days and then travelled to Waziristan to see his mother and two of his brothers and to visit his father’s grave. The applicant’s personal statement contended that while he was staying in Waziristan, seven Taliban members were killed during a drone strike which occurred in Azam Warsak, some six kilometres from Waziristan. Following this incident, men whom the applicant believed to be Taliban members came to his mother’s home asking of the applicant’s whereabouts. The applicant and one brother fled the mother’s home, seeking refuge with another brother in DI Khan. Once there, the applicant consulted a doctor for medication for stress. At some point, two letters, each containing a threat to kill the applicant, were left at the home of the brother in DI Khan. Phone calls to similar effect were also made to the brother’s home. The applicant further claimed that one of his brothers had been taken by the Taliban.
[1]In a statement that he gave to the Tribunal, the applicant clarified that his father had passed away 25 days after he had left Pakistan not 25 days before he returned there in 2011: Reasons, [23(h)].
On 2 April 2011, the applicant left Pakistan for Australia. Following his return to Australia, in June 2011 the applicant was told that a further letter had been received from the Taliban and that the brother who had been taken by the Taliban was still missing. Additionally, the applicant claimed that people were attributing blame to the applicant for the drone strike. Following this news, the applicant claimed that he became increasingly stressed and he consulted a psychologist. Further, he claimed that on 2 October 2011 the mud wall of his family home had been bombed as a result of which he became further stressed.
Sections 42-46 of the protection visa application repeated these claims.
On 15 March 2012, a delegate of the Department of Immigration and Citizenship invited the applicant to attend an interview to discuss his visa application and claims for protection. An interpreter was made available for the purposes of that interview. The applicant lodged a number of documents with the Department of Immigration and Citizenship addressing the basis for his claims that he feared harm and persecution if he returned to Pakistan.
The applicant retained lawyers to assist him in his visa application. Those lawyers obtained a report from a psychologist. The report dated 2 May 2012 recorded the applicant’s history including that his father had passed away in 2008. The psychologist opined that the applicant’s safety in Australia was secure but that if he had to return to Pakistan “his future and psychological status would be severely impacted and limited.” The psychologist predicted that the applicant would “suffer severe stress, anxiety and depression if not permitted to remain in Australia on a protection visa” and expressed a belief that if the applicant “were to remain in Australia on a protection visa, that his psychological health will be restored to being relaxed and at ease.”
The applicant’s lawyer furnished a submission, the psychologist’s report and country information for consideration by the Department.
On 20 June 2012, a delegate of the Minister advised the applicant that a decision had been made to refuse his protection visa application.
By its decision record, the delegate identified the applicant’s claims for protection and addressed them in some detail. In an assessment whether Australia owed protection obligations to the applicant under the Convention, the delegate found as follows:
(a)the essential and significant reasons for the harm feared by the applicant were the Convention grounds of the applicant’s imputed political opinion and his membership of a particular social group;
(b)the type of harm feared by the applicant involved serious harm and systematic discriminatory conduct amounting to persecution;
(c)concerns were expressed about the applicant’s credibility and the veracity of the documents which he had submitted;
(d)the delegate was not satisfied that the applicant had a real chance of being persecuted for a Convention reason and found that the applicant’s fear of persecution was not well-founded;
(e)on the available information and given discrepancies and the implausibility of aspects of the applicant’s claims, the delegate was not satisfied that there was a real chance that the applicant would face significant harm should he be returned to Pakistan;
(f)the delegate was unable to be satisfied that the applicant had a genuine or well-founded fear of persecution for any Convention reason, whether now or in the reasonably foreseeable future;
(g)the delegate attached significance to the applicant having resided in Australia for some years before applying for protection and having done so only after exhausting all other visa avenues;
(h)the delegate was not satisfied that Australia owed protection obligations to the applicant under the Convention.
On 13 July 2012, the applicant applied, with the assistance of his lawyers, to the then Refugee Review Tribunal for a merits review of the delegate’s decision.
On 23 October 2012, the applicant was invited to appear before the Tribunal on 16 November 2012, and did so with the assistance of an interpreter. The applicant’s lawyer again filed submissions and documentary evidence, including the psychologist’s report. The applicant’s lawyer appeared at that hearing and was provided with a copy of the audio recording of the hearing on that date.
On 27 November 2012, the applicant’s lawyer furnished the Tribunal with a copy of a recent statement from the Asian Human Rights Commission containing country information respecting violence in Pakistan. On 3 December 2012, the applicant’s lawyer furnished the Tribunal with further country information.
On 11 February 2013, the applicant’s lawyer sent the Tribunal an email stating that one of the applicants brother’s had been killed in Pakistan and that this had exacerbated the applicant’s fear of harm.
The applicant’s treating doctor prepared a report dated 15 February 2013 recording his opinion as to the impact upon the applicant of the recent news of his brother’s death. The doctor expressed an opinion that the threat of “his refugee status being rejected by the Australian Government and being sent back to Waziristan has compounded his fragile mental state.” The doctor furnished a mental health plan assessment for the applicant.
On 21 February 2013, the Tribunal determined that having considered the material before it, the Tribunal was unable to make a favourable decision on the available information. The Tribunal invited the applicant to appear at a hearing on 20 March 2013. At that hearing, the applicant was again assisted by his lawyer and an interpreter.
On 14 June 2013, the applicant’s lawyer was suspended from practising as a migration agent. On 11 September 2013, a new firm of lawyers notified the Tribunal that they had been appointed to act on the applicant’s behalf. However, it appears that the applicant’s original lawyer thereafter communicated with the Tribunal indicating, amongst other things that the applicant had reappointed him as his representative and that the applicant desired to continue with a freedom of information request for all documents held by the Tribunal in relation to the protection visa application.
On 18 October 2013, a further medical report was prepared by a hospital psychiatric registrar who made a diagnosis of PTSD with anxiety and depression. The registrar recorded that the applicant’s condition had relapsed on the recent news of the death of his brother, coupled with normal grief that exacerbated his mood and anxiety. The registrar considered the applicant’s risks as “moderate vulnerabilities – due to his cultural isolation and mental state.”
On 28 October 2013, the Tribunal made a decision affirming the delegate’s decision to refuse the applicant a protection visa.
On 22 November 2013, the applicant sought judicial review of this Tribunal’s decision. By contentions of fact and law dated 4 August 2014, the applicant sought leave to amend the application so as to reduce the challenge to a single ground of review.[2] The applicant claimed that the decision had been made without jurisdiction as the Tribunal had been on notice of but had not inquired, or not inquired sufficiently, into the applicant’s capacity to participate in the hearing before it such that the applicant had not had a real opportunity to be heard: see sub-s 425(1).[3]
[2]Counsel for the applicant being the same counsel as appeared in the present hearing.
[3]In making that contention the applicant accepted that the mere possibility that a Tribunal, had it been aware of the applicant’s mental state, may have formed different conclusions about the applicant’s credibility, was not sufficient to establish a contravention of s 425: citing Minister for Immigration and Citizenship v SZNCR [2011] FCA 369, [33] (Tracey J); special leave to appeal refused: [2012] HCASL 26.
On 13 August 2014, orders were made, by consent, that the decision of the Tribunal made on 28 October 2013 be set aside. The matter was remitted for reconsideration by the Tribunal.
On the remitted application for merits review, the applicant was represented by his lawyers. The applicant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. On 2 April 2015, the applicant’s lawyers lodged with the second Tribunal a statutory declaration made by the applicant, together with a report dated 23 March 2015 from the applicant’s treating psychologist, Dr Pastore. This report recorded that the applicant had attended nine sessions for treatment commencing on 20 November 2014 and that the results of a PTSD checklist test indicated as follows:
[The applicant] is suffering from Stress levels in the severe range, Anxiety in the extremely severe range and Depression in the extremely severe range.
The report of Dr Pastore, a clinical and forensic psychologist, recorded the history which he had obtained from the applicant (incorporating those which had been recorded by earlier psychologists and registrar). Dr Pastore accepted that he was in no position to verify the applicant’s accounts and stated his opinion, which is set out at [215] below.
The applicant’s lawyers prepared a submission dated 6 April 2015 which distilled all of the materials on which the applicant had relied to that point. As might be expected, those submissions included the author’s conclusions as to how those materials established the grounds for the applicant’s claims including the author’s interpretation of Dr Pastore’s report and as to the applicant’s mental condition.
On 8 April 2015, the applicant attended a hearing of the second Tribunal together with his legal representative, assisted by an interpreter.
On 22 April 2015, the applicant’s lawyers requested an extension of time within which to finalise and provide further submissions. The request for an extension of time was granted. On 1 May 2015, the applicant’s lawyers sent the second Tribunal a further detailed submission which addressed the following topics:
(a)vulnerable persons guidelines on credibility;
(b)security situation in South Waziristan;
(c)whether DI Khan may be a suitable alternative home region;
(d)possible relocation to Multan, or other areas of the Punjab.
On 10 November 2015, the applicant’s lawyers furnished another submission to the second Tribunal which addressed recent country information. The applicant’s lawyers also provided an additional psychologist’s report dated 17 October 2015.
On 4 December 2015, the second Tribunal notified the applicant of its decision to affirm the delegate’s decision refusing the visa application. It is from this decision that the applicant seeks judicial review. The second Tribunal prepared a written statement of its reasons for the decision (Reasons): see s 430.
Procedural history
On 31 December 2015, the applicant lodged an application for judicial review of the second Tribunal’s decision made on 3 December 2015. A single ground of review was advanced in that application and was refined by particulars; however, this ground and those particulars were abandoned shortly before the hearing.
The applicant affirmed an affidavit in support of the application reciting a bare outline of the procedural history and exhibiting a copy of the second Tribunal’s decision. No further evidence was adduced by this affidavit in relation to the matters which are the subject of the application.
In the period 7 June 2016 to 17 March 2017, a series of orders were made regulating the interlocutory conduct of the application.
At the hearing, the applicant sought and obtained leave to file an amended application. I address the ground of review at [104] below.
The Minister’s response opposed the grant of relief.
Protection visa applications – criteria and merits
The operative provisions of the Act as concerns the present visa application (that was made on 2 December 2011), are located in a compilation of the Act prepared on 8 November 2011.
The object[4] of the Act is to regulate in the national interest the coming into and presence in Australia of non-citizens.[5] Advancement of that object is to be achieved by the Act providing for the issue or refusal of visas to non-citizens to enter or remain in Australia.[6]
[4] s 4(1).
[5] For the purposes of the Act, a non-citizen is a person who is not an Australian citizen: s 5.
[6] s 4(2).
The regulation of visas for non-citizens is addressed by Part 2, Div 3 of the Act, which comprised ss 28-140. By para 28(1)(a), the Minister was authorised to grant a non-citizen a visa to remain in Australia. Classes of visa created by the Act included temporary and permanent protection visas: ss 31, 36.
Some of the criteria for protection visas were those set out in s 36. While s 36 of the Act has been amended,[7] at the operative time, a criterion for the grant of a protection visa was expressed in para 36(2)(a) as follows:
[7]See Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth).
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or . . .
Sub-section 36(3) titled Protection Obligations, provided that Australia was not taken to have protection obligations to a non-citizen who had not taken all possible steps to avail him or herself of a right:
. . . to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
However, the removal of protection obligations effected by sub-s 36(3) was qualified by sub-s 36(4) where the non-citizen had a well-founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion. In any of those events, sub-s (3) did not apply “in relation to that country.” See also sub-s 36(5).
The expression “well-founded fear” derives from Article 1A(2) of the Convention which provides that for the purposes of that Convention, the term ‘refugee’ applies to any person who:
. . . owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence . . . is unable or, owing to such fear, is unwilling to return to it.
The Minister has a duty to consider a valid[8] visa application, which duty continues until, amongst other circumstances, the visa application is granted or refused: s 47. The Minister is obliged to have regard to all information that is in a visa application together with other information that is attached or provided with it: see ss 54-55.
[8] See s 46.
Ministerial satisfaction that a visa applicant has fulfilled the criteria prescribed for that visa is both a condition precedent to the exercise of, and a jurisdictional fact upon which the Minister derives authority to grant an application pursuant to s 65: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB;[9] Minister for Immigration and Citizenship v SZMDS.[10] Thus, if the criteria for the grant of a protection visa are satisfied, the Tribunal must grant the application or, if not so satisfied, the visa application must be refused.
[9] (2004) 78 ALJR 992, [37]-[38]
[10] (2010) 240 CLR 611, [40], [102].
Thus, s 65 requires the decision-maker to refuse to issue a visa absent a positive finding that the criteria applicable to the particular visa application are satisfied.[11]
[11]Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
Section 66 imposes a duty on the decision-maker to notify the applicant of the decision and, where the decision made is to refuse the visa application, a duty to provide written reasons as to why the Minister considers that any criterion for the grant of the visa is not met.[12]
[12]It also identifies the scope of the decision-maker’s obligation to inform the applicant of their right to seek a review of the decision: para 66(2)(d).
Part 7 of the Act concerns Review of Part 7-Reviewable Decisions and comprises ss 408-441G. Generally,[13] when a valid application for review is made, a Tribunal must review the delegate’s decision: s 414. Where s 414 is engaged, the Tribunal is under a duty to conduct a review of the delegate’s decision: SZSSC v Minister for Immigration and Border Protection.[14]
[13]By sub-s 414(2), a Tribunal is proscribed from conducting a review where, in the national interest, the Minister has issued a conclusive certificate under s 411(3).
[14] [2014] FCA 863, [81(a)] (Griffiths J).
In conducting its review, a Tribunal may exercise all of the powers and discretions that are conferred on the person who made the decision: s 415.The obligation to review is important, if only by reason of the powers which are conferred on the Tribunal for the purposes of conducting the review: SZQVV v Minister for Immigration and Citizenship;[15] Minister for Immigration and Multicultural and Indigenous Affairs v Guder.[16] Relevantly, by exercise of such power, a Tribunal may affirm the decision to refuse a protection visa application. As the Full Court stated in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs:[17]
It is central to the exercise of the dispositive powers conferred by s 415 that the Tribunal has first conducted a review. That is to say it must have considered the application which is the subject of review in light of the information, evidence and arguments which are relevant to the application . . .
[15] [2012] FCA 871, [37] (Greenwood J).
[16] [2018] FCA 626, [36] (Griffiths J).
[17] (2003) 236 FCR 593 at [44].
The review process involves a determination on the merits of whether the applicant has satisfied the criteria for, relevantly, a protection visa. The conduct of such review is a condition of the exercise of power conferred by s 415. A failure to conduct such review vitiates the decision: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2).[18]
[18] (2004) 144 FCR 1, [48].
For those reasons, the obligation to conduct a review of the application on its merits imports an obligation to give proper, genuine and realistic consideration to the application and this incorporates the adoption of an active intellectual process in relation to the matter: He v Minister for Immigration and Border Protection.[19]However, that process of review involves whether the applicant has persuaded[20] the decision-maker that the criteria under s 36(2)(a) are satisfied and this requires the decision-maker to have an actual sense of persuasion which inclines towards assenting to, rather than rejecting, the matters put by the applicant.[21]
[19] [2017] FCAFC 206, [52]; see also Tickner v Chapman (1995) 57 FCR 451, 462 (Black CJ).
[20] Minister for Immigration and Ethnic Affairs v Guo(1997) 191 CLR 559 at 596 (Kirby J).
[21]Plaintiff M64/2015 v Minister for Immigration and Border Protection (2016) 258 CLR 173 at [64] (Gageler J).
In MZZQV v Minister for Immigration,[22] it was submitted that merely recording objections without analysis or resolution did not amount to consideration, and that the Tribunal had ignored the appellant’s objection to relocation and had not dealt with it in even a summary way. Barker J considered that the sole question to be determined was whether the Tribunal had given any or any real consideration to the reasonableness of proposed relocation within Pakistan in light of the appellant’s particular concerns. His Honour concluded at [95] that, while the appellant’s familial support objection to relocation had been made in reasonably broad terms (without further particularisation), the objection had been made but not expressly responded to, or considered by, the Tribunal.
[22] [2015] FCA 533.
Yet in MZAEU v Minister for Immigration and Border Protection,[23] the Full Court, citing MZZQV, concluded that the Tribunal had considered the objection to relocation in a way which reflected the emphasis given to it in the appellant’s submission.
[23] [2016] FCAFC 100 at [37].
In SZVRA v Minister for Immigration and Border Protection,[24] Markovic J held that it was not open to objection that a Tribunal had not confined its consideration of the issues arising on relocation to the appellant’s objections as to why it would not be reasonable for him to relocate. To the contrary:
The Tribunal’s consideration of those objections goes beyond that issue. It engaged in a consideration of whether it would be reasonable, in the sense of it being practicable, for the appellant to relocate . . .
[24] [2017] FCA 121 at [27].
In MZANX v Minister for Immigration and Border Protection,[25] Mortimer J admonished the adoption of a broad-brush approach respecting objections to relocation.
[25] [2017] FCA 307, at [55], [58].
In CSO15 v Minister for Immigration and Border Protection,[26] the Full Court rejected a submission that the Tribunal had failed to take into account the opinion evidence of a psychologist as to the applicant’s low intellectual functioning.
[26] [2018] FCAFC 14, at [58]-[66].
When making a decision[27], a Tribunal is obliged to make a written statement that sets out, in particular, the reasons for the decision, the findings on material questions of fact and the evidence or other material on which the findings of fact were made.[28] Principles defining the scope of the obligations to include in the reasons the findings on material questions of fact and the evidence or other material on which those findings were made inform the consideration of this application.
Relocation
[27] Other than an oral decision: sub-s 430(1), 430D.
[28] Paras 430(1)(b)-(d).
Subjective and objective considerations
To satisfy the Convention definition of refugee, a person’s fear of persecution must be well-founded. The test whether a person’s fear is well-founded engages both subjective and objective considerations: Chan Yee Kin v Minister for Immigration and Ethnic affairs (1989) 169 CLR 379, 389 (Mason CJ), 397-398 (Dawson J), 406-7 (Toohey J), 412-413 (Gaudron J) and 426-431 (McHugh J). Differing approaches to the determination of whether a person had a well-founded fear of persecution have been taken in international jurisprudence.
In Chan Yee Kin, Mason CJ, upon a review of authority, preferred[29] the use of the expression ‘real chance’ as it conveyed more clearly the notion that the chance of persecution was substantial rather than remote. Dawson J agreed,[30] observing that a real chance was one that was not remote, regardless of whether it was less or more than 50%.[31]
[29] (1989) 169 CLR 379 at p. 389.
[30] (1989) 169 CLR 379 at p. 398.
[31] Citing Boughey v The Queen (1986) 161 CLR 10, 21.
Dawson J considered[32] that on any view the phrase “well-founded fear of persecution” embodied both subjective and objective requirements and stated that:
There must be a state or mind – fear of being persecuted – and a basis – well-founded – for that fear. Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear. (Emphasis added)
Dawson J noted the differing emphasis which had been placed upon the subjective and objective elements of the test but considered that the expression ‘well-founded’ must mean something more than plausible:
It is clear enough that the object of the Convention is not to relieve fears which are all in the mind, however understandable, but to facilitate refuge for those who are in need of it.
On the other hand, it is also clear enough that a fear can be well-founded without any certainty, or even probability, that it will be realized. (Emphasis added)
[32] (1989) 169 CLR 379 at p. 397-8.
Toohey J preferred[33] a test formulated by Grahl-Madsen:
But the real test is the assessment of the likelihood of the applicant’s becoming a victim of persecution upon his return to his country of origin. If there is a real chance that he will suffer persecution, that is reason good enough, and his ‘fear’ is well-founded.
His Honour considered this test gave effect to the Convention stating: “[i]t does not weigh the prospects of persecution but, equally, it discounts what is remote and insubstantial.”
[33] (1989) 169 CLR 379 at p. 407.
Gaudron J stated:[34]
. . . a decision-maker should evaluate the mental and emotional state of the applicant and the objective circumstances so far as they are capable of ascertainment, give proper weight to any credible account of those circumstances given by the applicant and reach an honest and reasonable decision by reference to broad principles which are generally accepted within the international community.
[34] (1989) 169 CLR 379 at p. 413.
McHugh J considered that:[35]
Courts, writers and the U.N.H.C.R. Handbook agree, however, that a ‘well-founded fear’ requires an objective examination of the facts to determine whether the fear is justified. But are the facts which are to be examined confined to those which formed the basis of the applicant's fear? In Sivakumaran[36] the House of Lords, correctly in my view, held that the objective facts to be considered are not confined to those which induced the applicant’s fear. The contrary conclusion would mean that a person could have a “well-founded fear” of persecution even though everyone else was aware of facts which destroyed the basis of her fear. (Emphasis added)
Mason CJ agreed in this reasoning.[37]
[35] (1989) 169 CLR 379 at p. 429.
[36] Reg. v. Home Secretary; Ex parte Sivakumaran [1988] AC 958.
[37] (1989) 169 CLR 379 at p. 389.
Chan Yee Kin is a seminal authority which accepts that an applicant’s subjective fear may be genuine but requires that in assessing relocation consideration must be given to whether, objectively, that state of mind is undermined because the fear of persecution is not well-founded.
In Minister for Immigration and Border Protection v MZYTS , the Full Court stated that:[38]
The determination of whether there is an objective basis for the person’s fear is the central part of the predictive or speculative task referred to in Chan and Guo. It can only be undertaken by reference to an assessment of, and findings of fact about, the circumstances in the person’s country of nationality at the time the person is likely to be returned there.
Their Honours drew attention to the manner in which the objective element of the test had been described in S395/2002 v Minister for Immigration and Multicultural Affairs,[39] where Gummow and Hayne JJ held that that element variously required the decision-maker to: (1) decide what may happen if the applicant returned to the country of nationality; (2) pay close consideration to the situation of the particular applicant; (3) identify the relevant Convention reasons that the applicant had for fearing persecution, and; (4) identify the reasons of race, religion, nationality, membership of a particular social group or political opinion that were engaged. Their Honours held that it was often instructive to examine: (a) what had happened to an applicant when living in the country of nationality; (b) how persons like the applicant had been, or were being treated in the applicant’s country of nationality and recognised that:
. . . whatever scheme is devised, classification carries the risk that the individual and distinctive features of a claim are put aside in favour of other, more general features which define the chosen class.
The need to consider the individual and distinctive features of a claim is to be understood in the broader context that decision-makers, confronted with a large number of merits reviews, may inevitably attempt to classify – at the risk of deciding – cases according to type.
[38] (2013) 230 FCR 431, [35].
[39] (2003) 216 CLR 473, [73]-[76].
Relocation – reasonableness
An applicant’s well-founded fear of persecution is to be gauged by whether they can reasonably be expected to relocate within their country of nationality so as to avoid persecution. In Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, Black CJ stated[40] that there was no warrant for construing the Convention definition of ‘refugee’ so that it would give refugee status:
. . . to those who, although having a well-founded fear of persecution in their home region, could nevertheless avail themselves of the real protection of their county of nationality elsewhere within that country.
[40] (1994) 52 FCR 437 at p. 441A-B.
Black CJ held[41] that the question of relocation was to be resolved by a generalised approach but that more specific attention should be given to the individual circumstances presented by the applicant’s claims. His Honour concluded that each of the individual claims presented by the applicant had been dealt with by the decision-maker. Beaumont J likewise considered that relocation principles were conditioned by a requirement of reasonableness.[42] Whitlam J agreed in each judgment.[43]
[41] (1994) 52 FCR 437 at p. 443.
[42] (1994) 52 FCR 437 at 451C.
[43] (1994) 52 FCR 437 at 453C-D.
In Minister for Immigration and Ethnic Affairs v Guo,[44] the Court explained the holding in Chan Yee Kin. Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ held[45] that an applicant seeking refugee status must establish that their stated fear of persecution was well-founded and that this element added an objective requirement to the anterior issue of whether they subjectively held that fear. The plurality described[46] Chan Yee Kin as an important decision because it had established “that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.” Their Honours cautioned that the use of a real chance test in substitution for the Convention definition ‘well-founded’ was to invite error, holding that:
A fear is “well-founded” when there is a real substantial basis for it. . . But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. (Emphasis added)
Likewise, Kirby J held that:[47]
…the mere fact that a person claims fear of persecution . . . does not establish either the genuineness of the asserted fear or that it is “well-founded” . . . It remains for the Minister in the first place to be “satisfied” and, where that decision is adverse and a review is sought, for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out. (Emphasis added)
I do not understand Kirby J to be suggesting that the applicant bears a legal onus but that the basis for the grant of a visa be demonstrated.
[44] (1997) 191 CLR 559.
[45] (1997) 191 CLR 559 at 571.
[46] (1997) 191 CLR 559 at 572.
[47] (1997) 191 CLR 559 at 596.
The reasoning in Guo does not suggest any dilution of the requirement to consider whether a fear of persecution is objectively well-founded or that this requirement ceases to apply at the point where relocation is under consideration. To the contrary, it reinforces the requirement that the substantial basis for a well-founded fear must be ‘real’ and provides a ‘real’ ground for a belief that the applicant is at risk of persecution.
In SZATV v Minister of Immigration and Citizenship,[48] the Court considered the correctness of the internal relocation principle as expounded in Randhawa. Gummow, Hayne and Crennan JJ stated it to be well settled that: [49]
. . . the requirement that the “fear” be “well-founded” added an objective requirement to the examination of the facts and that this examination is not confined to those facts which formed the basis of the fear experienced by the particular applicant.
Their Honours endorsed[50] the reasoning of Lord Bingham of Cornhill in Januzi v Secretary of State for the Home Department[51] that:
. . . a person will be excluded from refugee status if under all the circumstances it would be reasonable to expect him to seek refuge in another part of the same country.
Lord Bingham’s analysis demonstrated that a conclusion excluding a person from refugee status (where it was reasonable for them to relocate) was grounded upon the text of the Convention definition. A person cannot claim to be outside their country of nationality by reason of a well-founded fear where they had chosen to leave their country rather than move to a place of relocation where they would have no well-founded fear of persecution – the person is not, within the Convention definition, a ‘refugee’.[52]
[48] (2007) 233 CLR 18
[49] (2007) 233 CLR 18, [9], [18].
[50] (2007) 233 CLR 18, [22].
[51] [2006] 2 AC 426, 440.
[52] [2006] 2 AC 426, [7]-[8].
Reasonableness of relocation
In relation to the principle that internal relocation was conditioned by a requirement of reasonableness, in SZATV the plurality held[53] that “[w]hat is “reasonable”, in the sense of “practicable”, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation” (emphasis added). Their Honours, however, recognised that relocation may well not be possible, stating:[54]
There may be instances where differential treatment in matters of, for example, race or religion, is encountered in various parts of the one nation state so that in some parts there is insufficient basis for a well-founded fear of persecution. However, in other cases the conduct or attribute of the individual which attracts the apprehended persecution may be insusceptible of a differential assessment based upon matters of regional geography.
[53] (2007) 233 CLR 18, [24].
[54] (2007) 233 CLR 18, [26].
The appeal in SZFDV v Minister for Immigration and Citizenship[55] was heard at the same time as SZATV. Gummow, Hayne and Crennan JJ stated[56] that “as a general proposition to be applied to the circumstances of the particular case, it may be reasonable for the applicant for a protection visa to relocate in the country of nationality to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution.” This reasoning confirms the role of objectivity in the consideration of relocation.
[55] [2007] HCA 41.
[56] [2007] HCA 41, [14].
In Plaintiff M13-2011 v Minister for Immigration and Citizenship, Hayne J repeated those principles as follows:[57]
Consideration may be given to the possibility of a claimant for protection relocating in the country of origin if relocation is a reasonable (in the sense of practicable) response to the fear of persecution. As three members of this Court pointed out in [SZATV], “[w]hat is ‘reasonable’, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality. (Citations omitted)
[57] [2011] HCA 23 at [21].
In MZYTS, the Full Court observed that, commonly, if not uniformly, satisfaction of the criteria for a protection visa turned on the criterion posed by para 36(2)(a); namely, whether the applicant was a non-citizen in Australia in respect of whom Australia owed protection obligations because the person was a refugee.[58] The Court held that:[59]
It is, as the authorities have consistently emphasised, a predictive exercise involving speculation as to circumstances in the future on the basis of material in the present, and what has happened to the person in the past.[60]
Critically to the determination of the issues raised in this appeal, lawful formation of that state of satisfaction (one way or the other) involves, first, a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality and, second, a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well founded.
In those passages, the Full Court identified the settled approach that is required in a merits review on a protection visa application and the tasks that it entailed: see also CSO15.[61]
[58] The definition of refugee was then located in s 5H.
[59] (2013) 230 FCR 431, [33]-[34].
[60]Citing Chan Yee Kin (1989) 169 CLR 379at 391, 432; Guo (1997) 191 CLR 559 at 571-573.
[61] [2018] FCAFC 14, [23].
In Minister for Immigration and Border Protection v SZSCA,[62] French CJ, Hayne, Kiefel and Keane JJ reiterated that the internal relocation principle was well established, declining to reconsider the correctness of the principles as stated in SZATV.[63] Their Honours observed that:[64]
The factum upon which the principle of relocation operates is that there is an area in the visa applicant’s country of nationality where he or she may be safe from harm. In this matter is was found by the Tribunal that Kabul was such a place. By analogy with the internal relocation principle, given the existence of a place within his country of nationality where the respondent would have no well-founded fear of persecution, it could not be concluded that he is outside Afghanistan and unable to return to that country owing to a well-founded fear of persecution if it could reasonably be expected that he remain in Kabul and not travel outside it. As in SZATV, it is the question of what may reasonably be expected of the respondent which must be addressed.[65]
[62] (2014) 254 CLR 317.
[63] (2014) 254 CLR 317, [21]-[24].
[64] (2014) 254 CLR 317, [25].
[65] (2014) 254 CLR 317, [25].
In CSO15, Tracey, Mortimer and Moshinsky JJ rejected a submission that the High Court’s decision in SZSCA marked some entirely new approach to the Art 1 assessment, confirming that the assessment:[66]
. . . requires considerations of reasonableness and practicability to be injected into every decision-making exercise about whether a person has a well-founded fear of persecution . . .
The Full Court cautioned that while identification of the applicant’s ‘home area’ may be of some assistance, the correct question was as to the place to which the applicant would be returned and an assessment of the risks which a person may face if returned to that place:[67]
The correct question is: to where will an applicant return, or be returned? Identifying a place which may have, in the past, been a person’s “home area” or “home region”, may assist in answering that question. But it is not, in and of itself, the answer to the question which must be asked for the statutory task to be lawfully performed. That is because under both Art 1A and the complementary protection regime, what is to be examined is the place to which a person will be returned, and what risks a person faces on return to that place. At least one location within a country of nationality must be identified for this task to be undertaken. Ascertaining a person’s former “home area” or “home region” may be an important step along the way in a decision-maker’s fact finding, but it is not the end of the task. As SZSCA illustrates, once a decision-maker has identified a region or place to which it is likely a person will return, an assessment of the risks a person might face on return to that place or region may, in some factual circumstances, require consideration of what is reasonable and practicable in terms of how that person will live and work in that place. Separately, and distinctly, because it is sourced in a different limb of Art 1A . . , this assessment will invariably be required if the region or place is “new” for the person, and internal relocation (or “internal protection”) principles apply. If it is not a “new” area, then decision-makers will need to remain alive to the factual issues raised in cases such as SZSCA. (Emphasis added)
[66] [2018] FCAFC 14, [39].
[67] [2018] FCAFC 14 at [41]-[42].
The Full Court noted that the decision-maker must assess, on the material before it, the place or places to which an individual is likely to return and that if the applicant was likely to have a well-founded fear or faced a real risk of harm upon return to that place, only then did the Tribunal need to determine whether there were any other places to which the applicant was likely to return and then undertake the same analysis of fear and risk.[68] Tracey, Mortimer and Moshinsky JJ held[69]:
It is only if the place or places to which an individual is likely to return are places in which the person has a well-founded fear of persecution or faces a real risk of significant harm, that a decision-maker must look at any other places in the individual’s country of nationality where neither of those kinds of risks exist. That is: places that are new or unfamiliar locations for the individual. These must be places to where it is reasonable and practicable to expect that individual to re-locate, if that terminology is to be used. It is not simply a matter of a decision-maker finding “a place” where an individual might not be exposed to persecution for a Convention reason, or to the risk of significant harm. At this final step, there must be an assessment of the reasonableness and practicability of the particular individual living in that (new) place, as the authorities have explained that assessment.
The Full Court concluded that the task confronting a Tribunal was fact intensive and dependent upon the applicant’s evidence and narrative as to historical connections to places in their country of nationality. The required analysis as to reasonableness and practicability was informed by the degree of connection to such places; a slim or tenuous connection to a new place informing consideration of the question of how an individual might live in such a region.[70]
[68] [2018] FCAFC 14 at [44]-[46].
[69] [2018] FCAFC 14 at [47].
[70] [2018] FCAFC 14 at [48], [54].
The result in CSO15 is instructive. Upon review of the Tribunal’s reasons, the Full Court recognised that the Tribunal had made an unstated, but reasonable, assumption that the appellant would relocate to a particular area in Pakistan. Upon consideration of the applicant’s credibility and country information, the Tribunal found that the appellant did not have a well-founded fear of persecution in that region and that this “was sufficient to discharge its task”.[71]
[71] [2018] FCAFC 14 at [52]-[53].
In CRI026 v The Republic of Nauru,[72] Kiefel CJ, Gageler and Nettle JJ held that it was not the case that:
. . . just because there may be a real risk of exposure to inhuman or degrading treatment or punishment in one place, or even some places, in a country of nationality, an applicant cannot be returned to some other place in that country in which there is not such a risk and to which it would be reasonable for him or her to relocate.
While the Court accepted the need for reliable information as to the safety and suitability of the place of relocation and of the need to pay careful attention to the applicant’s personal and family circumstances, it accepted that such analysis was not required in every case.[73] Their Honour’s explained that the analysis may not be required where reliable information obviated the need for such analysis. Kiefel CJ, Gageler and Nettle JJ, endorsed Lord Bingham’s statement in Januzi observing that[74] “if by reasonable relocation to that place the person can avoid risk of harm of the [relevant] kind, it should not be seen as a necessary and foreseeable consequence of the person’s refoulement to that place that he or she will be at risk of that kind of harm.”[75]
[72] [2018] HCA 19, at [21].
[73] [2018] HCA 19 at [39]-[40].
[74] [2018] HCA 19 at [43].
[75]See also Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53, [2].
Framework and nature of inquiry
Application of the internal relocation principle depends upon the framework set by an applicant’s particular objections to relocation. Within that framework, the Tribunal is required to determine objectively whether relocation is open, but to conduct that inquiry circumscribed by the applicant’s particular objections: MZYXP v Minister for Immigration and Border Protection.[76] In stating those propositions, Kenny J regarded Randhawa as containing an accepted statement of principle by a Full Court.
[76] [2013] FCA 1352, [61] (Kenny J)
An administrative decision-maker is required to consider each objection that had been raised by the application: Azabo v Minister for Immigration and Border Protection;[77] MZZQV v Minister for Immigration.[78] In Azabo, Finn J re-emphasised[79] that regard must be had to the way in which the applicant had presented the objection to relocation and that “whether it was reasonable to expect the appellant to re-locate. . . required the individual circumstances of his case to be addressed.” Finn J held that the reviewer had dealt with the case which had been put by the appellant and squarely raised by the evidence.[80] And in MZZQV, Barker J, whilst discussing Randhawa, recognised[81] that the decision-maker may not be required to examine an objection with the degree of specificity urged by an applicant.
[77] [2012] FCA 525.
[78] [2015] FCA 533, [50], [68] (Barker J).
[79] [2012] FCA 525 at [29].
[80] Citing NABE 144 FCR 1 at [58]-[63].
[81] [2015] FCA 533 at [50].
However, the scope of the obligation is not confined to the framework set by the applicant’s submissions. In MZANX, Mortimer J held:[82]
. . . the “framework” set by an applicant may be an important factor. . . it is important to recall that the task of the reviewer is to form a state of satisfaction on the basis of all the material before her or him, including what might reasonably be known because of the decision-maker’s experience and expertise, and the material regularly provided to decision-makers for the purposes of making decisions about Australia’s protection obligations. It is, as the courts have said many times, an inquisitorial task, informed by what an applicant puts forward, but not necessarily confined to those matters.
[82] [2017] FCA 307 at [58].
Overview
The reasonableness as applied in an inquiry as to internal relocation is focussed upon whether it is practicable for the applicant to relocate. An assessment of practicability requires that consideration be given to the applicant’s individual circumstances and the impact upon them of relocating to the other place of residence.
While specific objections that are made by an applicant provide a framework within which the Tribunal is to undertake an assessment of the reasonableness of relocation, the Tribunal is not constrained by that framework and may draw upon its experience and other information available to it in deciding upon whether relocation is reasonable.
The inquiry is context specific, fact intensive and focussed upon the personal circumstances of the applicant. It is for the applicant to persuade the decision maker that his or her objection is made out.
Judicial review
Availability
The Minister’s amended response[83] opposed the application for judicial review on the ground that the Tribunal’s decision was not affected by jurisdictional error and was therefore a privative clause decision within the meaning of sub-s 474(2) of the Act. The Minister contended that the application was therefore not open to judicial review.[84]
[83] The amended response pre-dated the amended application for judicial review.
[84] See para 476(2)(b).
Part 8 of the Act concerns the subject Judicial Review and comprises ss 474-484. Division 1 of Part 8 concerns the subject, Privative clause. By sub-s 474(1), a privative clause decision is final and conclusive, incapable of challenge in any Court and is not amenable to prerogative relief: s 474(1). The term Privative clause is defined by s 474(2). Sub-section 474(2) provides that in s 474:
. . . “privative clause decision” means a decision of an administrative character made, or proposed to be made, . . . under this Act or under a regulation or other instrument made under the Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).
Certain decisions are taken not to be Privative clause decisions: sub-s 474(4)-(5). A decision to grant or refuse a protection visa application is a decision of an administrative character made under the Act and Regulations. It is not a decision referred to in sub-s 474(4)-(5).
Division 2 of Part 8 concerns the subject Jurisdiction and Procedure of Courts and comprises ss 474A-484. By s 476(1), the Federal Circuit Court has the same original jurisdiction in relation to a migration decision[85] as the High Court under para 75(v) of the Constitution. The High Court has jurisdiction with respect to all matters in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth. It is accepted that the conferral of jurisdiction to issue such writs implies an incidental or ancillary authority to the effective exercise of that jurisdiction, including the authority to grant certiorari against an officer of the Commonwealth.[86]
[85] The term ‘migration decision’ is defined by s 5 and includes a privative clause decision.
[86]Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82, [13] (Gleeson CJ). Citing R v Cook; Ex parte Twigg (1980) 147 CLR 15 at 33; Glover v Walters (1950) 80 CLR 172 at 174-175.
By sub-s 476(2), the Federal Circuit Court has no jurisdiction in relation to a primary decision[87] and certain privative clause decisions. In particular, the Federal Circuit Court has no jurisdiction to review the decision of a delegate to refuse a protection visa application: sub-s 476(2). Nor does it have jurisdiction in relation to a decision of a Tribunal affirming a delegate’s decision to refuse such an application unless the Tribunal’s decision is affected by jurisdictional error.
[87] The term ‘primary decision’ is defined by sub-s 476(4).
Despite s 474, the Court is authorised by sub-s 476(1) to quash a Tribunal decision which is shown to be affected by jurisdictional error;[88] that is, an error of sufficient gravity such that the decision does not answer the description of ‘decision’ for the purposes of the Act and which is accordingly, not a decision authorised by the Act.
[88]Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [37] (Gleeson CJ); [83] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ); [160] (Callinan J).
On an application for judicial review, the Court is required to determine whether the Tribunal’s decision is affected by jurisdictional error.[89] The exercise of its curial jurisdiction does not “go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power”.[90]
[89] s 476; Plaintiff S157/2002 (2003) 211 CLR 476.
[90]Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 76 (Brennan J); SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [25]; Minister for Immigration and Border Protection v SZSSJ (2017) 259 CLR 180 at [81]; Port of Newcastle Operations Pty Ltd v Australian Competition Tribunal [2017] FCAFC 124 at [161] (Dowsett, Besanko, Middleton, Foster and Griffiths JJ).
Limits on the exercise of administrative power are well settled. In Ibrahim v Minister for Immigration and Citizenship, Jagot J, citing Craig v South Australia,[91] stated:[92]
An administrative decision-maker, such as the Tribunal, has no power to make a decision otherwise than in accordance with law. If an administrative decision-maker “falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it”:
[91] (1995) 184 CLR 163 at 179.
[92] [2009] FCA 1328 at [5].
Earlier, in Minister for Immigration and Multicultural Affairs v Yusuf,[93] McHugh, Gummow and Hayne JJ (Gleeson CJ agreeing), stated that “[n]othing in the Act suggests that the Tribunal is given authority . . . to make a decision otherwise than in accordance with the law.”[94] Their Honours identified well recognised types of error which may constitute jurisdictional error: asking the wrong question, ignoring relevant material, relying upon irrelevant material and in some cases, making an erroneous finding or reaching a mistaken conclusion. The plurality was clear that the list provided was non-exhaustive and that the examples cited may well overlap (particular error being capable of more than one characterisation). Their Honour’s concluded:[95]
What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.
[93] (2001) 206 CLR 323.
[94] (2001) 206 CLR 323 at [82] citing Craig 184 CLR 163 at 179.
[95] (2001) 206 CLR 323 at [82].
Griffiths J writing extra-judicially in Developments in Judicial Review Affecting Migration considered the doctrine of jurisdictional error.[96] In the course of that paper, his Honour considered Kirk v Industrial Relations Commission of New South Wales,[97] describing it as a landmark decision, and observed that Australian constitutional considerations required the maintenance of the distinction between jurisdictional and non-jurisdictional error. The distinction is important in retaining the boundary between those errors that may attract prerogative relief for jurisdictional error and those which will not.
[96] Law Council of Australia Immigration Law Conference 2017.
[97] (2010) 239 CLR 531.
Griffiths J there described the use of ‘jurisdictional error’ as simply expressing the gravity of the error under consideration. His Honour further stated that in Kirk, the Court had recognised that it was neither necessary, nor possible, to attempt to mark out the metes and bounds of jurisdictional error and that Craig v South Australia should not be seen as providing a rigid taxonomy of jurisdictional error.[98] As noted above, this proposition was also stated in Yusuf.
[98](2009) 239 CLR 531 at [66], [71]-[73] (French CJ, Gummow, Hayne, Crennan, Kiefel and Crennan).
Griffiths J further emphasised that the task of identifying jurisdictional error was not at large and that it involved the following steps:[99]
(a)a close analysis of the enabling legislation which purports to authorise the particular administrative action, with a view to determining the true nature of the decision maker’s task and authority and any relevant procedural constrains which apply;
(b)an identification of the alleged error or mistake, whether it involved misconstruction of a legislative provision or some other error, including an error in fact finding;
(c)error identification may be facilitated by an available statement of reasons for the challenged decision. . . ; and
(d)bearing in mind the limits of the judicial review function, ask whether what has gone wrong is of such significance and materiality in the context of the decision-maker’s legislative powers and function that the gravity of the error rises to the height of jurisdictional error. (Emphasis added)
[99]See also Yusuf (2001) 206 CLR 323 at [69] citing Craig 184 CLR 163, 179; Minister for Immigration and Border Protection v SZRKT (2013) 212 FCR 99 (Robertson J).
The question whether an error is jurisdictional “is, and always will be, context-specific”: SZUWX v Minister for Immigration and Border Protection.[100] The Full Court has recently endorsed this statement: SZVDC v Minister for Immigration and Border Protection.[101]
[100] (2016) 238 FCR 456 at [21] (Allsop CJ).
[101] [2018] FCAFC 16 at [34].
Relatedly, it has been observed that the crucial task for the Court is not to assess whether or what it considers to have been the reasonable decision of the Tribunal but to evaluate the quality of the administrative decision: SZSSG v Minister for Immigration and Border Protection.[102]
[102][2018] FCA 670 at [8]-[9] (Allsop CJ) citing SZSSG, [2018] FCA 670, Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [12].
Focus upon Tribunal’s reasons
It may be accepted that the reasons of a decision-maker are usually the principal point of focus in the determination of whether a decision is affected by jurisdictional error: SZBEL.[103] However, as the Court recognised in SZBEL, a Tribunal is not confined by whatever issues were considered by the delegate: see also Guder.[104]
[103] (2006) 228 CLR 152 at [35].
[104] [2018] FCA 626 at [34]-[36] (Griffiths J).
The content of the reasons will be important for a variety of matters, including an assessment of whether: (1) the requirements of s 430 have been met; (2) the Tribunal had a correct understanding of the applicable legal principles; (3) the Tribunal had identified and considered the applicant’s claims; (4) the Tribunal had made findings on material questions of fact; (5) the Tribunal had taken into account an irrelevant consideration or not taken into account a relevant consideration; (6) the decision is tainted by unreasonableness in the relevant sense; (7) any error was of such gravity as to constitute jurisdictional error.[105]
[105]cf Yusuf (2001) 206 CLR 323 at [68]-[69] (McHugh, Gummow and Hayne JJ, Gleeson CJ agreeing), [41] (Gaudron J); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
Ground of review
The original ground of review in the application was replaced by the following ground:
The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction in that the Tribunal failed to deal with an integer of the applicant’s claim in relation to relocation.
Particulars
(a)The applicant claimed in in (sic) submissions to the Tribunal dated 1 May and 6 April 2015 that he was suffering from Post-Traumatic Stress Disorder and that his condition would be exacerbated on return to any region in Pakistan;
(b)The claim was supported by psychologist, Dr Tony Pastore, who provided a report dated 23 March 2015 which was also furnished to the Tribunal;
(c)The Tribunal failed to consider the applicant’s objection to relocation on the basis of his mental health, in assessing whether it was reasonable for him to relocate from his home area or region. (Emphasis added)
The applicant’s submissions advanced this ground of review as exposing jurisdictional error in the decision in a variety of ways. In substance it was said that: (1) the applicant had argued[106] that being returned to a place where he had a subjective fear of harm (whether or not well-founded) may have a debilitating effect upon him; (2) the argument was a clearly articulated argument, and; (3) the Tribunal had failed to consider that argument, and in the alternative, it had misunderstood or misconstrued the argument.
[106] Applicant’s outline of submissions dated 27 February 2017, at [17].
The Minister responded, by way of alternative submissions that: (1) the Tribunal had in fact considered the applicant’s claim; (2) treatment of the objection had been subsumed in findings of greater generality, thereby obviating the need to consider the applicant’s mental condition any further than had occurred, and; (3) the objection proceeded upon a false premise in that the applicant’s claim to suffer PTSD was based upon claims of persecution by the Taliban as supported by various incidents (claims that had been rejected by the Tribunal).
It may be noted that although the applicant had originally grounded the application for judicial review upon claims to fear of persecution by the Taliban, no challenge was made as to the legality of the Tribunal’s findings insofar as it had rejected the applicant’s credibility.
In light of the parties’ submissions, it is convenient to review the principles which inform consideration of whether a decision is affected by jurisdictional error in the manner contended for.
Erroneous fact finding
Approach to inquiry
Amongst the ways in which an administrative decision may be affected by jurisdictional error is where a decision-maker has committed a mistake as to the existence of a jurisdictional fact or a requirement which must exist objectively as a condition precedent to the validity of the decision or has disregarded relevant considerations.[107]
[107]Aronson, Groves and Weeks, Judicial Review of Administrative Action in Australia 6th Ed (2017) at [1.140].
In the consideration whether jurisdictional error is demonstrated, it is settled that a decision-maker’s reasons are not to be scrutinised or construed minutely or with an eye keenly attuned to error: Wu Shan Liang[108]; Applicant WAEE[109]; SZSSC[110]; Plaintiff M64/2015 v Minister for Immigration and Border Protection.[111] To the contrary, in the evaluation whether a decision is affected by jurisdictional error, the reasons should be read fairly and the decision evaluated in the context of the reasons as a whole.
[108] (1996) 185 CLR 259 at 272.
[109] (2003) 236 FCR 593 at [46].
[110] [2014] FCA 863 at [81(h)].
[111] (2015) 258 CLR173 at [25], [59], (French CJ, Bell, Keane and Gordon JJ).
In Wu Shan Liang, Brennan CJ, Toohey, McHugh and Gummow JJ observed[112] that the delegate had started and ended with a correct statement of the relocation test but that the phraseology which had been employed ‘in between’ had slipped from a discussion of a real chance test to a test grounded upon the balance of probabilities. The Court reversed the Full Court’s decision and the delegate’s decision refusing a protection visa application remained. The error was immaterial.
[112] (1996) 185 CLR 259 at 271.
In Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen, McHugh J held[113] that “Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision” and that “[d]isagreement with a finding of fact or the reasoning process used to find it is usually a slender ground for concluding that a tribunal misconceived its duty.” Ex parte Cohen there was an application for an injunction and order nisi writs. The application was refused.
[113] (2001) 177 ALR 473 at 481 at [35]-[36].
Contrastingly, in Soliman v University of Technology, Sydney (2012) 207 FCR 277, a Full Court, after referring to Yusuf, stated that:[114]
Just as reasons for an administrative decision should not be read with an eye keenly attuned to discerning error, [115] eyes should not be so blinkered as to avoid discerning an absence of reasons or reasons devoid of any consideration of a submission central to a party’s case.
[114] (2012) 207 FCR 277 at [57].
[115] Citation omitted.
These principles are equally applicable to the assessment of a Tribunal’s consideration of whether an applicant answers the Convention definition of refugee in the context of a question of relocation.[116]
[116] SZSCA at [50] (Gageler J).
As stated, the Tribunal did not accept that the applicant’s mental health issues had been caused by the events which he had described.[240] The finding as to the absence of a causative connection between the applicant’s mental condition (and the bases on which he had claimed to hold a fear of persecution) is explicable by reference to the claims that were being made before the Tribunal. As noted, the applicant disclaimed any challenge to the legality of adverse credibility findings. No error is exposed in the Tribunal’s conclusion that no causative connection was established between the rejected bases on which the applicant asserted a fear of persecution and the medical condition which has been diagnosed.
[240] Reasons at [169].
The Tribunal considered the applicant’s submission that as he was unable to manage his condition in Australia he would be less likely to do so in Pakistan.[241] It attached little weight to the applicant’s mental health in the consideration of relocation by reason that it had rejected the factual bases on which his mental health was claimed to have arisen.[242] I consider this to be a conclusion reflecting the Tribunal’s view of the impact of relocation upon the applicant. The finding that it would be reasonable for the applicant to relocate was open.[243]
[241] Reasons at [171].
[242] Reasons at [171].
[243] Reasons at [172].
The applicant’s counsel expressly submitted that no challenge was made to the lawfulness of the Tribunal’s findings at [171] in relation to the applicant’s claims or his history. This submission is to be understood as reflecting that the Tribunal rejected fundamental premises on which the claim to protection was made – claims to incidents involving the Taliban were disbelieved. The applicant did not challenge those adverse credibility findings. Nor was it submitted that the decision was affected by jurisdictional error because the adverse credibility findings related to objectively minor matters of fact.[244] The cogency of the applicant’s evidence was of the greatest importance in the evaluation of the protection visa application. [245]
[244]Cf SZRKT (2013) 212 FCR 99, [78] (Robertson J); SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198, [25] (Gordon J).
[245]Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 at [61]-[62] (Gaudron and Gummow JJ, Gleeson CJ agreeing).
On any view those adverse credibility findings related to matters that were of central importance to acceptance of the claims as formulated at the time the Tribunal hearing was conducted. Whether or not this explains why the original claims were not pressed, it is not irrelevant to an understanding of the final objection to relocation. In my opinion, it is not irrelevant because the absence of any challenge to those adverse credibility findings exposes that the foundation to the ground of review could not rely upon those incidents as established facts.
As the Minister submitted, rejection of the primary bases on which the applicant claimed to fear persecution removed the substratum of support for subjective fear of harm. The Tribunal’s finding that relocation was reasonable reflected an objective assessment that on the material that was before it the applicant did not have a well-founded fear of persecution in DI Khan or Multan.
The Tribunal considered in detail[246] whether the applicant had a well-founded fear and could not relocate, whether to DI Khan or Multan. In assessing relocation, the Reasons disclose that the Tribunal gave consideration to factors bearing upon the reasonableness of relocation in a practical sense having regard to the applicant’s personal circumstances. It found that the applicant’s fear was not well-founded. This conclusion did not gainsay Dr Pastore’s opinion. The Tribunal and Dr Pastore were concerned to address different questions. Dr Pastore was concerned to provide an opinion centred on a clinical diagnosis of the applicant’s condition. By contrast, the Tribunal was to conduct a review of the issues arising on the decision under review, including whether the applicant had a well-founded fear of persecution.
[246] Reasons at [148]-[160]
Insofar as an integer of the applicant’s claim was that his condition would deteriorate and that he would not cope if relocated, the Tribunal’s reasoning did not challenge or reject Dr Pastore’s opinion. Rather it accepted the applicant’s PTSD and proceeded to examine objective considerations relevant to whether relocation was reasonable having regard to the applicant’s individual circumstances. It will be recalled that the applicant spent a significant part of his childhood and adolescence in DI Khan where he had completed two years of an engineering degree before applying for an Australian student visa. It could not be said that the applicant’s connection to DI Khan was slim or tenuous or that it was a new place for him to consider relocating to.[247] The Tribunal found that the applicant would have family support in both DI Khan and in Multan.
[247] cf CSO15 [2018] FCAFC 14 at [48], [54].
And in the evaluation of relocation, the Tribunal was not constrained by the framework set by the applicant’s objection to relocation. It was entirely appropriate for the Tribunal to have regard to matters beyond the applicant’s mental health in assessing whether it would be reasonable for him to relocate. The Tribunal was free to pay regard to all of the material before it, including country information and to utilise its experience and expertise in doing so.[248] The Tribunal had regard to county information, noting the increasingly stable conditions in, and the return of families to, areas which had been problematic – such as South Waziristan (being the area from which relocation was in issue).
[248] MZANX [2017] FCA 307, [58].
On a fair reading of the Reasons, I conclude that the Tribunal gave active consideration to the applicant’s claims. To adapt the reasoning in Bayalkoti[249] the Tribunal did not fail to have an active intellectual engagement with the applicant’s claims. The Tribunal considered the matter afresh. It was a matter for the Tribunal to determine the weight appropriate to be given to factors that were relied upon.
[249] [2017] FCA 217 [26]-[27].
Impact of relocation was subsumed in general finding
The Minister advanced an alternative submission that the claim (that the applicant’s mental condition would deteriorate and that he would not cope), had been subsumed in a finding of greater generality. It was submitted that in light of the findings that medical treatment and medication would be available, it was not necessary to make a finding as to the precise impact which relocation to DI Khan would have on the applicant’s mental health. As I have noted, country information informed an assessment of the availability of medical or psychiatric services and of medication.
The Tribunal’s material finding was that relocation was reasonable. The Tribunal set out in the Reasons the evidence and country information on which that finding was based including that medical treatment and medication would be available in DI Khan and Multan. The availability of such treatment and medication was a relevant consideration to the reasonableness of relocation and to the question of impact of relocation. The Tribunal’s findings that medical treatment and medication would be available to the applicant were unchallenged. Those findings were made in the context that the Tribunal had accepted the diagnosis of the applicant’s mental health. The applicant’s condition formed part of the ground upon which the applicant claimed to have a well-founded fear of persecution. Acceptance of Dr Pastore’s diagnosis necessarily involved acceptance of the applicant’s mental health for the purposes of considering the reasonableness and impact of relocation. The diagnosis was not disregarded.
The task of the Tribunal in this connection was necessarily evaluative.
Dr Pastore was not sure whether alternative placements would make it easier for the applicant. He opined that he did not think the applicant’s condition would ameliorate as a result of relocation – equally, he proffered no opinion that the condition would worsen as a result of relocation. Dr Pastore’s opinion was not unqualified.
While obliged to give reasons for its decision, including findings upon material questions of fact and the evidence on which such findings were made, the material question of fact was whether the applicant could relocate from Waziristan to DI Khan or Multan. Relevant considerations to that material fact included the reasonableness, in a practical sense, of relocation and the impact of relocation having regard to the applicant’s personal circumstances. The Tribunal made a finding on that question of material fact. It found that relocation was reasonable. In doing so it found that the applicant would not face a real chance of serious or significant harm if he were to relocate to DI Khan or Multan. It accepted that the applicant suffered from symptoms of PTSD, anxiety, depression and stress. The Reasons at [147]-[171] reflected the Tribunal’s analysis as to why, as a material fact, relocation was reasonable in all the circumstances.
It is more difficult to draw an inference that a decision is attended by error from what has not been said in the Reasons.[250] And it is an incorrect approach to judicial review to assume that the Minister must demonstrate by way of evidence or inference that a Tribunal had considered a matter the subject of complaint.[251] Given the Tribunal’s acceptance of Dr Pastore’s diagnosis together with its rejection of the factual substratum for PTSD and its consideration of available country information, it was not necessary in the circumstances for the Tribunal to provide further reasons as to the impact of relocation or with the degree of specificity[252] or precision[253] that was pressed by the applicant. The Tribunal was entitled to reject the claim without being obliged to comment on every item of material before it, to say why it rejected a particular item, or attributed less weight to it than to another item.[254] It was however, necessary to refer to the evidence on which it found as a material fact that relocation was reasonable.[255] It was also entitled to have regard to country information and to draw on its experience and expertise.[256] Reading the Reasons fairly and as a whole, I consider that the Tribunal discharged those obligations.
[250] Plaintiff M64/2015 [2015] HCA 50 at [59].
[251] SZGUR (2011) 241 594, [67]-[72] (Gummow J).
[252] MZZQV v Minister for Immigration [2015] FCA 533, [50], [68].
[253] CRI026, [2018] HCA 19 at [71] citing Randhawa.
[254]NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, [14].
[255] Nguyen, [2017] FCAFC 149 at [32].
[256] MZANX, [2017] FCA 307 at [58].
Having rejected the premise upon which the onset of PTSD was claimed and in light of the qualified nature of the opinion expressed by Dr Pastore above, it was not necessary for the Tribunal to make a separate finding as to the precise impact that relocation might have upon the applicant’s mental health. I agree in the submission that it was unnecessary for the Tribunal to make a finding of the precise impact which relocation to DI Khan or Multan would have on the applicant and that such finding was subsumed in the finding was that relocation was reasonable, particularly in light of available medical services and medication.[257] Nor was it obliged to give the sub-set of reasons why it accepted or rejected individual pieces of evidence or every item of material before it.[258] I conclude that the Reasons were comprehensive and that they dealt properly with the objection made by the applicant that his health would deteriorate and that he would not cope if relocated to DI Khan or Multan.
[257]Applicant WAEE (2003) 236 FCR 593, at [47]; NABE (2004) 144 FCR 1 at [58]; MZZLD [2017] FCA 31 at [39]-[40].
[258]Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]; Applicant WAEE (2003) 236 FCR 593 at [45].
Factual premise for illness rejected
The Minister’s further alternative submission was that the Tribunal was not obliged to make a separate finding that the applicant’s condition would in fact deteriorate and that he would not cope if relocated, by reason that the Tribunal had rejected the underlying premise on which this claim rested. The evaluative assessment that was required of the Tribunal necessarily speculative and predictive.
In its consideration of relocation, the Tribunal clearly recognised that the applicant’s main objection to relocation was the potential impact upon his mental health.
Having regard to the manner in which the claim was advanced before the Tribunal, I regard the issue of the applicant’s mental health as located in his submissions as an adjunct to reasons why the applicant claimed to hold an actual and well-founded fear of persecution arising from the incidents on which he relied. Those reasons were rejected by the Tribunal on the basis that the applicant’s evidence was not credible.
I accept the Minister’s submission that the Tribunal rejected the underlying premise on which the applicant’s mental condition was said to arise. But I do not accept that rejection of the factual premise for the onset of PTSD was determinative. The Tribunal was required to consider the reasonableness of relocation to DI Khan or Multan in a practical sense, taking account of the applicant’s individual circumstances, including his mental health conditions. The Tribunal did not cavil with Dr Pastore’s clinical diagnosis. It did not ignore, but rather accepted, that condition. The Tribunal proceeded to evaluate the issue of relocation taking account of that condition and did so having regard to the available medical services and medication. For the reasons in [268]-[272] above, I accept that the Tribunal was not obliged to make a separate finding that the applicant’s condition would in fact deteriorate and that he would not cope if relocation occurred.
Gravity of error
If I am wrong in the conclusions reached in my consideration of the matter, I would not have regarded any error in the Tribunal’s analysis of the issues arising on review of the delegate’s decision as being of such gravity as to constitute jurisdictional error. Not every error will constitute jurisdictional error. For the reasons I have given, I consider that the Tribunal undertook a comprehensive review of the merits of the application. Its review included a genuine consideration of the applicant’s history and personal circumstances including his diagnosis of PTSD and related conditions. It accepted those conditions for the purposes of its assessment of relocation.
Conclusion
The task of the Tribunal was to conduct a merits review based upon all of the material before it and to arrive at the correct or preferable conclusion. The claimed foundation for the applicant’s subjective fear of persecution had been rejected. The Tribunal was entitled to conclude on the material before it that, objectively, the applicant did not have a well-founded basis for the fear which he maintained. It was also entitled to conclude on those materials that relocation to DI Khan or Multan was reasonable in a practical sense having regard to the applicant’s particular circumstances. The impact of relocation was considered. The Tribunal had reliable information before it which supported its conclusion that relocation was reasonable.
As it was reasonable (in the sense of practicable) for the applicant to relocate from Waziristan to DI Khan, and having regard to the applicant’s personal circumstances, it was open to the Tribunal to conclude that Australia did not owe the applicant protection obligations in accordance with the Convention.
The applicant did not satisfy the Convention definition of refugee.
I acknowledge the assistance provided to the Court by counsel.
I certify that the preceding two hundred and eighty two (282) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 12 June 2018
| Table of corrections (12 June 2018) | |
| 5 | In fifth sentence delete ‘and that’ after ‘condition’ and insert: ‘Further,’ |
| The evidence before the Tribunal was not that relocation would worsen his condition and that medical services and medication would be available to the applicant. | |
| 71 | In final sentence, delete ‘are’ and substitute ‘be’. |
| I do not understand Kirby J to be suggesting that the applicant bears a legal onus but that the basis for the grant of a visa are demonstrated. | |
| 125 | In penultimate sentence, insert ‘been’ in the phrase: ‘error had not established’ after ‘not’. |
| Their Honours held that a judicially reviewable error had not established in relation to the issue raised. | |
| 129 | Delete ‘of’ and substitute ‘or’. |
| Upon review, the Tribunal is required to reach the correct of preferable decision on the material that is before it. | |
| 136 | In the phrase, ‘a psychologist’s report had not relied on’, insert ‘been’ after ‘not’. |
| By contrast, in CSO15, the Full Court recognised that a psychologist’s report had not relied on for a discrete claim concerning the applicant’s intellectual capacity and that in any event the Tribunal had given conscious and active intellectual consideration to the report. | |
| 147 | In second sentence, in the phrase ‘was undermined by’ insert ‘that it was’ after ‘was’. |
| As Kiefel CJ, Gageler and Nettle JJ observed the difficulty confronting a submission that the claim was based on established evidence, was undermined by the evidence that had been given to the Tribunal. | |
| 194 | In third sentence, delete’ interests’ and substitute ‘interest’. |
| The sole object of the Act is to regulate in the national interests the coming into and presence in Australia of non-citizens. | |
| 227 | In first sentence, insert ‘it’ after ‘present,’. |
| A fear cannot be well-founded if, although subjectively present, has no objective support. | |
| 230 | In fifth sentence, for ‘objective’ substitute ‘objectively’ and for ‘relocation’ where appearing secondly, substitute ‘consideration’. |
| I was not taken to and have not identified any authority which removes the requirement that the fear of persecution be objective well-founded when the reasonableness and impact of relocation falls for relocation. | |
| 252 | In first sentence, insert ‘the’ after ‘which’. |
| As attention was focussed on [171], the applicant left out of account the manner in which Tribunal identified the submission as put. | |
| 267 | In final sentence insert ‘and’ after ‘services’. |
| As I have noted, country information informed an assessment of the availability of medical or psychiatric services of medication. | |
| 272 | In third sentence, delete ‘this’ before ‘PTSD’. |
| Given the Tribunal’s acceptance of Dr Pastore’s diagnosis together with its rejection of the factual substratum for this PTSD and its consideration of available country information, it was not necessary in the circumstances for the Tribunal to provide further reasons as to the impact of relocation or with the degree of specificity or precision that was pressed by the applicant. | |
| 275 | Delete and substitute: ‘In its consideration of relocation, the Tribunal clearly recognised that the applicant’s main objection to relocation was the potential impact upon his mental health’. |
| This Tribunal clearly recognised that the applicant’s main objection to relocation was his mental health its consideration of relocation. | |
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