DRO18 v Minister for Home Affairs

[2024] FedCFamC2G 418

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DRO18 v Minister for Home Affairs [2024] FedCFamC2G 418

File number:

MLG 2056 of 2018

Judgment of:

DEPUTY CHIEF JUDGE MERCURI

Date of judgment:

10 May 2024

Catchwords:

MIGRATION LAW – application for judicial review – decision of the Administrative Appeals Tribunal – Protection (subclass 866) visa – where Tribunal made adverse credibility findings – country of reference found by Tribunal to not be as claimed – whether Tribunal imported an inappropriate element onto the ‘real chance’ test – whether country information reveals error in application of test – no error by the Tribunal in the application of the ‘real chance’ test – whether Tribunal erred in failing to consider applicant’s mental ill health as a cause of discrimination or stigmatisation – Tribunal gave consideration to claims of applicant’s mental ill health as they arose on the material – where Tribunal relied on reasoning in relation to refugee criteria to make a finding in relation to complementary protection criteria – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss 36(2)(a) and (aa)

Cases cited:

BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 189

CGA15 v Minister for Home Affairs [2019] FCAFC 46

Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17

Division:

Division 2 General Federal Law

Number of paragraphs:

71

Date of last submissions:

13 March 2024

Date of hearing:

13 March 2024

Place:

Melbourne

Counsel for the Applicant:

Ms K Grinberg

Solicitor for the Applicant:

Victoria Legal Aid

Counsel for the First Respondent:

Ms H Hofmann

Solicitor for the First Respondent:

Clayton Utz

The Second Respondent:

Submitting appearance, save as to costs

ORDERS

MLG 2056 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DRO18

Applicant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:	10 MAY 2024

THE COURT ORDERS THAT:

1.The applicant’s application be dismissed.

2.The applicant pay the First Respondent’s costs.

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

DEPUTY CHIEF JUDGE MERCURI:

INTRODUCTION

1. Before the court is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 19 June 2018.  By its decision, the Tribunal affirmed a decision of a delegate of the Minister for Home Affairs (‘the Minister’) to refuse to grant the applicant a Protection (Subclass 866) visa (‘protection visa’).

   BACKGROUND

2. The applicant was born in Somalia, held both Somalian and Kenyan passports, and is of Somali ethnicity and Muslim religion.[1]  He arrived in Australia in September 2009 on a student visa.[2]

   [1] Court book at page 14.

   [2] Court book at page 15.

   Application for a protection visa on 3 February 2014

3. The applicant applied for a protection visa on 3 February 2014.[3]

   [3] Court book at pages 1 to 32.

4. In his protection visa application, the applicant claimed that he fled Somalia at age 5 during the civil war.  Thereafter, he and his family resided in a refugee camp in Kenya, where he feared harm from criminal gangs and police due to his Somali ethnicity.[4]

   [4] Court book at pages 20 to 21.

5. By letter dated 19 March 2015, the applicant, via his representative, was invited to attend a protection visa interview with the Department of Immigration and Border Protection.[5] 

   [5] Court book page 128.

6. On 2 December 2015, the delegate refused the applicant’s application for a protection visa.[6]

   [6] Court book at page 143.

   Application for review by the Tribunal on 17 December 2015

7. On 17 December 2015, the applicant sought a review of the delegate’s decision in the Tribunal.[7]

   [7] Court book at pages 162 to 163.

8. By letter dated 6 December 2017, the applicant was invited to attend a hearing before the Tribunal.  The hearing was re-scheduled to 8 February 2018.[8]  Prior to the Tribunal hearing, the applicant’s representative filed submissions, a statutory declaration, and a statutory declaration by a friend of the applicant’s father.[9]

   [8] Court book at pages 202 and 213.

   [9] Court book at page 224.

9. The applicant and his representative attended the Tribunal hearing, as well as the applicant’s father who attended by telephone.  A Somali interpreter was also in attendance.[10]  Subsequent to the hearing, the applicant’s representative lodged a number of documents with the Tribunal, including further submissions, medical reports, identity documents and further protection claim details.[11]

   [10] Court book at page 270.

   [11] Court book at page 311.

10. On 16 March 2018, the applicant was invited by the Tribunal to respond to adverse information regarding his Kenyan nationality and citizenship, wherein it was suggested that such information ‘may cause the Tribunal to find [he is] a citizen of Kenya and to assess [his] claims against that country’ as well as ‘to doubt the truthfulness of your evidence’.[12]

    [12] Court book at pages 385 and 386.

11. In response to the invitation, the applicant, via his representative, lodged further submissions on 3 April 2018.[13]

    [13] Court book at page 388.

12. Further documentation obtained by the applicant under the Freedom of Information Act 1982 (Cth) was also lodged with the Tribunal on 8 June 2018, together with further written submissions.[14]

    [14] Court book at page 404.

13. By letter dated 20 June 2018, the Tribunal notified the applicant of its decision to affirm the delegate’s decision refusing the applicant’s protection visa.

    TRIBUNAL DECISION

14. The Tribunal’s decision record is set out at pages 456 to 468 of the court book.

15. At the commencement of its reasons, the Tribunal set out at paragraphs [2] and [3] the applicant’s background and protection claims, before going on to identify the issue before it at paragraph [4], that issue being whether the applicant meets any of the criteria in sections 36(2)(a), (aa), (b) or (c) of the Migration Act 1958 (Cth) (‘the Act’).

16. The Tribunal went on to set out the history of the proceedings before it, including reproducing the invitation sent to the applicant on 16 March 2018 pursuant to section 424A of the Act.[15]

    [15] Tribunal decision record dated 9 June 2018 at paragraph [9].

17. The Tribunal gave comprehensive consideration to the applicant’s claims and evidence, and ultimately found the applicant’s explanation as to his fraudulent Kenyan identity documents not to be credible and concluded that he was, in fact, a national of Kenya and not Somalia.[16]  Consequently, the Tribunal assessed the applicant’s protection claims against Kenya only, although the Tribunal did accept that the applicant was of Somali race and Muslim religion.[17]

    [16] Tribunal decision record dated 9 June 2018 at paragraphs [17] to [29].

    [17] Tribunal decision record dated 9 June 2018 at paragraphs [28] to [33].

18. The applicant’s race, religion, political opinion and membership of particular social groups, including ‘Somalis living in Kenya’ and ‘persons in Kenya suffering from mental illness’, were considered by the Tribunal, those being the relevant ‘refugee’ criterion under the Refugees Convention and section 36(2)(a) of the Act. Further, the Tribunal considered whether the cumulative effect of these characteristics may result in a real chance that the applicant will suffer serious harm in Kenya. The Tribunal found that it did not.[18]

    [18] Tribunal decision record dated 9 June 2018 at paragraphs [50] to [52].

19. Similarly, the Tribunal did not accept that the applicant was a person in respect of whom Australia owed protection on complementary protection grounds, by virtue of there being no substantial grounds to believe that upon returning to Kenya, there was a real risk that the applicant would suffer significant harm.[19]

    [19] Tribunal decision record dated 9 June 2018 at paragraphs [53] to [59].

    PROCEEDINGS IN THIS COURT

20. On 16 July 2018, the applicant filed his application for judicial review of the Tribunal’s decision.  On 14 February 2024, now legally represented, the applicant filed an amended application with two grounds of review, each particularised.

21. By his amended application, the applicant seeks orders:

    (a)quashing the Tribunal’s decision;

    (b)directing the Tribunal by a writ of mandamus to determine the applicant’s application according to law; and

    (c)injuncting the Minister or Department from ‘making the future decision or taking the other action the subject of the proceedings’.

    GROUNDS OF REVIEW

22. As stated, by his amended application filed on 14 February 2024, the applicant relies upon two grounds of review.

23. I will consider each of these grounds in turn.

    Ground 1

24. By ground 1, the applicant claims that:

    1.The Tribunal erred by failing to properly apply the ‘real chance’ test in considering whether the applicant had a well-founded fear of persecution related to arbitrary arrest and detention due to his Somalian ethnicity and Muslim religion.

    Particulars

    a.The applicant claimed to be at risk from the Kenyan authorities due to his Somali ethnicity and religion.

    b.The Tribunal accepted that the applicant was identifiable as being of Muslim religion and Somali race throughout Kenya.

    c.The Tribunal accepted that the targeting of people of Muslim religion and Somali ethnicity for arbitrary arrests and detentions occurred in Somalia.

    d.The Tribunal did not accept that such actions were ‘so frequent’ or ‘prevalent’ as to create a real chance that the applicant would be harmed.

    e.In requiring the incidents to be ‘so frequent’ or ‘prevalent’ in order to create a real chance of harm, the Tribunal wrongly applied the real chance test.

25. There was no dispute between the parties as to the principles to be applied in determining whether there is a ‘real chance’ that an applicant will suffer harm as identified in Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62 and as extracted by Justice Murphy in BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 189 (‘BJO18’).[20] 

    [20] Applicant’s Outline of Submissions filed on 14 February 2024 at paragraph [24].

26. At [117] in BJO18, Murphy J relevantly said:

    … For present purposes it suffices to note that in Chan Yee Kinv Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Mason CJ said at 389:

    … If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring.

    Dawson J said at 398 that a “real chance is one that is not remote regardless of whether it is less or more than 50%”.

    Toohey J said at 407:

    The test suggested by Grahl-Madsen, “a real chance”, gives effect to the language of the Convention and to its humanitarian intendment.  It does not weigh the prospects of persecution but, equally, it discounts what is remote or insubstantial.  It is a test that can be comprehended and applied.

    McHugh J said at 429:

    … a fear may be well-founded for the purposes of the Convention and Protocol even though persecution is unlikely to occur … an applicant for refugee status may have a well-founded fear of persecution even though there is only a ten percent chance that he will be … persecuted.

    (Emphasis in original)

27. At [118], Murphy J went on to add:

    In AKH16 the Full Court said (at [48]–[49]):

    … the assessment of whether a person fears persecution on return to her or his country of nationality, must involve speculation about the future, and an assessment of the period of time to look into the future …

    As Mortimer J stated in CPE15 v Minister for Immigration and Border Protection … at [60]:

    The “reasonably foreseeable future” is something of an ambulatory period of time, but the use of reasonable foreseeability as the benchmark concept indicates that the assessment is intended to be one which can be made on the basis of probative material, without extending into guesswork. It is also intended to preclude predictions of the future that are so far removed in point of time from the life of the person concerned at the time the person is returned to her or his country of nationality as to bear insufficient connection to the reality of what that person may experience.  The purpose of the “well-founded” aspect of the Art 1A test is, after all, to be an objective but realistic and accurate assessment of what risks a person may face in the practical and “on the ground” circumstances she or he will be living in.  Using “reasonably foreseeable” also carries with it a rejection of an assessment which becomes too remote from a person’s expected life circumstances. These are not matters which can be expressed sensibly with more precision.

28. As stated, the difference between the parties in the present matter is whether those principles were properly applied by the Tribunal. 

29. In essence, the applicant submitted that in considering whether the applicant faced a ‘real chance of harm’ in Kenya due to his religion or ethnicity, the Tribunal wrongly applied the ‘real chance’ test by importing upon it a requirement that targeted incidents or actions were to be ‘so frequent’ or ‘prevalent’.[21]

    [21] Applicant’s Outline of Submissions filed on 14 February 2024 at paragraph [32].

30. Moreover, the applicant submits that the country information referred to by the Tribunal further reveals the misapplication of the ‘real chance’ test in circumstances where the country information did not reveal any rarity or cessation of incidents of harm against Somali Kenyans.[22]

    [22] Applicant’s Outline of Submissions filed on 14 February 2024 at paragraph [37].

31. In CGA15 v Minister for Home Affairs [2019] FCAFC 46 at [25]-[26], the Full Court of the Federal Court (Murphy, Mortimer and O’Callaghan JJ) said:

    25The question as to whether the Tribunal’s reasons disclose a misunderstanding or misapplication of the ‘real chance’ test depends on the particular facts of the case and on a fair reading of the reasons, read as a whole and without an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang ….  The Court’s focus must be whether having regard to the Tribunal’s reasons in this case it is more probable than not that the Tribunal misunderstood or misapplied the test.  The appellant has the onus to show jurisdictional error: Minister for Immigration and Border Protection v SZMTA … at [4] and [41] …

    26The mere fact that a decision-maker expresses his or her ultimate conclusions in terms which reflect the visa criterion (as the Tribunal did in this case) does not definitively show that it applied the correct test.  In many cases the substantive part of the decision-maker’s reasons, rather than recitations in the introduction or conclusions, will be a more reliable guide as to whether the Tribunal applied the correct test.  It is the reality not the appearance which matters …

    (Emphasis in original)

32. Applying these principles, when read fairly and as a whole, I find that the Tribunal did not misapply the ‘real chance’ test.  The applicant claimed to fear harm from the Kenyan authorities due to his Somali ethnicity and religion.  At paragraph [33] the Tribunal accepted that the applicant was identifiable as being of Muslim religion and Somali race in Kenya.  At paragraph [36], the Tribunal accepted, having considered country information, that ‘human rights organisations complain that security forces in Kenya target minority groups including ethnic Somalis and Kenyan Muslims for arbitrary arrests and detentions during counterterrorism operations’. However, the Tribunal went on to note the context in which such abuses occur, namely ‘in the context of a Kenyan military and police response to attacks by militants suspected of being linked to al-Shabaab, the Somali Islamist movement’.

33. The Tribunal had earlier referred to and accepted the applicant’s evidence that ‘he does not agree with what the Somali Islamist movement al-Shabaab stands for and he doesn’t believe in religious extremism …’.[23]  It is clear that the Tribunal formed the view that the applicant would not be specifically targeted in attacks by the military.  This left the Tribunal to consider whether there was a real chance that the applicant might be caught up in such an attack and it was in this context that the Tribunal noted, at paragraph [36]:

    … I do not accept on the evidence before me that such actions are so frequent or prevalent as to create a real chance that the applicant would be caught up in such an event, noting his own evidence that he is a moderate Muslim who does not believe in forcing his religion on others and sometimes attends mosque and sometimes prays at home. 

    [23] Tribunal decision record dated 9 June 2018 at paragraph [33].

34. The Minister submitted that the Tribunal’s findings and comments as to frequency and prevalence are to be properly understood to:

    …mean that the chance of the applicant getting caught up in such an event is remote due to the frequency of such events happening and due to the applicant’s profile as a moderate Muslim.[24]

    [24] Minister’s Outline of Submissions filed on 28 February 2024 at paragraph [11].

35. I accept this submission.  Read fairly and as a whole and without an eye keenly attuned to the perception of error,[25] the Tribunal did not misapply the real chance test.  Rather, it assessed the risk of harm to the applicant by reference to his own evidence and the available country information.  In applying the ‘real chance’ test, the Tribunal properly considered the evidence of what had happened in the past and used that as a basis for drawing an inference of the likelihood of the risk of harm in the future and it is in this context that the Tribunal used the words ‘frequent’ and ‘prevalent’.  In doing so, it was making a predictive assessment of the likelihood of the harm.  This analysis discloses no error.[26]

    [25] Minister’s Outline of Submissions filed on 28 February 2024 at paragraph [13], citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6.

    [26] See also CWR16 v Minister for Immigration and Border Protection [2017] FCCA 2554, upheld on appeal in CWR16 v Minister for Immigration and Border Protection [2018] FCA 859 at [44].

36. This view is consistent with the way in which the Tribunal refers to the ‘real chance’ test both in considering whether the applicant met the refugee criteria and also the ‘real risk’ test in considering the complementary protection provisions.

37. Nor do I accept the applicant’s submission that the country information itself supports the conclusion that the Tribunal applied the wrong test.  I accept that the country information referred to by the applicant in his outline of submissions contains information which suggests that civilian Somalis in Kenya are caught up with the Kenyan authorities.  It is submitted for the applicant that the country information before the Tribunal ‘indicated that the incidents of harm had been ongoing over many years, the country information does not state that the incidents had ceased, or that they were rare’.[27]

    [27] Applicant’s Outline of Submissions filed on 14 February 2024 at paragraph [37].

1. The applicant also submitted that he had made reference to ‘things becoming worse after the Westgate Shopping Mall siege in 2013, where Al-Shabaab/Somalis were responsible’.[28]

   [28] Applicant’s Outline of Submissions filed on 14 February 2024 at paragraph [37].

2. Ultimately, the question of what country information is relied upon and the weight to be given to it is a matter for the Tribunal.

3. It was open to the Tribunal to conclude that the applicant did not face a real chance of harm on the basis of the evidence before it.

4. For each of these reasons, ground 1 is not made out.

   Ground 2

5. By ground 2, the applicant claims that:

   2.The Tribunal erred by failing to consider the applicant’s claim that there was a real risk he would face serious discrimination and stigmatisation due to his membership of a particular social group comprising of persons in Kenya suffering from mental illness.

   Particulars

   a.It was a claim of the applicant that he would be subject to serious discrimination and significant stigmatisation due to his mental illnesses.

   b.The Tribunal accepted that the applicant suffers from mental illnesses and would benefit from medication and ongoing psychological support.

   c.The Tribunal accepted that the applicant was a member of a particular social group comprising of persons in Kenya suffering from mental illness.

   d.The Tribunal accepted that there was limited mental health care in Kenya and that it was not sufficiently resourced to meet the needs of the population.

   e.The Tribunal found that treatment would not be withheld from the applicant for a Convention reason.

   f.The Tribunal then found that ‘it follows that’ the applicant did not have a well-founded fear of persecution for reasons of his mental illness.

   g.The Tribunal failed to consider whether the applicant would be subject to serious discrimination and significant stigmatisation due to his mental illnesses.

6. Again, it is accepted that a failure by the Tribunal to consider a claim, or an integer of a claim, advanced by the applicant would constitute a failure to exercise the Tribunal’s jurisdiction and therefore would amount to a jurisdictional error.  Similarly, it is well settled that the Tribunal must consider ‘substantial, clearly articulated arguments’ that, if accepted, might establish a well-founded fear of persecution for a Convention reason.

7. It is submitted for the Minister however, that the degree of consideration required will depend on ‘the centrality, to the issues, of the manner with which it is said the decision-maker did not engage, and the prominence the matter assumed in the representations’.[29] In Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (‘Plaintiff M1’), the issue before the court arose in the context of a cancellation decision.  The High Court identified the relevant issue in Plaintiff M1 as:

   21… whether a decision-maker considering revocation under s 501CA(4) is required to determine whether non-refoulement obligations are owed to the former visa holder where the person makes representations which raise a potential breach of those obligations but the person remains free to apply for a protection visa.  As has been stated, the dispute between the parties was not if, but how, such representations should be considered by the decision-maker.

   [29] Minister’s Outline of Submissions filed on 28 February 2024 at paragraph [18(c)].

8. In this context, the High Court went on to observe, at [23]–[25]:

   23It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration.  But the decision-maker cannot ignore the representations.  The question remains how the representations are to be considered. 

   24Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations.  Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them.  From that point the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate.  The weight to be afforded to the representations is a matter for the decision-maker.  And the decision-maker is not obliged ‘to make actual findings of fact as an adjudication of all material claims’ made by a former visa holder.

   25It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness.  What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations.  The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations.  The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them. 

9. The crux of the applicant’s submission in relation to ground 2 is that the Tribunal, in focusing on the reasons medical treatment would be withheld from the applicant for a ‘convention reason’, failed to consider whether any mistreatment likely to be suffered by the applicant in Kenya would be because of his mental illness.[30]

   [30] Applicant’s Outline of Submissions filed on 14 February 2024 at paragraph [54].

10. The applicant’s representative submits that the applicant’s claims to fear harm arising from his mental ill health arose in two ways.  The first related to the lack of access to care that he would receive if he were returned to Kenya and the applicant takes no issue with the way in which the Tribunal dealt with that aspect of his claim.  The second way in which mental health arose related to a fear of harm from the significant stigmatisation that the applicant says he would suffer due to his mental ill health.

11. The applicant says that the Tribunal did not consider whether, as a member of a particular social group, comprising persons in Kenya suffering from mental illness, the applicant would suffer ‘serious discrimination, including stigma and physical mistreatment and harm from members of the community who do not understand mental illness’.[31]  Moreover, the applicant says that this claim was separate from the claim in relation to the applicant’s denial of a capacity to subsist.

    [31] Applicant’s Outline of Submissions filed on 14 February 2024 at paragraph [53].

12. At paragraph [54] of the applicant’s written submissions, the applicant submitted:

    Under both the refugee and complementary protection criteria the Tribunal considered that, even if it was incorrect and there was a real risk that the lack of medical treatment in Kenya put the applicant at risk of harm from the authorities and may impact on his capacity to subsist, that the withholding of treatment would not be for a convention reason or satisfy the intention requirement in the forms of significant harm. … This reasoning indicates a failure to consider the claim made.  The Tribunal has focused on the reasons medical treatment will be withheld, rather than considering whether the mistreatment would be because of the applicant’s mental illness.

13. In oral submissions, counsel for the applicant said:

    … the tribunal, in reaching these findings and considering this claim; has failed to consider the claim that the applicant would be at risk of suffering significant stigmatisation in Kenya.  Due to his mental illness.  What the tribunal did instead, was consider whether treatment for the applicant’s mental illness was available and sufficient in Kenya.  Found that it wasn’t.  Then went on to consider whether the reason the applicant would not receive treatment and support he required in Kenya, was due to a convention reason.  Having found that medical treatment or support would not be withheld from the applicant for a convention reason; the tribunal then went on to say:

    It follows that, he does not have a well-founded fear of persecution in Kenya for reasons of his mental illness.

    By characterising the claim in this way and considering the claim in this way, the tribunal has failed to consider the claim as put by the applicant; and that is that he was at risk of suffering significant stigmatisation in Kenya.  Due to his mental illness.  Due to his membership of a social group; being people in Kenya with mental illness.  And this claim simply wasn’t considered by the tribunal. And this claim that wasn’t considered, was independent of and remained to be considered; despite the tribunal’s finding that medical treatment would not be withheld for a convention reason.  And if one reads the post hearing submissions, that were submitted to the tribunal; that was never an argument that was put by the applicant.  The applicant never submitted to the tribunal that the reason the mental health services treatment and support in Kenya were insufficient, that that was due to a convention reason.

14. The Minister concedes that the applicant made a claim to fear harm from stigmatisation arising from his mental ill health.  However, it is submitted that this claim was linked to the applicant’s claim of lack of access to mental health treatment and properly assessed, that claim is of ‘diminished centrality’.  The Minister argues, that in these circumstances, the Tribunal gave that claim the appropriate consideration required. 

15. The Minister also submits that the applicant’s claim regarding his fear of harm from stigmatisation of mental ill health must be viewed in the context of the evidence the applicant himself gave about his mental ill health.  It is conceded that the Tribunal accepted that the applicant suffered from PTSD, anxiety and depression, the applicant’s own evidence indicated that he had received some mental health treatment initially after the onset of his condition but, as at the time of the Tribunal hearing, the psychologist report submitted by the applicant indicated that he would benefit from some ongoing treatment, but did not suggest that the applicant was actually engaged in such treatment.  Moreover, it is submitted for the Minister that this claim was first made weeks before the Tribunal handed down its decision and more than nine years after the basis for the claim first arose.  These factors, it is said, go to the ‘diminished centrality’ of this claim.  The Minister submits that in considering the Tribunal’s reasons and the manner in which it disposed of this claim, it is necessary to bear this in mind.

16. The Minister refers to and relies upon the observations in Plaintiff M1 set out earlier and submits that when the Tribunal’s reasons are read fairly and as a whole, it is apparent that the Tribunal in fact did give the appropriate level of consideration to this claim, having regard to the manner in which it was raised by the applicant.  It is submitted for the Minister that when regard is had to the applicant’s written submissions, it is clear that the applicant’s primary claim in relation to his mental health issues was his ability to access treatment and not the stigmatisation claim now relied upon.[32] 

    [32] Minister’s Outline of Submissions filed on 28 February 2024 at paragraph [20].

17. Relevantly, it is submitted that the stigmatisation claim is only referred to twice in the applicant’s post hearing written submissions and both of those references are in the context of the claim regarding a lack of access to treatment.[33] 

    [33] Minister’s Outline of Submissions filed on 28 February 2024 at paragraph [20].

18. Moreover, the Minister submits that the country information in relation to the ‘stigmatisation claim’ was limited to one paragraph of a 2015 report from the National Academies Press (US).[34] 

    [34] Minister’s Outline of Submissions filed on 28 February 2024 at paragraph [21]; Court book at page 420.

19. At page 411 of the court book and following, the applicant makes various submissions regarding his mental ill health.  These submissions appear under the heading ‘Poor mental health and psychiatric episodes including psychosis symptoms, anxiety and depression and an impulsive suicide attempt – Impact and requisite treatment, care and support’.  The applicant then cites material from the SANE website regarding the nature of mental ill health and the treatability of such conditions.

20. The applicant then goes on to say:

    As provided below, in Somalia and Kenya social stigma is attached to mental illness and in our submission, those who suffer from mental illness also suffer serious discrimination.  WE (sic) further submit that [the applicant] will be subjected to harm should he not be able to access his treatment.

    Also requiring consideration is the fact that mental illness does not disappear simply because someone accesses treatment.  That person is still mentally ill and as such, there remains the real chance that they will suffer stigma and physical mistreatment and harm from members of the community who do not understand mental illness.[35]

    [35] Court book at page 412.

21. The submissions then go on to deal with country information ‘regarding Mental Health Services in Somalia’.[36]  At page 414 of the court book, under the heading ‘Attitude and Stigma’, the applicant refers to country information about the stigmatisation of people who suffer from mental ill health in Somali culture and relevantly that this stigma ‘prevents many Somalis from seeking treatment or assistance’.  After setting out this country information, the applicant’s representative stated:

    In our submission, the lack of proper treatment puts [the applicant] at risk of significant harm from authorities if his behaviour were to become unstable and erratic.  [The applicant] would face the risk of being arrested and detained were this to occur.  If he were to be detained on this basis, he would likely be subjected to further harm and discrimination.[37]

    [36] Court book at pages 412 to 414.

    [37] Court book at page 415.

22. The applicant’s representative then goes on to provide country information about mental health services available in Kenya.[38]  At page 420 of the court book, under the heading ‘Attitude and Stigma’, the applicant’s representative referred to further country information about the stigma suffered by persons with mental health illnesses in Kenya. 

    [38] Court book pages 415 to 419.

23. I accept that the applicant claimed to fear harm due to stigma which attaches to people with mental ill health in Kenya.  This however, when viewed in context, was not a central aspect of the applicant’s claims. 

24. It is submitted for the Minister that the Tribunal did in fact give this claim appropriate consideration both in relation to the consideration of the refugee criteria and the complementary protection criteria.  There is much force to the Minister’s submissions, which I accept.

25. Relevantly, the Tribunal expressly referenced the two aspects of the applicant’s claims arising from his mental ill health.  At paragraph [44], the Tribunal relevantly said:

    It is submitted that the applicant will not be able to access appropriate mental health treatment in Kenya and he will suffer serious discrimination on account of his mental illness.

    (Emphasis added)

26. Accepting that the Tribunal’s reasons ought to be read fairly, the court should be slow to conclude that the Tribunal did not consider a claim which it expressly identified in its reasons.

27. Moreover, at paragraph [48], after expressly dealing with the applicant’s claim that he would be harmed due to the lack of medical treatment in Kenya for mental health concerns, the Tribunal went on to say:

    In any case in order to attract protection under the Convention as set out in Article 1A, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion.

28. At paragraph [45], the Tribunal recorded its findings as follows:

    … the applicant suffers from symptoms of PTSD, anxiety and depression following an assault on him in February 2012.  I have also accepted he was admitted to hospital in December 2009 with first episode psychosis.  The medical evidence before me does not indicate he is receiving ongoing treatment for any of those conditions, although the most recent report of his psychologist … states he would benefit from medication and additional psychological treatment.

29. I accept that in dealing with the question of whether Australia’s complementary protection obligations were enlivened in relation to the applicant, there was no express reference to the stigmatisation claims per se in paragraphs [56] – [58].  However, after noting that the ‘real chance’ test was the same as the ‘real risk’ test, the Tribunal went on at paragraph [55] to find:

    For the same reasons the Tribunal does not accept that there is a real risk the applicant will suffer significant harm for any of those reasons as a necessary and foreseeable consequence of the applicant being removed from Australia to Kenya.

30. It was open to the Tribunal to rely upon its factual findings and reasoning in relation to the assessment of whether the applicant met the refugee criteria when considering whether the applicant met the complementary protection criteria.

31. When the Tribunal’s reasons are read in their entirety and fairly, without a keen eye to error,[39] it is apparent that the Tribunal was aware of the fact that the applicant had claimed to fear harm arising from the stigmatisation of mental health, but formed the view that it was a relatively minor aspect of the applicant’s claims and when viewed in that context, the way in which the Tribunal dealt with that claim was adequate to discharge its statutory task. 

    [39] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272.

32. In coming to this conclusion, it is of particular relevance that the Tribunal made specific reference to this claim at paragraph [44].

33. For each of these reasons, ground 2 is not made out.

    CONCLUSION

34. As neither ground of review is made out, I make the orders set out at the commencement of these written reasons.

I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri.

Associate:

Dated:       10 May 2024