DMK17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 1058
Federal Circuit and Family Court of Australia
(DIVISION 2)
DMK17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 1058
File number: MLG 1681 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 21 December 2022 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant protection visa to applicant – whether Tribunal acted unreasonably or failed to exercise jurisdiction in relation to applicant’s claimed based on psychological health conditions – whether Tribunal reached a finding without a logical, rational or probative basis – whether Tribunal failed to take into account or give sufficient weight to material critical to the formation of the requisite state of satisfaction – whether Tribunal placed unreasonable weight on immaterial or minor matters – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 36, 476, 477 Cases cited: AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83; [2018] FCAFC 133
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146
Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210; [2016] FCA 516
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Division: Division 2 General Federal Law Number of paragraphs: 77 Date of hearing: 30 August 2022 Place: Perth Counsel for the Applicant: Mr B Overend Solicitor for the Applicant: WLW Migration Lawyers Counsel for the First Respondent: Mr A C Roe Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Clayton Utz ORDERS
MLG 1681 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DMK17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
21 December 2022
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
Introduction
Before the Court is an application filed pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act) by which the applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). On 31 July 2017 the Tribunal affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a Protection (Class XA) visa (protection visa).
By way of amended application, the applicant alleges that:
(a)the Tribunal acted unreasonably and/or constructively failed to exercise jurisdiction in finding that the applicant only had ‘some psychological problems’ and dismissing or overlooking the evidence of the harm the applicant would suffer if he returned to his home country while suffering post-traumatic stress disorder (PTSD) and major depressive disorder; and
(b)the Tribunal acted unreasonably, reached a finding without a logical, rational or probative basis, failed to take into account or give sufficient weight to material critical to the formation of the requisite state of satisfaction, and/or placed unreasonable weight on immaterial or minor matters.
For the reasons explained below, I find that the applicant has not established jurisdictional error in the Tribunal decision and I dismiss the application for judicial review.
Background
The applicant is a citizen of Pakistan who entered Australia in March 2014. He held a valid visa at the time of his entry.
On 10 April 2014 the applicant lodged an application for a protection visa. The applicant’s claims for protection were set out in a written statement that was subsequently provided to the Minister’s Department. The applicant claimed to fear being killed by the Taliban if he were to return to Pakistan due to his opposition of the Taliban and his involvement in his village’s lashkar (tribal militia).
Relevant to the grounds raised in this judicial review application, the applicant provided to the Department a medical certificate dated 23 April 2015, a report from his psychiatrist dated 28 April 2015 and a report from his psychologist dated 7 May 2015, which all indicated that the applicant suffers from major depressive disorder and complex PTSD.
On 11 December 2015 a delegate of the Minister made a decision not to grant the applicant a protection visa.
On 22 December 2015 the applicant lodged an application to the Tribunal seeking review of the delegate’s decision.
On 30 March 2017 the applicant and his representative attended a hearing convened by the Tribunal to give evidence and present arguments. The applicant’s treating psychologist also attended the hearing and gave evidence. On 13 April 2017 the applicant’s representative provided further submissions and evidence to the Tribunal. The additional evidence included a report from the applicant’s psychologist dated 3 April 2017.
The Tribunal affirmed the delegate’s decision on 31 July 2017.
Tribunal decision
The Tribunal expressed significant concerns about the credibility of the applicant’s claims and the veracity of the documentary evidence he provided in support of his claims. The Tribunal’s concerns are discussed in greater detail below, in the consideration of the applicant’s grounds of review.
Taking into account its concerns about the evidence, the Tribunal rejected the applicant’s claims that:
(a)in 2007 he had been abducted by a Taliban village commander and held captive and tortured for eight days for speaking out against the Taliban and refusing to give them donations;
(b)in early 2008 he received a letter from the Taliban threatening to harm him unless he stopped talking against them;
(c)he became a primary school teacher at a school in his home village;
(d)in 2008 he and another teacher drove girls to and from school in defiance of a Taliban ban on girls attending school and, after a few weeks, talibs stopped the vehicle, beat him and the girls and shot dead the other teacher;
(e)after he returned to his village in 2009 he became a member of the lashkar and a peace committee of his home village and took on responsibility for providing the names of talibs to the Pakistan army;
(f)in late 2013 the Taliban phoned him and warned they would soon target him and his family for providing the names of local talibs to the Pakistan army, and he therefore left his family in hiding with relatives in his home village and fled to Karachi;
(g)his family home was partially damaged because of Taliban arson while he was in Karachi; and
(h)his wife and family are targets of the Taliban and have been hiding and regularly moving between homes of relatives in fear of the Taliban.
Overall, the Tribunal found that the applicant had not in the past and will not in the future come to the adverse attention of the Taliban or other agents in Pakistan.
The Tribunal also considered the applicant’s psychological health conditions and was not satisfied that these conditions would lead to him facing a real chance of serious harm or a real risk of significant harm if returned to Pakistan. The Tribunal’s findings in relation to the applicant’s psychological health conditions are directly relevant to ground 1 and discussed in greater detail below in the context of that ground.
The Tribunal affirmed the delegate’s decision finding that the applicant did not meet the criteria in ss 36(2)(a) or 36(2)(aa) of the Migration Act.
Proceedings before this Court
The application to this Court was filed on 2 August 2017 which is within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act. The applicant filed an amended application on 2 August 2022.
The amended application raises the following two grounds:
1.The Tribunal acted unreasonably and/or constructively failed to exercise jurisdiction in finding that the applicant had only “some psychological problems” and dismissing or overlooking the evidence of the harm the applicant would suffer if returned to Pakistan whilst suffering post-traumatic stress disorder and major depressive disorder.
PARTICULARS
a.The Tribunal repeatedly found that the applicant only had “some psychological problems” (see at [61], [67], and [78]) despite unequivocal and unchallenged evidence that the applicant suffered from PTSD and major depressive disorder.
b.The Tribunal appeared to erroneously assess the applicant’s claims regarding the harm that he would face as a result of his mental health condition in the light of its findings on credibility (CB 408 at [69]-[70]). In doing so, the Tribunal failed to assess the applicant’s actual complementary protection claims (cited for example at CB 314 and further elaborated upon at CB 256-266).
2.The Tribunal erred by (a) acting unreasonably, (b) reaching a finding without a logical, rational or probative basis, (c) failing to take into account or give sufficient weight to material critical to the formation of the requisite state of satisfaction, and/or (d) giving unreasonable weight on immaterial or minor matters.
PARTICULARS
a.The Tribunal failed to consider or give significant weight to the relevant findings regarding the applicant’s credibility, including from psychologist Nitika Maharaj (at AB 144) that the applicant “is very consistent in his description of events and over time he has been able to talk about more, giving very personal responses to events and vivid sensory recall of significantly traumatic situations.”
b.The Tribunal’s “concerns” regarding the provenance and forms of key supportive documents provided by the applicant were based on facts or findings that were not relevant or held little probative value in determining the documents’ veracity, including that (at [18]-[19], and [39]-[42]):
i.the documents had been prepared and signed after the applicant’s entry to Australia,
ii.the documents did not support the applicant’s explanation of having left proof behind,
iii.that the applicant “quickly” discounted suggestions by the Tribunal and “appeared to give no real consideration to what other supporting evidence might be in existence in his village”,
iv.that the letters were in English,
v.that the applicant’s father had procured the documents,
vi.that the [village peace committee] Certificate had requested “your government” give the applicant safety,
vii.that they documents were “not from authoritative or independent sources” and were “not convincing”.
c.The Tribunal placed unreasonable weight on immaterial or minor matters relating to recounts of his abduction, including:
i.alleged inconsistencies regarding the arrangement undertaken by others (including his family) for his release from the Taliban (see at [35]), and
ii.the discrepancy between describing the location he was taken to as a house or a compound (at [35]).
d.The Tribunal failed to take into account or give sufficient weight to the applicant’s diagnoses of PTSD and major depressive disorder, in circumstances where these diagnoses were consistent with the events and fears described by the applicant, notably finding that the applicant had only “some psychological problems” (see e.g. at [59] and [67]).
The evidence before the Court comprised the court book and an affidavit of Tony Tran affirmed and filed on 4 August 2022 which annexes a transcript of the Tribunal hearing.
Consideration of ground 1
The applicant’s first ground asserts jurisdictional error in relation to the Tribunal’s treatment of the applicant’s claims insofar as they related to his diagnosed psychological conditions of PTSD and major depressive disorder. There are essentially two main complaints that the applicant makes. The first relates to the way in which the Tribunal has characterised the evidence in relation to the applicant’s diagnosed psychological conditions, and in particular the Tribunal’s reference to the applicant having ‘some psychological problems’. The second complaint made by the applicant is that by unreasonably ‘watering down’ the applicant’s evidence in relation to his psychological conditions in this way and failing to grapple with the specific evidence in more detail, the Tribunal constructively failed to carry out its statutory task in assessing the applicant’s claims to complementary protection based on his diagnosed psychological conditions.
In order to properly assess this ground, it is necessary to consider in some detail the manner in which the Tribunal addressed the applicant’s evidence and claims in relation to his psychological conditions.
The Tribunal first considered the applicant’s mental health under a subheading within a section of its reasons dealing with the assessment of the applicant’s credibility. From [23] to [27] of its reasons the Tribunal provided a lengthy summary of the evidence given by the applicant’s treating practitioners. At [28] the Tribunal observed that as the applicant had self-reported his past circumstances in Pakistan to his treating practitioners, the Tribunal did not take what he had told them as determinative of his credibility and the truthfulness of his narrative. At [29] the Tribunal made observations about the applicant’s appearance at the hearing and ability to recall details. The Tribunal then said at [30] and [31] (emphasis added):
30.In sum, I have given appropriate weight to the expert reports. Based on the reports, Ms Maharaj’s oral evidence and the applicant’s evidence, I accept that the applicant has some psychological problems. I accept that he has received ongoing treatment with mixed outcomes at different times. The evidence strongly suggests and I accept that his psychological problems are attributable to past life experiences (albeit I do not accept that his psychological problems are attributable to the particular occurrences he claims as I discuss later in this decision), depression, his unsettled circumstances and living conditions, social isolation, concern for his family, and his unresolved migration status. As well, I have considered the expert opinions about the effects on the applicant should he return to Pakistan and I note that particular emphasis is given to his stated fear of being harmed and that he would feel unsafe in Pakistan:
•Dr Dewani’s opinion that going back to Pakistan ‘will be fatal for him as per his safety and more detrimental for his emotional and psychological condition’.
•Ms Maharaj’s May 2015 opinion: “It is my belief that the threat that returning to Pakistan would impose on him, would severely affect his mental health.” “I am further concerned that a return to Pakistan will impact on his sense of safety and increase his distress and could trigger an acute stress response.”
•Ms Maharaj’s opinion at the hearing: ‘I don’t know the truth of the matter but his perception is that if he returns that will have an effect on his mental health’. His PTSD could not be effectively treated in Pakistan if he felt unsafe. He would be assisted if he lived with his family but the issue is him feeling safe.
•Ms Maharaj’s opinion post-hearing that a return to Pakistan would be highly likely to re-traumatize him, and trigger an acute stress response leading him to fall back into a major depressive disorder, and ‘A decision to not provide refugee status or return [the applicant] to Pakistan will impact significantly on [the applicant’s] mental health’.
31.The applicant and his representatives also submit that in light of the applicant’s particular needs and Pakistan’s under-developed mental health sector, the likelihood of him ‘surviving in Pakistan is not foreseeable nor reasonable’, and ‘Given his diagnosis of depression and PTSD, suicidal ideation and risk of suicidal intent if returned to Pakistan, the chance of serious harm outweighs the prospect of the applicant subsisting in Pakistan’. I do not accept these submissions as I later discuss.
The Tribunal at [32] acknowledged the applicant’s documented psychological health conditions and treatment and took this into account in assessing the evidence he gave at various times.
After addressing and making findings in relation to the applicant’s claims to have been harmed in the past and the reasons he claimed he would face harm from the Taliban in the future, the Tribunal returned to the applicant’s psychological health in its consideration of whether the applicant met the refugee criteria in s 36(2)(a) of the Migration Act. The Tribunal again referred to the applicant having ‘some psychological problems’ at [67] of its reasons, where it said (emphasis added):
In my credibility findings above I accept the applicant has some psychological problems based on the reports, Ms Maharaj’s oral evidence and the applicant’s evidence. In particular, Ms Maharaj states he still suffered from PTSD with significant difficulties with sleep, nightmares, suicidal ideation and lapses in concentration and memory. I accept that his psychological problems are attributable to past experiences and depression, his unsettled circumstances and living conditions, social isolation, and his unresolved migration status. The applicant and representatives submit the treatment he has accessed in Australia has assisted him but if he returned to Pakistan: he will lose his current support structures; it is highly likely to re-traumatize him and jeopardize his treatment and the gains he had made; his PTSD could not be effectively treated in Pakistan if he felt unsafe; and he will be unable to access any treatment in Pakistan.
The Tribunal then proceeded to make the following findings about the risk of harm to the applicant arising from his psychological conditions:
(a)the applicant may experience dislocation upon his return to Pakistan merely because of the journey in the process of readjustment;
(b)the applicant will lose his support network in Australia, but will immediately gain the very significant support of his wife and children, father and other extended family in Pakistan;
(c)the applicant will be returning to the familiar family home and to the close community in which he grew up, surrounded by close family and old friends and he will be familiar with the language, local social mores and village life, and having settled circumstances and living conditions without facing the social isolation he has faced in Australia;
(d)based on the Tribunal’s earlier findings, the applicant would not be returning to a place where he personally suffered harm at the hands of the Taliban or where he would fear Taliban retribution on his return, and consequently his sense of safety will not be severely compromised and he will not be re-traumatized or feel unsafe;
(e)there is not a real risk that the applicant will suffer symptoms any more serious than he has shown in Australia or other impairments on his return;
(f)the applicant will be able to source and access medical and mental health treatment and appropriate medicine in his home province now and in the reasonably foreseeable future if he chooses to seek such care; and
(g)the applicant’s medical and mental health conditions would not prevent or significantly hinder him from working if he returns to Pakistan.
The Tribunal then expressed the following conclusion at [72] to the effect that the applicant would not suffer serious harm upon return to Pakistan on account of his psychological health conditions (footnotes omitted):
In light of the foregoing and having particular regard to the applicant’s mental health needs here, the nature of the symptoms discussed in the reports and discussed by Ms Maharaj, and the applicant’s account of his psychological state- I am not satisfied the applicant will have psychiatric disorders that will attract the adverse attention of people in Pakistan such that they will seek to harm him. I am not satisfied that there is a real chance that his future condition will attract persecution that involves systematic and discriminatory conduct and involves serious harm- such as a threat to his life or liberty; significant physical harassment; significant physical ill-treatment; significant economic hardship that threatens his capacity to subsist; denial of capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist.
The Tribunal again considered the applicant’s psychological health in its consideration of the complementary protection criterion in s 36(2)(aa) of the Migration Act and said at [78] (emphasis added):
I accept the applicant may face dislocation when he returns to Pakistan, as he has not been there since January 2014. But in light of the foregoing I consider the applicant will be able to return to his family and family home without difficulties and make his way in life from the time he arrives. I accept the applicant has some psychological problems and may well continue to have this condition in Pakistan. I acknowledge that in Australia he manages to get a good level of support. But I do not accept that on his return to Pakistan he will be unable to access support as is claimed or that support would be denied him. In Pakistan psychological support and counselling albeit limited is available if he wants to access it, and in addition he will be returning to the close family support of his wife, children and other family. I am not satisfied that the applicant’s medical and mental health conditions will prevent or significantly hinder him from working when he returns home. He has worked in Pakistan as a seaman for many years and then worked as a cleaner in Australia. I do not accept that he will be unable to seek, get and maintain work. I am not satisfied the applicant will have psychological disorders that will attract the adverse attention of people in Pakistan such that he would face a real risk of significant harm.
As can be seen from the above summary and extracts, the Tribunal did at various times in its reasons refer to the applicant having ‘some psychological problems’. Counsel for the applicant submitted that it was unreasonable for the Tribunal to find that the applicant had only ‘some psychological problems’ and to repeatedly refuse to acknowledge the severity of the symptoms that the applicant suffers. The applicant complained that the Tribunal did not actually make any finding that he was ‘suffering’ from PTSD and the closest it came was a finding that he had been ‘diagnosed’ with PTSD, which ‘watered down’ the applicant’s psychological health conditions and did not accurately reflect the reality of his position. The applicant submitted that by describing his PTSD and major depressive disorder in this way the Tribunal overlooked critical material and dismissed or overlooked relevant claims that arose. At the hearing, Counsel for the applicant submitted that the phrase ‘some psychological problems’ covers a broad range of conditions of differing severity and, in circumstances where the applicant had been specifically described as suffering from ‘major depression and moderate to severe PTSD’ by his doctor, the Tribunal’s characterisation of the applicant’s psychological health conditions as ‘some psychological problems did not accurately reflect what the applicant was dealing with and how his claims needed to be considered.
The Minister submitted that the test for unreasonableness is necessarily stringent: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [11] (per Kiefel CJ), and that ‘for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, ‘extreme’ illogicality or irrationality must be shown’: CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146 at [60] citing Minister for Immigration and Border Protectionv SZUXN (2016) 69 AAR 210; [2016] FCA 516 at [52]. I accept the Minister’s submission that the Tribunal’s reference to the applicant having ‘some psychological problems’ falls well short of this threshold.
There is nothing unreasonable in the Tribunal’s characterisation or consideration of the applicant’s psychological health conditions. The Tribunal has used the phrase ‘some psychological conditions’ as a shorthand expression to describe the psychological health conditions that were discussed in the medical evidence provided to it on behalf of the applicant. It has not done this in a way that is dismissive of the applicant’s claims or that reflects a failure to understand the nature and significance of the evidence before it. Rather, when the reasons are read as a whole, it is clear that the Tribunal considered in detail the evidence before it in relation to the applicant’s psychological health conditions.
I further accept the Minister’s submission that the applicant is seeking to read the Tribunal decision with an eye keenly attuned to the perception of error, contrary to the well-known case of Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [30]. This is particularly so in relation to the distinction that the applicant seeks to draw between the Tribunal referring to the applicant being ‘diagnosed’ with PTSD, rather than ‘suffering’ from PTSD. In the context of the Tribunal’s reasons as a whole, no significance can meaningfully be placed on the Tribunal’s description of the applicant being ‘diagnosed’ with PTSD and major depressive disorder, rather than ‘suffering’ from those conditions.
It follows that I do not accept that the first limb of the applicant’s submissions in relation to ground 1 is established.
I then turn to the second limb, which is that the Tribunal constructively failed to consider the applicant’s complementary protection claims arising from his psychological health conditions.
In some ways, this second limb of the applicant’s ground is closely related to the first limb. For example, Counsel for the applicant submitted at the hearing that if the Tribunal failed to acknowledge that the applicant suffered from (as opposed to being diagnosed with) PTSD and major depressive disorder, with the symptoms indicated in the evidence, then there is no way that it could have properly assessed the risk or significance of any harm that the applicant would face as a result of being returned to Pakistan. As discussed above, I do not consider it to be an error for the Tribunal to refer to the applicant as having been ‘diagnosed’ with psychological health conditions rather than ‘suffering’ from psychological health conditions. Further, given the Tribunal’s detailed summary of the medical evidence and its consideration of the manner in which the applicant’s psychological health conditions may impact him on his return to Pakistan, I do not accept that the Tribunal constructively failed to consider the applicant’s claims on the basis that it did not properly acknowledge the severity of the applicant’s symptoms or because of the Tribunal’s description of the applicant’s psychological health conditions.
In other ways, some parts of the second limb of the applicant’s first ground are independent of the first limb. The submission is essentially that the applicant’s claim for complementary protection on the basis of his psychological health conditions exists regardless of whether the applicant’s narrative is accepted and survives any adverse credibility findings made by the Tribunal. The applicant submitted that the Tribunal erroneously assessed the harm the applicant would face on account of his psychological health conditions in the light of its findings on credibility and ignored the unchallenged evidence of the experts.
I do not accept that the Tribunal constructively failed to consider the applicant’s claims on this basis, or that its findings were unreasonable, illogical or irrational.
Having found that the applicant had not faced the harm he claimed from the Taliban in the past, and having rejected his claim to fear retribution from the Taliban in the future, it was open to the Tribunal to find that the applicant’s sense of safety would not be severely compromised and that he would not be re-traumatised or feel unsafe if returned to Pakistan. This finding was made in direct response to a submission highlighting that the applicant may face harm on account of his psychological health conditions, and should be viewed in the context of the Tribunal noting at [30] the ‘particular emphasis’ given by the applicant’s treating practitioners to his stated fear of harm and his claim that he would feel unsafe in Pakistan.
Further, the Tribunal’s consideration of the risk of harm the applicant would face on account of his psychological health conditions went well beyond any consideration of the merits of the applicant’s feelings that his safety would be compromised if he returned to Pakistan. As can be seen from the summary provided above in relation to the Tribunal’s consideration of the applicant’s psychological health, the Tribunal also considered the evidence relating to the particular concerns of the applicant in Australia and whether they would continue to be concerns in Pakistan (for example, the applicant’s unsettled migration status and social isolation), the respective support networks the applicant would be able to access in Australia and in Pakistan, the availability of medical treatment in both Pakistan and Australia and the impact of the applicant’s psychological health conditions on his ability to work and subsist. The Tribunal’s reasons in this regard showed that it carefully considered the expert evidence given by the applicant’s treating practitioners.
The Tribunal was not required to uncritically accept all of the evidence in the medical reports, and the weight to be given to the reports was largely a matter for the Tribunal as part of its fact finding function. The Tribunal has given careful and considered reasons to explain its consideration of the reports, including acknowledging that the reports are not determinative of the applicant’s credibility because they are based on what he self-reported, and by carefully considering the factors contributing to the applicant’s symptoms and the extent to which those factors would be relevant in Pakistan.
At the hearing, I asked the applicant’s Counsel to identify the evidence showing how the applicant’s complementary protection claims were advanced before the Department and Tribunal. I did this because it is not obvious to me the nature of the ‘significant harm’, as defined in s 36(2A) of the Migration Act, that the applicant claimed he would face on account of his mental health and I wanted to ensure that there is nothing in the manner in which the claims were advanced that was overlooked by the Tribunal.
Counsel for the applicant directed me to the applicant’s submission to the Tribunal, particularly the submissions at pages 371-372 of the court book under the heading ‘Mental Health and Relocation’, and in particular the opening sentence of that section which reads:
In view of our client’s particular needs and the Pakistan’s under-developed mental health sector, we submit that the likelihood of the Applicant surviving in Pakistan is not foreseeable nor reasonable.
I make two observations about this submission and the Tribunal’s consideration of this submission. First, the heading and some parts of the substance of the submission suggest that it is directed towards whether it would be reasonable for the applicant to relocate to a different area within Pakistan taking into account his psychological health conditions. However, reasonableness of relocation was not an issue that arose in the context of the decision made by the Tribunal, and so did not need to be addressed in that way. Second, to the extent that the submissions addressed the risk of harm more generally that the applicant may face due to his psychological health conditions if returned to Pakistan, the Tribunal clearly addressed these submissions at [67]-[72] of its reasons (summarised above).
The applicant in his written submission also referred to the manner in which his complementary protection claims were advanced at pages 314 and 256-266 of the court book. Page 314 is part of another submission made by the applicant to the Tribunal and relevantly asserts that the applicant is claiming complementary protection ‘[f]urther and in the legal alternative’ to his refugee claims. Pages 256-266 are also part of a submission made to the Tribunal on behalf of the applicant. Those pages also purport to address reasonableness of relocation and set out an extract of a Federal Court judgment in relation to the reasonableness of relocation. The submissions appear to be based in part on a misapprehension that the Tribunal had to determine whether it would be reasonable for the applicant to relocate to Pakistan, rather than addressing the circumstances where reasonableness of relocation arises under s 36(2B)(a) of the Migration Act. The submissions do not relevantly advance any claim that the applicant would face a real risk of significant harm on account of his psychological health conditions (as opposed to a submission that it would unreasonable for the applicant to relocate on account of his psychological health conditions).
The manner in which the applicant articulated his complementary protection claims to the Department and the Tribunal does not reveal any aspect of the complementary protection claim that the Tribunal failed to actually or constructively consider.
Ground 1 is not established.
Consideration of ground 2
Ground 2 essentially asserts jurisdictional error on the basis that the Tribunal’s findings in relation to credibility and the weight given to perceived inconsistencies in the applicant’s evidence are unreasonable, illogical or irrational or that the Tribunal has overlooked relevant evidence in reaching its credibility findings. The applicant relies on AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83; [2018] FCAFC 133 (AVQ15) at [41] as authority for the proposition that credibility findings can be amenable to judicial review on several grounds. I accept that findings relating to credibility can be subject to judicial review. It is useful to set out in full the summary of principles explained by the Full Court in AVQ15 at [41], to which I have had regard in considering the applicant’s ground:
For convenience, the principles which have relevance to the particular facts and circumstances here may be summarised as follows.
(a)The issue whether or not an administrative decision is affected by jurisdictional error requires a careful examination of the relevant statutory framework, with a particular emphasis on provisions which determine the decision-maker’s powers, procedures, functions and obligations.
(b)While findings as to credit are generally matters for the administrative decision-maker, they may be amenable to judicial review on several grounds including legal unreasonableness, reaching a finding without a logical, rational or probative basis, failure to perform the required statutory task of review, and failure to take into account material critical to the formation of the requisite state of satisfaction.
(c)Whether or not a credibility finding is affected by jurisdictional error is a case specific inquiry, and should not be assessed by reference to fixed categories or formulae. Merely because a decision-maker has ignored “relevant material” does not always give rise to jurisdictional error in the present context. The importance or cogency of the material, its place in an assessment of the appellant’s claim and in the performance of the statutory task are matters of fundamental importance in a protection visa case. Those matters inform an assessment of the seriousness or gravity of the error.
(d)Even if an aspect of reasoning, or a particular finding of fact, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result (such as, for example, where it is but one of several findings that independently may have led to the ultimate decision).
(e)Merely because there is no reference in the decision-maker’s reasons for decision to particular material does not necessarily give rise to an inference that the material was not considered. Nonetheless, in the case of the Tribunal, which is required by s 430 of the Act to make a written statement setting out its reason for decision and its findings on material questions of fact, and to refer to the evidence on which such findings were based, a failure to refer to evidence that on its face bears on a finding may indicate that that evidence has not in fact been considered and, in some cases at least, disclose jurisdictional error in the decision-making (see Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [10] per Gleeson CJ).
(f)Considerable caution must be exercised before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional error, in order to avoid judicial review transgressing into the impermissible area of merits review.
It should also be remembered, as discussed above, that the threshold for establishing illogicality, irrationality or unreasonableness is high. The tests for illogicality and irrationality were explained by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 where their Honours said at [131] and [135]:
131.…The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
135.…Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn….
There are four particulars to ground 2, which identify a number of findings relevant to the Tribunal’s assessment of the applicant’s credibility that the applicant asserts were unreasonable, illogical or irrational.
Both parties in their submissions have referred to the need to consider the evidence cumulatively or as a whole. Counsel for the applicant submitted that a credibility assessment is cumulative and that each time the Tribunal assessed the applicant’s evidence as implausible, lacking in knowledge, inconsistent and so forth, it builds on top of each of the other findings. The Minister’s main submission was that each of the credibility findings challenged by the applicant fell well short of the high standards required to establish legal unreasonableness, irrationality or illogicality. The Minister submitted that the applicant is seeking to read the Tribunal reasons with an eye keenly attuned to the perception of error. The Minister submitted that even if this were permissible, jurisdictional error would not be established because, in part, the applicant has only referred to some of the adverse credibility findings made by the Tribunal and has completely disregarded a number of further adverse credibility findings made by the Tribunal.
In reaching my conclusions I have remained mindful of these submissions about the reading of the reasons as a whole made by both the applicant and the Minister. I set out below some observations on the specific and individual instances of unreasonableness, irrationality, illogicality or other jurisdictional error identified in the particulars. I do not accept that the adverse credibility findings made by the Tribunal either individually or when considered collectively give rise to jurisdictional error in the Tribunal decision.
Particular (a)
By particular (a), the applicant asserts that the Tribunal failed to consider or to give sufficient weight to the comments made by his psychologist in relation to his credibility. The particular finding referred to in the applicant’s submissions was that the applicant’s psychologist said that he is ‘very consistent in his description of events and over time he has been able to talk about more, giving very personal responses to events and vivid sensory recall of significantly traumatic situations’. The applicant submitted that this particular observation went directly to the key issue of his credibility, was made by a credible professional who was available and gave evidence at the hearing and who was better placed than other witnesses to assess his credibility. The applicant submitted that this credibility finding should have held particular prominence in the Tribunal’s deliberations.
The Minister submitted that it was open to the Tribunal to place little weight on the impressions of the medical witnesses regarding the applicant’s credibility, as those impressions were necessarily based on the applicant’s self-reporting to the treating practitioners. The Minister further submitted that it was open to the Tribunal to make the finding that it did given the significant concerns that it had about the applicant’s credibility overall. I accept the Minister’s submissions.
The Tribunal explained at [28] that it did not take what the applicant had told the medical experts about his past circumstances in Pakistan to be determinative of his credibility and the truthfulness of his narrative because the applicant’s past circumstances had been self-reported. The Tribunal did not refer specifically to any assessment in the reports about the applicant’s credibility but I do not consider that this amounts to jurisdictional error for the following reasons.
First, Ms Maharaj’s observation that the applicant was consistent in his description of events is sufficiently addressed by the Tribunal’s comments that the applicant’s self-reported narrative to the health experts is not determinative of his credibility or the truthfulness of his narrative. It was open to the Tribunal to give little weight to the applicant’s treating practitioners’ assessment of his credibility for this reason.
Second, the Tribunal was required to form its own assessment of the applicant’s credibility as part of its fact-finding function, and it did this taking to account the materials before it.
Third, the Tribunal had available to it further evidence which may not have been available to the applicant’s treating practitioners. For example, it is unlikely that the treating practitioners had access to all of the documents provided by the applicant in support of his claims and country information that may be relevant to the assessment of the applicant’s claims.
Particular (b)
Particular (b) concerns the Tribunal’s treatment of documents provided by the applicant to support his claims. At [17] of its reasons, the Tribunal noted that the applicant had provided documents, mainly letters, from various sources in Pakistan to support his claims. When assessing the weight to be given to the documents, the Tribunal took into account a range of considerations including the format of the documents, provenance, when the documents were dated and provided, consistency, and its assessment of the applicant’s credibility. The Tribunal also had regard to country information suggesting that in Pakistan false and forged documents are prevalent and easily obtained. The Tribunal discussed its concerns in relation to the documents provided by the applicant at [18] and [19] of its reasons, where it said:
18.Of the documents provided, the following were particularly relevant to his narrative: the [village peace committee] Certificate dated 17 April 2014; Death Certificate for [the applicant’s colleague at the school the applicant claimed to have worked at] dated 4 May 2016; Letter from the Principal of [the school] dated 22 April 2014; Statement from [the Head of Councillors] of [the local village council] Village Council dated 1 January 2017. The documents including those called certificates are in letter form and as they are not official documents cannot be compared against other similar official documents for consistency. However, I have concerns with the provenance and form of the documents overall. As I discussed at the hearing, based on their dates all of the documents he provided to support his claims were prepared after he arrived in Australia. He explained this was because when he came to Australia he had left any proof behind in Pakistan and so he got the father to gather and send proof. He had previously claimed there was a house fire that destroyed the Taliban threat letter and so he no longer had that piece of evidence. However, that all of the documents had been prepared and signed after the applicant’s entry to Australia and none were contemporaneous with the events they discussed, did not support his explanation of having left proof behind. As well, when I explored what other evidence he might be able to access such as evidence of his claimed many years as a teacher, he quickly discounted each of my suggestions and appeared to give no real consideration to what other supporting evidence might be in existence in his village.
19.At the hearing the applicant stated that he had told his father what documents he needed and the father had procured them from people in the village. But as I pointed out, every letter was in English despite each document having ostensibly been prepared by a different villager in a small village in rural Pakistan. The applicant explained there are many educated people in the village, but I note the applicant’s evidence at the hearing that he did not have English language ability at the time he left Pakistan despite his claimed work as a teacher. In sum, the letters unusually all in English, prepared months or years after the applicant had last been in the village, and at the behest of the applicant/father for the purposes of supporting the applicant's refugee matter in Australia (indeed the [village peace committee] Certificate even requests that “your government” give him safety) are not from authoritative or independent sources and are not convincing.
The Tribunal later referred to the issues identified in these paragraphs as its ‘overall concerns’ with the documents and expressed more specific concerns about particular documents at [39]-[42]. In his written submissions, the applicant identified that each of the matters raised in the subparagraphs of particular (b) was a concern expressed at [18] or [19].
The applicant submitted that the observations or findings made by the Tribunal identified in particular (b) were either irrelevant or held limited probative value in determining the veracity of the particular documents. In relation to each of the Tribunal’s findings complained of, the applicant made the following submissions:
(a)The documents had been prepared and signed after the applicant’s entry to Australia: The applicant submitted that his explanations were consistent with the documents being prepared and signed after his entry to Australia and, specifically it was consistent with his explanation that he did not have the documents when he arrived in Australia and contacted his father in order to procure them.
(b)The documents did not support the applicant’s explanation of having left proof behind: The applicant did not suggest that he left the specific documents behind but rather that he left proof behind. The applicant submitted that leaving proof behind says nothing about the veracity of the documents.
(c)The applicant ‘quickly’ discounted suggestions by the Tribunal and ‘appeared to give no real consideration to what other supporting evidence might be in existence in his village’: The applicant submitted that whether or not he quickly discounted suggestions by the Tribunal regarding other evidence that he might be able to obtain says little if anything about the veracity of these particular documents.
(d)The letters were in English: The applicant submitted that English is one of the national languages of Pakistan and that the documents were in English was consistent with the applicant’s explanation that there were numerous people within the area who were literate in English. The applicant also submitted that it would not be surprising if the documents were requested to be in English given their intended use in an English-speaking country.
(e)The applicant’s father had procured the documents: The applicant submitted that the fact his father procured the documents says nothing about the veracity of the documents.
(f)The [village peace committee] Certificate had requested ‘your government’ give the applicant safety: The applicant submitted that the request that ‘your government’ give him safety says little if anything about the veracity of the document. The applicant submitted that the inclusion of such a phrase would be consistent with the father procuring further documents at the request of the applicant and explaining to the author the intended use of the document.
(g)The documents were ‘not from authoritative or independent sources’ and were ‘not convincing’: The applicant submitted that the Tribunal’s opinion that the documents were not from authoritative or independent sources says little if anything about the veracity of the particular documents. The applicant further submitted that the assertion that they are not convincing is merely a bald assertion and not a probative basis on which to determine the veracity of the documents.
I do not accept that any of these findings or the overall conclusion reached by the Tribunal in relation to the documents is illogical, irrational or unreasonable. While other decision-makers may have assessed the documents differently, the Tribunal has provided a logical explanation for why it had concerns about the documents and did not place significant weight on them.
It is important to read the Tribunal’s reasons as a whole and in context in relation to its concerns with the documents, and not to read individual observations in isolation. For example the matters that are considered at paragraphs (a), (b) and (c) of [58] above all relate to the Tribunal’s findings at [18] of its reasons and need to be considered together and in the context of the concerns expressed by the Tribunal at [17] and [18] about the considerations it took into account in assessing the weight to be given to the documents and its concerns about document fraud in Pakistan.
It is clear that the Tribunal was concerned about the lack of evidence that was contemporaneous with the events discussed in the letters. Instead of providing evidence that was contemporaneous with the events that are the subject of the applicant’s claims, the letters provided by the applicant were all documents that were created after the applicant arrived in Australia. The logic underpinning the Tribunal’s reasoning appears to be that greater weight would be afforded to documents that were contemporaneous with the events they discussed.
The Tribunal does not appear to doubt that the documents were created at the request of the applicant after he arrived in Australia and so the applicant’s submission that the documents were consistent with his explanation that the documents were prepared after his entry does not assist him to establish jurisdictional error.
The Tribunal’s comment that the documents do not support the applicant’s explanation of having left proof behind also needs to be seen in its proper context. There is nothing in the Tribunal reasons to suggest that the Tribunal thought that the applicant had left behind these particular documents, which did not exist at the time he left Pakistan. Rather, the Tribunal considered the applicant’s explanation for not having contemporaneous evidence of the events that he claimed occurred and noted his submission that he had left ‘proof’ behind. The only contemporaneous piece of evidence that the applicant claimed had once existed was a letter from the Taliban that the applicant claimed had been destroyed in a house fire. Although not expressly stated, when the reasons are read in context, the gist of the Tribunal’s concern appears to be, in part, that the applicant said he left proof behind, which implies some sort of documentary proof existed at the time he left Pakistan, but has not provided any of that evidence to the Tribunal, and instead only provided evidence that was created after his arrival in Australia.
As a general proposition, there is some merit in the applicant’s submission that whether or not he quickly discounted suggestions by the Tribunal about other evidence that he might be able to obtain says little about the veracity of the documents before the Tribunal. However, the submission overlooks the relevant context in which the Tribunal expressed its concerns, namely, that the Tribunal was troubled by the complete lack of contemporaneous evidence and this caused it to place less weight on the evidence that was provided. The Tribunal’s observation at [18] that the applicant was quick to discount the Tribunal’s suggestions of other evidence that might be available needs to be read with the Tribunal’s reasons at [41]. At [41] the Tribunal summarised its discussion with the applicant about the possible existence of other evidence to support his claims. In response to the suggestions made by the Tribunal, the applicant explained that there were no photos of him teaching, private schools did not give the teachers any documents that showed they were teachers, there were no papers that showed he had worked as a teacher and no employment contract, he was paid cash and no payslip was ever given, the school did not give him a reference when he left his employment and there is no document recording the termination of his employment. The Tribunal rejected this evidence and did not believe that the applicant or the school would not have produced any document showing the applicant’s employment or its termination during his claimed eight-year tenure as a teacher that ended when a fellow teacher was murdered. Again, while a different decision-maker may have reached a different conclusion, the findings made by the Tribunal were open to it and were not illogical, irrational or unreasonable.
The applicant’s submissions regarding the Tribunal’s concern about the documents being in English overlooks the key reasoning of the Tribunal in this regard. The Tribunal took into account the applicant’s explanation that there were many educated people in the village. The Tribunal’s concern appears to be that every single letter ostensibly prepared by a different villager in a small village in rural Pakistan was in English. The Tribunal also noted the applicant’s evidence that despite his claim that he worked as a teacher, he did not have English language ability at the time he left Pakistan. The reasoning of the Tribunal in relation to the documents being in English should also be read with the Tribunal’s reasoning at [39] in relation to a particular letter from a school that he taught at. The Tribunal records that when it queried why the letter was in English, the applicant responded that in private schools the teachers mainly use English. That the applicant did not speak English undermined his claim to be a teacher.
The final three findings complained of by the applicant referred to at (e), (f) and (g) of [58] above can also be considered together. They all arise from the Tribunal’s summary of its concerns in the final sentence of [19] of its reasons. It was open to the Tribunal to place less weight on documents that had been prepared months or years after the applicant had last been in the village and which had been created for the purpose of supporting his claims to be a refugee. It was also open to the Tribunal to place less weight on documents that were not from authoritative or independent sources. The Tribunal’s comment that the evidence was not convincing is a summary based on all of its concerns previously expressed and not a ‘bald assertion’ as suggested by the applicant. There is nothing illogical, irrational or unreasonable in the findings that the Tribunal made in the concerns it expressed about the applicant’s documentary evidence, or the weight that it gave to that evidence.
Particular (c)
Particular (c) relates to the account the applicant gave of his abduction and asserts that the Tribunal placed unreasonable weight on immaterial or minor matters such as the alleged inconsistencies regarding the arrangement undertaken by others for his release from the Taliban and the discrepancy between describing the location he was taken to as a house or a compound.
The Tribunal’s relevant findings were made at [35] where the Tribunal said (footnotes omitted):
At the delegate's interview and at the hearing he gave evidence that followed this broad narrative of abduction. But he has given changeable evidence about significant details of this claimed occurrence. As the delegate’s decision shows, at the delegate’s interview he spoke of being abducted by talibs but after a lengthy discussion did not claim that the Taliban Village Commander … had been involved. A submission of 30 March 2017 addressed this by saying the applicant had a clear recollection of the occurrence and named [the Taliban Village Commander] and 3 talibs, and submitted his response “may have been caused by the use of the Afghani interpreter”. But as discussed above, based on the applicant’s evidence about how the delegate’s interview proceeded I consider that any interpreting difficulties had been resolved at the time as the interview progressed. At the hearing when I put to him he had not mentioned the Village Commander at the delegate’s interview he explained he does not remember a lot of the time. Yet, a very significant element of this claimed occurrence and of the applicant’s overall narrative of hating the Taliban had been that the village Taliban commander had orchestrated the applicant’s abduction, detention and torture. It was not a minor detail. As well, the applicant’s narrative had been that the Taliban commander and his group took the applicant to their compound to be imprisoned. But at the hearing and delegate’s interview he described being taken to a villager’s house in the village that he said the Taliban had seized by force. When I queried this difference he merely said the house was the Taliban compound. However, as I pointed out, a villager’s house in the village seems quite different to a Taliban compound. And when I asked further questions about the house he at first said he knew the villager whose house he was taken to and they were still living there at the time, before later saying the family did not live there. Other of his evidence about this occurrence raises strong concerns. At the hearing the applicant’s evidence was that the wife and their child personally approached the Taliban as soon as he had been taken but were sent away, and then the wife and child personally returned after eight days and persuaded the Taliban to release him. But as I pointed out to him this is quite different to his earlier narrative that he was released after eight days when ‘later on my family through their contacts contacted the Taliban and upon their insistence I was set free from custody’. In the following discussion after I put my concerns, it was only after I made the observation that the negotiator in such circumstances would have been a male member of the family or some village authority did the applicant then say there had been villagers present too. However, in light of his earlier account in the hearing where he only spoke of his wife and child personally negotiating with the Taliban on two occasions, I find unpersuasive this late explanation only made after my observation. The changeable accounts he has given at times about who abducted him, where he had been taken, and how he came to be released raise strong concerns with his narrative and evidence, and his credibility as a witness.
It can be seen from this that the Tribunal’s concerns identified in the subparagraphs to particular (c) were not the only concerns that the Tribunal had about the applicant’s narrative in this regard. I do, however, acknowledge that the applicant also addressed, in his submissions to the Court, the Tribunal’s concerns about his failure to identify the village commander in his oral interview, notwithstanding that it was not referred to in the particulars.
The applicant challenges the weight given to the inconsistencies identified on the basis that:
(a)the applicant had no first-hand knowledge of any negotiation for his release from the Taliban because at the time of the negotiation he was kidnapped and being tortured and it therefore this was not a matter that could carry significant probative value in relation to the applicant’s credibility;
(b)in any event it could reasonably have been inferred from the applicant’s responses that his family arranged his release with assistance from persons in the village;
(c)it is perfectly reasonable to suggest that a Taliban compound may be constituted by a house occupied by Taliban officers; and
(d)the applicant had referred to the name of the village commander and identified him as a person involved in his abduction and torture early in the application process and the failure of the applicant to mention him in a stressful and challenging interview, particularly for someone suffering from mental health conditions, should have been given little weight.
In my view, the Tribunal reasons at [35] do not disclose any illogicality, irrationality or unreasonableness. The applicant provided to the Court an explanation as to why the Tribunal should have attached different weight to his evidence. It no doubt would have been open to the Tribunal to place different weight on the applicant’s evidence, but that is not the question for determining whether the reasons are illogical, irrational or unreasonable. On all the evidence before it, and in the context of the Tribunal’s reasons as a whole, it was open to the Tribunal to place weight on the inconsistencies and discrepancies that it identified at [35] of its reasons. A logical or rational decision-maker could have reached the same view as the Tribunal on the evidence before it.
Particular (d)
Particular (d) again refers back to the applicant’s psychological health conditions. The applicant by this particular asserts that the Tribunal failed to take into account or give sufficient weight to his diagnoses of PTSD and major depressive disorder in circumstances where the diagnoses were consistent with the events and fears described by him.
In his oral submissions, Counsel for the applicant acknowledged that the suffering of the psychological conditions does not of itself confirm that the traumatic events described by the applicant did in fact occur. However, the applicant submitted that the medical evidence explained the diagnosis in the context of the applicant experiencing symptoms such as flashbacks and recurring nightmares that arose after suffering the traumatic events that the applicant claimed occurred. The applicant submitted that the Tribunal erred by concluding, without any other probative evidence to explain why the applicant would be suffering from those conditions, that his psychological health conditions were merely attributable to ‘past experiences and depression, his unsettled circumstances and living conditions, social isolation, and his unresolved migration status’. The applicant submitted that such a finding was not supported by the medical evidence provided.
I do not accept that the Tribunal failed to take into account or give sufficient weight to the applicant’s psychological health conditions. That the applicant experienced symptoms and has a diagnosis of PTSD which is consistent with having experienced a past traumatic event does not mean that it was unreasonable or illogical or irrational for the Tribunal not to be satisfied that the particular traumatic event claimed by the applicant did in fact occur. As discussed above, the Tribunal was obliged to consider for itself the applicant’s credibility and to assess and make findings of fact about the applicant’s claims. The Tribunal was clearly aware that the applicant had been diagnosed with PTSD as it considered his psychological health conditions, including the diagnoses, at length throughout its reasons. The weight that it gave to the applicant’s evidence and that of his treating practitioners in relation to his psychological health was a matter for the Tribunal to determine and the Tribunal has given a plausible justification as to the reasons for rejecting the applicant’s claims to have been harmed by the Taliban in the past.
I do not accept the applicant’s submission that there was no basis for the Tribunal to attribute the applicant’s psychological health conditions to past experiences and depression, unsettled circumstances and living conditions, social isolation and his unresolved migration status. These matters were all referred to in the medical reports provided by the applicant to the Tribunal. While it may have been open to reach different findings on the basis of the medical evidence, I do not accept that the findings made by the Tribunal were unreasonable, illogical or irrational.
None of the particulars to ground 2 establish jurisdictional error in the Tribunal decision.
Conclusion
Given my conclusion that the applicant has not established jurisdictional error in the Tribunal decision, it follows that the application for judicial review must be dismissed.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 21 December 2022
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