DDM18 v Minister for Home Affairs
[2020] FCCA 2121
•31 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DDM18 v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 2121 |
| Catchwords: MIGRATION – Application for review of decision of Immigration Assessment Authority – application for protection visa – issue concerning whether the IAA sufficiently considered the applicant’s claim as to his mental illness and its implications – has IAA failed to exercise jurisdiction conferred upon it – legal unreasonableness – no jurisdictional error established – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5AA, 5H, 5J, 35A, 36, 46A, 65, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD Migration Regulations 1994 (Cth), Sch 2 |
| Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593 AWG18 v Minister for Home Affairs [2020] FCA 744 BVZ16 v Minister for Immigration & Border Protection [2017] FCA 958 BMB16 v Minister for Immigration & Border Protection [2017] FCAFC 179 Chan v Minister for Immigration (1989) 169 CLR 379 Chapman v Tickner (1995) 57 FCR 451 Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 Htun v Minister for Immigration & Multicultural Affairs (2001) 233 FCR 136 Minister for Immigration v Guo (1997) 191 CLR 559 Minister for Immigration & Citizenship v SZJSS (2010) 243 CLR 164 Minister for Immigration & Citizenship v SZQRB (2013) 210 FCR 505 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 MZANX v Minister for Immigration & Border Protection [2017] FCA 307 NABE v Minister for Immigration & Multicultural & Indigenous Affairs [2004] 144 FCR 1 Plaintiff M 13-2011 v Minister for Immigration & Citizenship [2011] HCA 23 Randhawa v Minister for Immigration (1994) 52 FCR 437 S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18 |
| Applicant: | DDM18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | ADG 268 of 2018 |
| Judgment of: | Judge Brown |
| Hearing date: | 31 March 2020 |
| Date of Last Submission: | 31 March 2020 |
| Delivered at: | Adelaide |
| Delivered on: | 31 July 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Heidenreich |
| Solicitors for the Applicant: | Beena Rezaee Legal & Migration |
| Counsel for the Respondents: | Mr d'Assumpcao |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application filed 9 July 2018, amended 20 March 2020, is dismissed.
The Applicant pay the First Respondent’s costs fixed in the amount of six thousand dollars ($6,000.00).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 268 of 2018
| DDM18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
These are judicial review proceedings, in respect of a decision of the Immigration Assessment Authority,[1] made on 8 June 2018, not to grant the applicant a protection visa pursuant to the provisions of the Migration Act 1958.[2]
[1] Hereinafter referred to as “the IAA”
[2] Hereinafter referred to as “the Act”
The grounds of review centre on submissions that the IAA failed to consider a central component of the applicant’s claim for protection; and otherwise misconceived his claim.
Both grounds rely on submissions that the IAA misconstrued aspects of his case, relating to his diagnosed mental illness, in the context of Australia’s complementary protection obligations.
If successful, in his application, the applicant seeks the quashing of the relevant determination and its remission back to the IAA for re-hearing.
Background
The applicant is a citizen of Afghanistan, where he was born in 1973. However, at an early age, he fled to Iran, with his adopted parents and lived in that country until he was around 18 years of age, when he was deported back to Afghanistan by the Iranian authorities.
After the rejection of his claim by the ministerial delegate, he further claimed that he had then learned from his adoptive father that his natural father had been a commander in the Afghan civil war. His father had been killed when the applicant was two years of age. These had been the circumstances surrounding his adoption. The applicant claimed that these revelations had caused him great emotional upset and compelled him to consider suicide.
The applicant is a Hazara by ethnicity and a Shia Muslim by religion. It is the applicant’s case that, in Afghanistan, he is regarded as a foreigner, by both Hazaras and other ethnic groups within Afghanistan, because he speaks like an Iranian and this makes him vulnerable to discriminatory conduct.
However, he has no legal right to remain in Iran and is therefore liable to deportation. Afghanistan is the only country in which he is legally able to remain. However, in that country, he has few, if any, practical connections or family supports available to him to make his existence there viable.
In these circumstances, after his first deportation to Afghanistan, he had no option other than to return to Iran illegally because this was the only place where he would be able to support himself economically.
However, in 2010, the applicant was again deported back to Afghanistan, where he found his situation was unchanged, leaving him with no alternative but to again return to Iran, from which he was deported for a third time, in 2012, leading to him living in Kabul, for a number of months.
It is the applicant’s case that, in Kabul, he was unable to find employment and feared for his safety, because the unusual combination of his Hazara appearance and his language, Farsi, made him a target for persecution.
As a consequence, fearing for his safety, he left Afghanistan and travelled to Jakarta. In Indonesia, he boarded a boat, which landed at Christmas Island, in early 2013, without authorisation from the Australian authorities.
On his arrival, the applicant sought the protection of Australia. He claimed as follows:
“If I return to Afghanistan I will still have no connections there. I will be in the same situation as before I left. I have only lived in Afghanistan for very short periods. I look like an Hazara and I speak like an Iranian, so Afghanistan is very unsafe for me. I will not be able to support myself or my family there. The last time I was in Kabul I was told not to go out and not to go to certain places because I was likely to be kidnapped or killed. I see the news reports about the constant violence towards Hazaras. I will be fearful for my life in Afghanistan.
I think the Taliban and the Pashtuns and any of the people who support them would want to harm me. They do not like Hazaras and Shia Muslims. Because of the way I speak, I do not sound Afghani, I would not be accepted even by Hazaras so life would be more difficult for me even than for the Hazaras living in Afghanistan. I will be discriminated against and unable to get work because I have no connections.”[3]
[3] See applicant’s statement in support of his application for a Safe Have Enterprise Visa dated 27 June 2016 at casebook 82 [9]–[10]
Legal considerations relevant to the grant of protection visas
Pursuant to section 65 of the Act, the Minister is required to grant any visa arising under the Act, if satisfied that the conditions attaching to such visa have been satisfied by the applicant concerned.
As previously indicated, the applicant has applied for a protection visa. Section 35A of the Act creates two classes of protection visas known respectively as Safe Haven Enterprise Visas “SHEV” and Temporary Protection Visas “TPV”.
In respect of each such protection visa, the criteria required to be satisfied are set out in Schedule 2 to the Migration Regulations 1994. In general terms, any applicant is required to satisfy the primary criterion contained in section 36(2)(a) or (aa) of the Act.
Section 36(2)(a) requires an applicant to satisfy the Minister that he or she is a refugee and therefore owed protective obligations by Australia. The expression refugee is defined in section 5H and provides a person is a refugee if that person:
“in the case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country;”
This section reflects the definition appearing in the Refugees Convention, to which Australia is a signatory and which provides that a refugee is a person who:
“…owing to a 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 expression well-founded fear of persecution is defined by section 5J and requires the applicant concerned:
·to fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·be subject to a real chance of being persecuted for one of these reasons, if returned from Australia; and
·the real chance of persecution relates to all areas of the country from which the person has fled.
Section 5J(4) further defines the concept of persecution. The reason the conduct is feared by the person concerned must relate to a convention reason – race, religion, nationality, political opinion or membership of a particular group – and must be an essential and significant reason.
The persecution must involve serious harm and the persecution itself must be systematic and discriminatory in its nature. The concept of serious harm involves:
·a threat to a person’s life or liberty;
·significant physical harassment;
·significant physical ill-treatment;
·significant economic hardship;
·denial of access to basic services, leading to a lack of a capacity to subsist;
·denial of a person’s right to earn a livelihood, such as to threaten a capacity to subsist.
The High Court has established that the definition of real chance has both subjective and objective elements. The question to be asked by the relevant decision maker being does the applicant subjectively fear persecution and is that fear objectively well-founded.
In assessing the objective aspects, the decision-maker concerned must determine what is likely to happen to the applicant concerned if he or she is returned to the country. Necessarily these matters are predictive in nature. They are often encapsulated under the rubric of the real chance test.
In this context, the High Court has said as follows:
“The objective element requires the decision-maker to decide what may happen if the applicant returns to the country of nationality. That is an inquiry which requires close consideration of the situation of the particular applicant …
Because the question requires prediction of what may happen, it is often instructive to examine what has happened to an applicant when living in the country of nationality. If an applicant has been persecuted for a Convention reason, there will be cases in which it will be possible, even easy, to conclude that there is a real chance of repetition of that persecution if the applicant returns to that country. Yet absence of past persecution does not deny that there is a real chance of future persecution.
Again, because the question requires prediction, a decision-maker will often find it useful to consider how persons like the applicant have been, or are being, treated in the applicant’s country of nationality. That is useful because it may assist in predicting what may happen if the applicant returns to the country of nationality. …”[4]
[4] S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 at 478–479 [72]–[73]
In cases such as Chan v Minister for Immigration[5] and Minister for Immigration v Guo,[6] the High Court has indicated that a fear can be well-founded even if there is no certainty or even probability that it will be realised; or even though there is only a ten percent chance that persecution will occur. However, far-fetched possibilities of persecution must be excluded.
[5] Chan v Minister for Immigration (1989) 169 CLR 379
[6] Minister for Immigration v Guo (1997) 191 CLR 559
Section 36(2)(aa) provides that a protection visa is available in the event that the applicant in question establishes satisfactorily that, if removed from Australia, there is a real risk that person will suffer significant harm.
This is known as the complementary protection criterion. It codifies Australia’s international treaty obligations not to subject a person to the risk of non-refoulement – that is the risk of suffering significant harm if returned to a particular country.
In Minister for Immigration & Citizenship v SZQRB[7] the Full Court of the Federal Court had held that the risk threshold for complementary protection (real risk) under section 36(2)(aa) of the Migration Act is equivalent to the real chance test which applies with respect to Convention obligations enshrined in section 36(2)(a) of the Act, namely that there is a real chance that the person will suffer significant harm.[8]
[7] Minister for Immigration & Citizenship v SZQRB (2013) 210 FCR 505
[8] Ibid at 551 [248] per Lander & Gordon JJ and 557 [297] per Besanko & Jagot JJ
Subsection (2A) defines significant harm. It includes the relevant applicant for protection suffering all or any of the following circumstances:
·being arbitrarily deprived of his or her life;
·being subject to the death penalty;
·being subject to torture;
·being subjected to cruel or inhumane treatment or punishment; or
·being subject to degrading treatment or punishment.
Section 36(2B) is germane to the grounds of review advanced in the case. It provides that it is taken not to be a real risk a person will suffer significant harm in a particular country if satisfaction is reached in respect of the following considerations:
·it would be reasonable for the applicant in question to relocate to another area of the country concerned, where there was no real risk of he or she suffering significant harm; or
·the applicant could obtain protection from relevant state authorities to avoid suffering such significant harm; or
·the real risk was one faced by the whole population of the country concerned not the particular applicant personally.
The provision encapsulates a principle which is commonly referred to by lawyers as the principle of internal relocation. The principle of internal relocation is predicated on the basis that it is not reasonable, for the nation signatories to the Refugees Convention, to be required to offer protection to the sufferers of persecution, as defined by the Convention, if safety is available to them, within their country of origin, through the agency of their own state.
In Randhawa v Minister for Immigration[9] Black CJ discussed the principle and indicated that the question, which a decision maker, in respect of refugee status, should ask, was whether the applicant’s “fear [of persecution] was well founded in relation to his country of nationality, not simply the region in which he lived.”
[9] Randhawa v Minister for Immigration (1994) 52 FCR 437 at 442–443
However, given the humanitarian objects of the Refugee Convention, this question was not to be approached in a “narrow way”. Accordingly, a person’s fear of persecution would remain well founded in respect to the country as a whole, if, as a matter of practicality, the part of the country in which protection was available was not reasonably accessible to the person claiming asylum.
In this context, Black CJ expressed the consideration as follows:
“If it is not reasonable in the circumstances to expect a person who has a well-founded fear of persecution in relation to the part of a country from which he or she has fled to relocate to another part of the country of nationality it may be said that, in the relevant sense, the person's fear of persecution in relation to that country as a whole is well-founded.”[10]
[10] See Randhawa (supra) at 443
In SZATV v Minister for Immigration & Citizenship[11] the High Court considered that a decision-maker, in respect of refugee status, must consider whether it was reasonable, in the sense of being practicable, for an asylum seeker to relocate to a region, where objectively there was no appreciable risk of the feared persecution occurring.
[11] SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18
It was considered that such a formulation did not turn upon any hypothetical assumption regarding possible safe areas within the country concerned nor did it prevent “account being taken of the presence of a subjective fear of persecution …” on the part of the applicant seeking asylum status.[12]
[12] SZATV (supra) at 26
Accordingly, considerations germane to what is subjectively practicable for an applicant for refugee status to do, are relevant to whether it is reasonable, in overall terms, for that person to move to another region, within his country of origin, where in objective terms, there is no likelihood of persecution for the individual concerned in that region.
The High Court (Gummow, Hayne and Crennan JJ) said as follows:
“What is ‘reasonable’, in the sense of ‘practicable’, must depend on 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.”[13]
[13] SZATV (supra) at 27
Accordingly, an essential component of the decision-making process as to whether it is reasonable for an applicant for refugee status to relocate to another part of his/her country of origin is a consideration of his/her “particular circumstances”. A failure to do so will constitute a jurisdictional error and vitiate any resulting decision.[14]
[14] See Plaintiff M 13-2011 v Minister for Immigration & Citizenship [2011] HCA 23 per Hayne J at [22]
In MZANX v Minister for Immigration & Border Protection[15] Mortimer J warned of the danger of such an assessment becoming formulaic and removed from any real factual basis relevant to the individual concerned. In terms of what was involved in an applicant prospectively moving to a particular location in his/her country of origin, it was necessary for a decision-maker to “attempt to assess what, in a real and practical sense, will happen to that individual and her or his family in those circumstances.”
[15] MZANX v Minister for Immigration & Border Protection [2017] FCA 307 at [56]
Mortimer J held that there must be a “sufficiently detailed array of information about the individual concerned (and any family members) and a sufficiently detailed array of information about the putative safe location,”[16] and what the applicant’s anticipated life would be like in that location.[17]
[16] MZANX v Minister for Immigration and Border Protection (supra) at [51]
[17] MZANX (supra) at [65]
In this context, Her Honour considered that it was incumbent on the relevant decision-maker to undertake a detailed consideration of the circumstances on the ground for the applicant concerned, particularly what were the practical and realistic abilities of an individual to re-start his or her life in a new place, without undue hardship.[18]
[18] MZANX (supra) at [55]
Essentially what the task involves is a hypothetical examination of what life will be like for the applicant concerned in the proposed location. This is likely to entail an assessment of the standard of health, housing, education, employment, liberty and freedom available to the applicant concerned, upon the commencement of such a new life.
The jurisdiction of the IAA
Due to the manner of the applicant’s arrival in Australia, he is classified under the Act, as an unauthorised maritime arrival into Australia [see section 5AA]. Pursuant to section 46A this classification prevents any such person from being able to apply automatically for any form of visa, including a protection visa, unless the relevant minister (the Minister for Immigration & Border Protection)[19] authorises it, on the basis of being satisfied that it is in the public interest to do so.
[19] Hereinafter referred to as “the Minister”
In the relevant jargon, this process is known as lifting the bar. The applicant was interviewed, as an unauthorised maritime arrival, by departmental officers, in February of 2013. The bar to his application was lifted on 3 March 2016 and his SHEV application was made, with the assistance of a migration agent, on 29 June 2016.
A consequence of the Minister allowing any applicant to make a visa application, in this way, is that such an applicant becomes characterised as a fast track applicant and, as such, the manner in which his/her application is to be determined and any review process arising is prescribed by Part 7AA of the Act.
Part 7AA of the Act mandates a process of review in respect of all decisions made by ministerial delegates in respect of such fast track applicants. In broad terms, if the delegate declines to grant a protection visa under the Act, the decision in question must be referred to the IAA, for review, as soon as practicable after it has been made.
The decision of the Ministerial Delegate
The delegate’s decision was made on 9 August 2017. In the decision, the delegate accepted that the applicant originated in the Waras District of Bamyan Province in central Afghanistan. It was also accepted that the applicant was a Hazara and a Shia Muslim.
On the basis of country information, the delegate found that Bamyan is part of the Hazarajat and an area of Afghanistan in which a majority of its inhabitants are Hazaras. However, the delegate also found that security on roads linking Hazara-majority districts to Kabul and other parts of Afghanistan was insecure. In this context, the delegate found as follows:
“… the applicant would be required to travel overland to reach Waras District after arriving at an airport in a major city (such as Kabul, Herat, Ghazni or Maza-i-Sharif), I therefore accept that the applicant would face a real chance of being abducted by an insurgent, and/or criminal group for reason of his being a Shia Hazara while travelling from his return airport to his home area of Waras district, Bamiyan province and that this amounts to a real chance of serious harm for reason of the applicant’s race and religion.”[20]
[20] See Case Book at page 178
Having made this finding, the delegate went on to consider the application of section 5J(1)(c) – whether the persecution related to the whole of the country concerned. The delegate concluded that it did not, noting the country information indicated that individuals, with the applicant’s profile, were not targeted in Kabul.[21]
[21] Ibid at page 184
The delegate also found that the applicant would be able to locate and find meaningful employment opportunities, for himself, in either Kabul or Herat. It was also found that it would be practicable for him to relocate to either of these areas because the applicant was assessed to be a resourceful person who would be able to access services in these locations.
The nature of the proceedings before the IAA
The procedure to be followed by the IAA does not entail a fresh re-hearing of the application before the ministerial delegate. Rather the material to be reviewed by the IAA is mandated by various provisions within Part 7AA of the Act.
Section 473CB sets out the material, which the Secretary of the Department[22] must provide to the IAA. It includes the reasons of the delegate; any material provided by the applicant concerned to the original decision-maker; and any other material considered to be relevant.
[22] Hereinafter referred to as “the Secretary”
Section 473CC provides as follows:
“(1) The Immigration Assessment Authority must review a fast track reviewable decision referred to the Authority under section 473CA.
(2) The Immigration Assessment Authority may:
(a) affirm the fast track reviewable decision; or
(b)remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.”
The procedure of the IAA and how it is to conduct its fast track review function is delineated in section 473DA, particularly what application the rules of natural justice have to fast track matters, including any requirement to refer documents to an applicant for comment. The section reads as follows:
“Exhaustive statement of natural justice hearing rule
(1) This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.
(2) To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.”
Section 473DB indicates that a fast track review is to be conducted only in respect of the material referred to the IAA by the Secretary without accepting or requesting any new information or interviewing the applicant concerned. In the jargon of administrative review, the review arising under Part 7AA is to be “on the papers” alone.
In this context, the IAA’s authority to access additional review material, to that provided to it by the Secretary, is limited and delineated exhaustively in Subdivision C of Part 7AA.
Section 473DC grants the IAA a discretion to obtain new information not previously before the Minister at time of decision if it might be relevant. Section 473DC(3) provides the IAA with a further discretion to invite an applicant to provide further information either in writing or through the medium of an interview.
However, the IAA is under no obligation or duty to obtain such information regardless of whether it is requested to do so by the applicant whose case has been referred to it or any other person [see section 473DC(2)].
The exercise of the discretion provided by section 473DC is subject to the satisfaction of two cumulative but overlapping considerations,[23] provided by section 473DD. The IAA is prohibited from considering new information unless two overlapping considerations are satisfied, namely:
·The IAA is satisfied that there are exceptional circumstances sufficient to justify it considering such material; and
·The applicant concerned satisfies the IAA the new information:
·either could not have been provided to the Minister at time of decision; or
·is credible personal information not previously known and had it been known, may have affected the consideration of the claims made.
[23] See BVZ16 v Minister for Immigration & Border Protection [2017] FCA 958 at [9] per White J
As a consequence of the Full Court decision in BMB16 v Minister for Immigration & Border Protection[24] it is clear that the function of the IAA is to evaluate, for itself, the review material provided under section 473CB together with any new information it obtains and then to either affirm the delegate’s decision or remit the decision for reconsideration, in accordance with such directions or recommendations as are permitted under the Regulations. Accordingly, it is open to the IAA to reach a different conclusion to the delegate in respect of matters arising in the review in question.
[24] BMB16 v Minister for Immigration & Border Protection [2017] FCAFC 179
The IAA decision
As a consequence of the delegate’s decision, the matter was referred to the IAA on 14 August 2017. On 11 September 2017, the applicant’s representative forwarded correspondence to the IAA requesting that certain pieces of new information should be considered by it. The relevant new information was as follows:
“The new information regarding [the applicant’s] mental health should also be considered. [The applicant] has failed to mention his deteriorating mental health due to the great stigma attached to those suffering from mental health issues in Afghan society. With a significant number of the mainstream Australian population suffering from mental health issues, and with mental health issues being prevalent among asylum seekers, it is entirely conceivable that [the applicant] who has lived most of his life in exile under the threat of and actual deportation to Afghanistan also suffers from mental health issues.”[25]
[25] See Case Book at page 221
In respect of the reasonableness and overall practicability of the applicant returning to live in a major urban centre of Afghanistan, the advisor made the following submission:
“[The applicant’s] family currently remain in Iran, and he has no family links or networks anywhere in Afghanistan. [The applicant’s] family is currently dependent on him emotionally and financially. Additionally, like most asylum seekers due to past trauma and the degree of uncertainty faced in Australia [he] is likely to suffer from mental health complications, which will have an impact on his ability to reintegrate, find employment, shelter and develop social networks in Kabul and Herat. Other factor that will impede his ability to relocate include the fact that he will be returning from the West.
…
[The applicant’s] mental health issues will impede his ability to find employment, shelter, establish a social support networks and to generally be able to subsist. We therefore submit that it is unreasonable for [the applicant] to relocate to Kabul and Herat. ”[26]
[26] Ibid at pages 225 & 227
The applicant himself provided further new information in the form of additional evidence, in a statutory declaration dated 11 September 2017, in the following terms:
“…I suffer from mental health and due to significant stigma attached to it in the Afghan community, I have not been able to speak about this to anyone. I cry excessively and at times for hours in my room. I feel hopeless and useless and feel my life is a misery. The moment people hear about my mental health, I would be called a psycho and a brainsick.
There is little to no recognition for mental health issues with the Afghan men. Therefore I have unfortunately given in to the dominating norm and have suppressed my mental health pains within me but it has got to a point where I can’t tolerate it any further and have requested to see a psychologist.”[27]
[27] Ibid at page 228
In conjunction with this submission, on 12 December 2017, the advisor provided the IAA with a report from Ms Farah Sobhanian, a psychologist, who had assessed the applicant. She wrote as follows:
“Clinical assessment indicated that he suffered a significant depressive condition and high levels of stress and anxiety. His condition has been characterised by persistent negative moods: sadness, helplessness, powerlessness, fear and anxiety. His cognitive functions have been disrupted by constant anxious thoughts about his future. His sleep has been profoundly disturbed. He has attended for counselling support for his psychological symptoms, related to his fear of deportation to Afghanistan…
[The applicant] found it very difficult to discuss his mental health issue. He told me he has never talked about his matter to anyone before as culturally it is not acceptable to talk about it. Also there is a stigma attached to a male opening up about his feelings as it would be considered as sign of weakness.”[28]
[28] Ibid at page 539
It was in his statutory declaration of 11 September 2017 that the applicant had deposed as to recently hearing the information regarding the circumstances of his adoption as an infant and the truth about the death of his natural father. He deposed as follows:
“…my adopted father has always tried to hide the fact that my father was in fact involved in the civil war in Afghanistan and he was killed together with my mother when I was only 2 years old. I have only been told this after I delivered the news of my rejection and was extremely frustrated and told him that I would take my life as I can’t bear you hiding the most important truth in my life.”[29]
[29] Ibid at page 228
The IAA accepted that it should consider the report of Ms Sobhanian as the conditions stipulated by section 473DD were satisfied, namely that it was credible personal information germane to the applicant and could not have been previously provided to the Ministerial delegate.[30]
[30] See IAA Decision at page 846 [4]
In addition, it was also accepted that the evidence provided by the applicant personally regarding his mental health issues and its perception in the Hazara community also satisfied the requirements of new information and could be considered by the IAA.[31]
[31] Ibid at page 846 [5]
The IAA accepted that the applicant was a national of Afghanistan, who was born in the Waras District of Bamyan Province and was of Hazara ethnicity and a Shia Muslim. The IAA summarised the applicant’s claims for asylum in the following terms:
“[The applicant] claims to fear that if he were to return to Afghanistan he would be killed or kidnapped by terrorists like the Taliban (and Pashtuns and other persons who support them) or Islamic State, or robbers, and that he would be unable to support himself, for reason of his being a Hazara, and also because he speaks like an Iranian, and because would have no connections and not be a local person and would not know all the things to be wary of, and because he has been in Australia and would be a returnee from a western country. He also claims to have fears because the Afghan government has people in it who are Pashtuns and who support the Taliban and who do not care about, and are biased against, Hazaras. He also fears that if he returns to Afghanistan the moment people would hear about his mental health he would be called ‘a psycho’ and ‘brainsick’”.[32]
[32] Ibid at page 849 [11]
The IAA expressed some doubts about the circumstances surrounding the applicant’s adoptions but did not expressly reject this aspect of his claim. It accepted that he had been taken to Iran, as a child, where his adopted family remained. It was also accepted that he had learnt something of his background in 2012, which had led him to return to the place of his birth in Afghanistan.
The IAA did not accept other accepts of the applicant’s claim regarding the assertion that his father had been a senior official (the Shura) in one of the factions in the civil war, which had led to his death at the hands of another faction (the Nasr) and that the applicant himself would be in danger of being killed because of his relationship to his father.
The IAA then went on to consider the implications of the matters raised by the applicant in respect of his mental health impairment claims. These have two main aspects:
·Its implications for his own personal level of functioning;
·How he would be perceived in Afghanistan, particularly if it became known he had consulted a psychologist, in Australia, in respect of a mental health issue.
In respect of the first aspect, the IAA found as follows:
“I accept that the applicant has suffered from depression / anxiety and that he has attended counselling support for his psychological symptoms relating to his fear of being deported. Neither the applicant nor the general psychologist provide any information about when the applicant first developed these conditions but I accept that he has been experiencing depression / anxiety since at least September 2017. Even so, and although I accept the finding that the applicant’s cognitive functions have been disrupted by constant anxious thoughts about his future, this would not account for the problems which undermine the credibility of the applicant’s new claims to the IAA regarding what he claims his adoptive father has told him about his natural father’s being a Shura commander who was killed by the Nasr party. Moreover, given the manner in which I have found that the applicant’s claims regarding his communications with his adoptive father about this matter are not credible, and given that the psychologist’s report makes no mention of the applicant’s having threatened self-harm, I do not accept that the applicant did tell his adoptive father that he was going to take his own life. The applicant claims that he cries excessively and at times for hours in his room and I am willing to accept that there have been instances in the past where this has occurred. However, given that the applicant would not appear to have reported this as an ongoing problem to the general psychologist who he met with on 20 September 2017, 19 October 2017 and 3 November 2017, I do not accept that the applicant is affected by ongoing problems of this kind. Further, and while the applicant claims that he chose to seek out mental health support when he did because he could not tolerate his mental health problems any more, and while he has attended counselling support for his psychological symptoms relating to his fear of being deported, it would not appear that any of the recommendations made in the psychologists report about further treatment are being followed, or that he is currently attending any mental health support services in an ongoing way, and this, in combination with the timing of when the applicant saw the psychologist to have a report produced for the benefit of the IAA (though not explicitly addressed to the IAA the report’s recommendations addressing the possible consequences of his being returned to Afghanistan make it plain that this report was requested for to support an application to remain in Australia) leads me to conclude that the principal reason the applicant sought assistance from the psychologist, and attended counselling support, was to obtain the letter he wished to provide to the IAA rather than to obtain assistance in treating his mental health.”[33]
[33] Ibid at page 863 [39]
In summary, the IAA, whilst accepting that the applicant had suffered depression/anxiety since 2017, rejected the assertion that he had:
·Threatened suicide to his adoptive father;
·Had on-going problems in respect of his mental health;
·Had sought out psychological support for such problems, because:
ØHe was not following the recommendations provided for his treatment; or
ØCurrently attending any mental health service.
In these circumstances, the IAA concluded that the applicant had approached Ms Sobhanian principally in order to advance his claim, rather than for legitimate therapeutic reasons.
In the following paragraph, the IAA further summarised Ms Sobhanian’s report and noted that she was of the view that:
·If the applicant was forced to return to Afghanistan, this may well compromise his psychological wellbeing further and have significant negative side effects;
·The applicant needed ongoing treatment to manage his symptoms.
However, in this context, the IAA concluded as follows:
“…there is no evidence before me to indicate that the applicant is currently receiving any ongoing treatment for his mental health (beyond the three interviews conducted for the purpose of the general psychologist’s report, and which ended on 3 December 2017) in terms of counselling, medication or anything else. In such circumstances I am not satisfied that there is a real chance the applicant’s situation will deteriorate, or that he would be unable to manage his mental health, upon return to Afghanistan owing to his being returned to Afghanistan and/or because of the limited availability of mental health treatment in Afghanistan.”[34]
[34] Ibid at page 863 [40]
Thereafter, the IAA turned to consider the second aspect of the applicant’s case, namely that he would be subject to a substantial risk of suffering some form of serious or significant harm because he would be stigmatised as belonging to a particular social group, namely the sufferers of mental illness, by the general population of Afghanistan, if returned there.
In this context, the IAA concluded as follows:
“It is true that some kinds of mental illness, such as schizophrenia and other forms of psychosis, can result in the sufferer experiencing mistreatment in Afghanistan. However, and while it is not impossible that a person exhibiting signs of depression and anxiety might experience discrimination in the employment market or some other social situation, it is also the case that functional mental illnesses like depression, anxiety and stress, are common amongst the Afghan population (one study has found that 68 percent have experience depression while 72 percent have experienced anxiety) and the evidence does not indicate that such persons, or the applicant, would face a real chance of suffering discrimination in the form of being labelled ‘a psycho’ and ‘brainsick’, or harm of any other kind, in Afghanistan. It is true that it has been reported that the stigma associated socially with psychosocial disabilities is a significant barrier for people seeking support from mental health services more broadly; that is to say, that persons who seek out mental health treatment can be stigmatised in Afghanistan. However, given that the applicant has not continued to receive ongoing support of this kind here in Australia, and given that on the applicant’s own evidence such support may be unavailable in his home area, and given my doubts about the applicant’s actual level of interest in receiving such ongoing treatment now or in the future, and given that the possibility that anyone in Afghanistan would ever come to know that he visited a psychologist in Australia seems remote, I am not satisfied that the applicant would face a real chance of harm of any kind on the basis of his mental health if he were to return to Afghanistan, even in the context of living in a small village in Waras District in Bamyan Province.”[35]
[35] Ibid at pages 863–4 [40]
The basis of the assertion that the stigma associated with mental illness is a significant barrier to such individuals seeking appropriate support in Afghanistan are a number of articles, including World Health Organisation reports cited by the IAA in a footnote. Otherwise the IAA concluded as follows:
·Sufferers of serious mental illness – schizophrenia and psychosis –could be subject to mistreatment in Afghanistan;
·Anxiety and depression – by necessary implication, less serious incidents of mental illness – were common in Afghanistan;
·As a consequence, there was no real chance of the applicant being labelled as brainsick or psycho because he personally suffered from depression/anxiety;
·In any event, given the fact that the applicant had not sought out on-going treatment, in Australia, for his condition and it was not likely that there would be such treatment to him in Afghanistan, it was unlikely that he was to be so labelled;
·In this context, it was extremely improbable that anyone in Afghanistan would become aware that he has previously consulted a psychologist, in Australia, in respect of mental health issues.
On the basis of country information available to it and its findings in respect of the credibility of his evidence, the IAA rejected other aspects of the applicant’s claim for protection. These can be summarised as follows but are not relevant to grounds of review presented in the matter currently before the court:
·He was not likely to be targeted by terrorists because he was a Hazara and Shia;
·He would not likely be targeted by the Taliban or similar organisations because he was a returned asylum seeker.
In its summary of the applicant’s claim that he met the definition of refugee contained in section 5H(3) of the Act, the IAA found as follows:
“On the evidence before me, and given the foreseeable situation in Kabul, and along the land route linking Kabul to the Hazarajat via Ghazni (and given also the alternative possibility of the applicant’s flying from to Bamyan), and along the roads of the Hazarajat, and in the area of Waras District in Bamyan Province where the applicant would reside, I am not satisfied that applicant would, if he were to return to his birth village, face a real chance of harm of any kind from the Taliban (or from the broader Pashtun and Sunni Muslim population), or from Islamic State or any other AGE, or from Pashtuns in the Afghan government or from any other government official, or from criminals (robbers), for reason of his being a Hazara, and/or a Shia Muslim, and/or because he has been in Australia and would be a returnee from a western country where he has sought asylum, and/or because he speaks in any way that might be considered Iranian, and/or for any reasons associated with his mental health, and/or as a consequence of generalised violence and/or crime, and/or as a consequence of general insecurity along the road network he would travel to return to his birth village. Further, and as has been noted above, I am not satisfied that the applicant would face a real chance of harm of any kind from any Hazaras in in the area of Waras District in Bamyan Province where he would reside for reason of his being perceived as a stranger, and/or for any reason associated with his mental health, or because he has been in Australia and would be a returnee from a western country where he has sought asylum, and/or because he speaks in any way that might be considered Iranian. Having regard to the circumstances of the applicant in their totality, and the foreseeable situation in Afghanistan, I am not satisfied that the applicant would face a real chance of harm from any actor for any reason if he were to return to his birth village in Waras District in Bamyan Province.”[36]
[36] Ibid at pages 876–7 [63]
In respect of his claim for complementary protection arising under section 36(2)(aa), particularly in the context of him suffering significant harm, if returned to Afghanistan, the IAA found as follows:
“…considering the applicant’s claims in their totality, I am not satisfied that the applicant would face a real chance of experiencing harm of any kind if he were to return to Afghanistan. I am therefore not satisfied that he would face a real risk of experiencing harm of any kind if he returned to Afghanistan. I am therefore not satisfied that he would face a real risk of significant harm if he returned to Afghanistan.”[37]
[37] Ibid at page 877 [67]
Counsel for the applicant characterises this summation of the applicant’s claim for complementary protection as being perfunctory in nature and axiomatically failing to come to grips with the applicant’s claim that he will be at risk of suffering significant harm, if returned to Afghanistan, because of his mental health, particularly in the context of its degeneration.
The nature of judicial review
This court has no jurisdiction to conduct a merits review of the material which was before either the ministerial delegate or the IAA. The court is not entitled to substitute its own view of the evidence and conduct a re-hearing. Its authority is only to determine whether the IAA properly exercised the jurisdiction conferred upon it and made a lawful decision.
The classic description of an error, which goes to the jurisdiction of an administrative body, was described in the following terms by the High Court in Minister for Immigration & Multicultural Affairs v Yusuf:
“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.”
The authorities are clear that a failure to consider a claim, raised either expressly or implicitly, on the material before an administrative fact finder is an obvious jurisdictional error. [39] In this context, Allsop J (as His Honour then was) said as follows in Htun v Minister for Immigration & Multicultural Affairs:
“The requirement to review the decision [pursuant to the provisions of the Act] requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration… It is to be distinguished from errant fact finding. The nature and extent of the task of the Tribunal revealed by the [terms of the Act] … make it clear that the Tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant.” [40]
[39] See Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389
[40] Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42]
In the current matter, the applicant contends that the IAA failed to deal adequately with various aspects or integers of his claim and therefore fell into jurisdictional error leading to the vitiation of its decision.
These integers centre on what is asserted to be a failure to grapple, with sufficient intellectual rigour, with the applicant’s claim for asylum on the basis of his mental health issues, which led to this aspect of his case not being considered and so leading to jurisdictional error. Necessarily, the applicant must establish that these aspects of the claim had been raised with sufficient clarity before the IAA and then not dealt with.
The grounds of review
In his amended grounds of review, filed 20 March 2020, the applicant propounds the two following grounds of review:
“(1) The decision of the IAA is affected by jurisdictional error in that the IAA failed to consider a relevant integer of the Applicant’s claim with respect to the Applicant having a well-founded fear of persecution if returned to Afghanistan.
Particulars:
The well-founded fear of persecution arises by reason of the Applicant’s mental health conditions, which are such that he will experience serious harm as a direct result of being returned to Afghanistan.
(2) The IAA failed to correctly apply the complementary protection assessment as required by section 36(2)(aa) of the Act.
Particulars:
The IAA neglected to consider the effect and consequences of the Applicant’s mental health conditions in the context of whether they would give rise to a real risk of significant harm as a necessary and foreseeable consequence of the Applicant’s return to Afghanistan.”
Discussion
Section 473CC of the Act requires the IAA to review any decision referred to it. As such, it is an essential requirement of its review function that it consider all claims made by the applicant concerned, including each essential component or integer of such claims, otherwise it will not acquit the jurisdiction conferred upon it.[41]
[41] See Htun v Minister for Immigration & Multicultural Affairs (2001) 233 FCR 136
In the context of refugee cases, which invariably involve individuals disadvantaged by language difficulties, who may have concomitant problems in articulating what are their claims for protection, difficulties may arise as to what are the actual claims being advanced and what are the components of such claims.
In NABE v Minister for Immigration & Multicultural & Indigenous Affairs[42] the Full Court indicated that a reviewing body, which in my view should be taken to include the IAA, is required to consider only claims which are either:
·The subject of substantial clearly articulated arguments relying on established facts; or
·Those that clearly emerge from the material.
[42] NABE v Minister for Immigration & Multicultural & Indigenous Affairs [2004] 144 FCR 1
Whether a claim clearly emerges:
·Is not a finding to be made lightly;
·Must be based on facts which are established on the material before the Tribunal concerned;
·It is not an issue which can be determined axiomatically by reference to clearly delineated concepts. However, greater latitude, in this regard, will be given to unrepresented persons;
·It is not an issue to be determined in vacuo. Rather consideration should be given to how an applicant has presented his/her claims over time.
In Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs[43] the Full Court said as follows:
“The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
[43] Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593 at [47]
In AWG18 v Minister for Home Affairs Greenwood J indicated that the starting point of any judicial review in respect of a decision of the IAA is for the reviewing court:
“…to recognise that the reasons of the IAA must be read not only with a view to examining the process of reasoning in reaching a state of satisfaction (or not) about particular topics and particular evidence, but also read overall as an integrated whole.”
The reviewing task, set for the IAA, under the function conferred upon it, by section 473CC of the Act, was to determine whether the applicant in this case was entitled to be granted a protection visa on the basis that, amongst other factors, there was a real chance he would suffer significant harm, if returned to Afghanistan, either because of his actual mental illness or how such illness would be perceived by others in that country.
It is a trite but true exposition of the legal principles that the reviewing task does not entail a line by line analysis of the decision in question, particularly not one involving an eye keenly attuned to the perception of error at the expense of a fair reading of the reasons as a whole.[45]
[45] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
The central question for the court is whether a fair reading of the whole of the IAA’s reasons indicate that it did, in fact, misconstrue or overlook a central aspect of the applicant’s case, leading to a failure of jurisdiction. This essentially is a task of determining whether the IAA comprehended the claim for asylum put before it and the material on which it is based.
Again, in AWG18, Greenwood J expressed the task in the following lucid terms:
“…the IAA must properly comprehend a claim plainly put to it and, in the course of addressing that claim, it must address material factual matters put to it by an applicant in support of the material factual elements of the claimed fear of persecution. This is particularly so where the IAA, in conducting its review function, is doing so to determine whether it can reach a state of satisfaction, or not, about material matters leading to a conclusion about whether the claimed fear of persecution is well‑founded and the claim otherwise meets the requirements of the Act.
Discharging that function involves an examination by the IAA of matters of material factual evidence specific to an applicant. Also, the IAA will inevitably turn to, and seek to understand, matters of general importance in the jurisdiction in question and the conditions prevailing in places to which an applicant might return.” [46]
[46] AWG18 v Minister for Home Affairs (supra) at [124]–[125]
The task is intellectual and analytical in its nature.[47] It cannot rely on any requirement that the IAA itself has to engage in some kind of creative or constructive approach to the claim or claims being advanced before it.[48]
[47] See Chapman v Tickner (1995) 57 FCR 451 at 462
[48] See NABE v Minister for Immigration & Multicultural & Indigenous Affairs (supra) at [58]
Ground 1
It is the submission of counsel for the applicant, Ms Heidenreich that issues related to the applicant’s mental health arose squarely on the material before the IAA but these issues were only considered in a tokenistic or tangential fashion by the IAA, such that the claim was not properly considered by it, in any analytical or intellectual sense and therefore the jurisdiction of the IAA was not engaged.
In her written submission, Ms Heidenreich expressed her criticisms of the IAA decision in the following terms:
“After selectively summarising aspects of the Sobhanian Report and commenting upon the apparent absence of evidence that the Applicant was receiving ongoing medical treatment, the IAA Decision went on to comment upon the state of mental health in Afghanistan generally, rather than engaging with the substance of whether the Applicant’s mental health in this particular case is such as to lead to serious harm for the purpose of s.5J of the Act.
The IAA Decision fails to engage on the subject of what effect the Applicant’s mental health conditions may have in the context of his return to Afghanistan, including whether the Applicant faces the prospect of serious harm on account of his mental health status, taken together with his other specific characteristics as a Shia Hazara failed asylum-seeker.”[49]
[49] See Applicant’s written submissions filed 20 March 2020 at [35]–[36]
I do not agree. The IAA expressly accepted the essential aspect of the Sobhanian report, which was that the applicant suffered from depression and anxiety. It then went on to consider the implications of this condition in the context of other aspects of the case, as it had found them to be. It found that the applicant had sought out Ms Sobhanian for tactical reasons relating to the advancement of his claim for asylum rather than for therapeutic reasons. This is a finding of fact.
In this context, the IAA accepted that a return of the applicant to Afghanistan might be deleterious to the applicant’s mental health but noted that he had elected not to seek treatment for his condition in Australia. On this basis, the IAA found that there was not a real chance he would suffer psychological harm, if returned to Afghanistan. This finding was inter-twined with its finding regarding the applicant’s reason for seeking out Ms Sobhanian. In my view, it is essentially an issue of credit, which falls within the review function of the IAA.
The IAA also considered the applicant’s claim that he might be stigmatised, in some way, because of his mental illness, if returned to Afghanistan. In this context, the IAA made reference to country information available to it regarding the prevalence of mental illness in Afghanistan and noted again that, as the applicant was not seeking treatment in Australia and the remoteness of the possibility of anyone in Afghanistan becoming aware of the fact that he had previously consulted Ms Sobhanian, the risk of him suffering some form of harm from being characterised as being mentally ill was not significant.
In my view, a fair reading of the IAA’s decision does indicate that it intellectually and analytically engaged with each aspect of the applicant’s claim for protection on the basis of his mental health. It detailed his claims with some care. Ms Heidenreich asserts that there was no meaningful engagement with the matters raised by the applicant.
Again, I do not agree with this characterisation. In my view, the IAA did engage with the matters raised but not in an uncritical fashion. Rather, it chose to take a different view of the merits of the matters raised by the applicant. This was its prerogative. To reject a claim, on the basis of its credibility is a different thing to an assessment that an essential aspect of a claim has either been misconceived or overlooked.
In this case, the IAA detailed each aspect of the applicant’s claim arising from his claim of mental ill health, including in respect of the circumstances relating to his deceased natural and adoptive father. It considered the position of mentally ill persons in Afghanistan, including in the context of country information available to it. It rejected some aspects of the applicant’s case on findings of credit.
In my view, the reasons are comprehensive and all relevant issues have been identified by the IAA. As such, it cannot be said that any aspect of the claim has been overlooked or that the IAA has not engaged with the issue with sufficient rigour.
The problem with asserting that the IAA has failed to engage in a proper, genuine and realistic consideration of a claim for protection is that it impliedly requests that a reviewing court, such as this one, engage in the type of consideration urged by the relevant applicant, which is tantamount to the reviewing court conducting a merits re-hearing of the matter, which is impermissible.
In Minister for Immigration & Citizenship v SZJSS[50] the High Court approved an analysis which highlighted the risk of the expression proper, genuine and realistic consideration, when taken out of context, being utilised in a manner which was “apt to encourage a slide into impermissible merits review”.
[50] Minister for Immigration & Citizenship v SZJSS (2010) 243 CLR 164 at 175–176
In my view, this is the import of Ms Heidenreich’s submission. In asserting that the IAA’s approach to the claim lacked intellectual rigour or was only tangential or peripheral in its approach, she seeks that this court engage in a merits review of the IAA’s findings.
Ms Heidenreich is particularly critical of the paragraph of the decision in which the IAA sums up each aspect of the applicant’s claim prior to dismissing it in its totality.[51] She describes the IAA’s approach as a mere shopping list, which lacks the required degree of elucidation. I agree that it is a list of the applicant’s claim. I also agree that, in the relevant paragraph itself there is no analysis of the various matters listed there.
[51] See Case Book at page 877 [63]
However the summary comes after a lengthy analysis of each of the various aspects of the applicant’s claim, which comprises well over thirty pages. In my view, in these circumstances, the reasons of the IAA can only be described as being comprehensive. Each issue is identified in the preceding paragraphs of the decision. The shopping list paragraph serves as a compendium of what precedes it.
In these circumstances, I do not consider that the applicant has established any jurisdictional error in the terms envisaged in ground one of the notice.
Ground 2
Ground 2 is closely related to ground 1. Ms Heidenreich submits as follows:
“For the IAA to have properly carried out the complementary protection assessment according to law, it was required to consider whether, on the evidence before it, the act of returning the Applicant to Afghanistan would, necessarily and foreseeably, lead to a degeneration or a return of his mental health conditions in such a way that the Applicant, with his peculiar characteristics as a Shia Hazara failed asylum-seeker from the West, would subsequently face a real risk of significant harm.”
In this context, it is submitted that the paragraph in which the IAA found that the applicant would not face a real chance of suffering significant harm, as a consequence of his mental health issues, including being possibly stigmatised in this regard, has received no attention by the IAA other than in its dismissal.
In essence, it is submitted that the IAA failed to analyse, with sufficient intellectual clarity, what the degree of chance was that the applicant would suffer significant harm, as defined by section 36(2A), as a consequence of being identified as a person with a mental health illness. This was summarised by the applicant himself as being labelled as “brainsick” or “psycho”.
In my view, the reasons of the IAA, again when read as a whole, indicate that it did consider this issue and referred to it in its decision at some length.[52] The IAA accepted that reports available to it did indicate that such stigmata did attach to individuals, with mental health issues, in Afghanistan.
[52] Ibid at page 863 [40]
However, it did not accept, on the evidence available to it that such a characterisation was a possibility so far as the applicant was concerned because it presented as unlikely that the applicant would present himself, as such, in Afghanistan and further, there appeared to be little likelihood that anyone in his home locale, in Afghanistan, would be aware that he had sought support for his mental health, during the period in which he had been seeking asylum in Australia.
In my view, this does indicate an engagement with the issue. True it is that this analysis applies only to the first aspect of the applicant’s claim for refugee status, rather than under the complementary protection considerations, which are brief in nature.
However, in my view the process of reasoning in respect of the two issues is the same and in such circumstances it was not necessary for the IAA to repeat it. Once again, when the entirety of the IAA’s decision is read it provides a clear and intelligible path as to why the applicant was not considered to be subject to a real chance that he would suffer persecution, for any of the reasons advanced by him, including his mental health, nor liable to suffering significant harm under the complementary protection grounds.
For these reasons, the application must be dismissed. The first respondent seeks costs in the amount of $6,000 and the normal rule that costs follow the event should apply. In these circumstances, I will order that the applicant pay the first respondent’s costs fixed in the amount of $6,000.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and twenty four (124) paragraphs are a true copy of the reasons for judgment of Judge Brown.
Associate:
Date: 31 July 2020
[38] See Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
[44] AWG18 v Minister for Home Affairs [2020] FCA 744 at [81]
0
16
4