DTW20 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 411
•25 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DTW20 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 411
File number(s): SYG 1930 of 2020 Judgment of: JUDGE ZIPSER Date of judgment: 25 March 2025 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – finding by Tribunal that no real chance applicant would experience mistreatment in Nigeria because of mental health disorder or condition – whether finding legally unreasonable or illogical – whether probative basis for Tribunal’s finding of no real chance of harm – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) s 36 Cases cited: CKL21 v Minister for Home Affairs [2022] FCAFC 70; 293 FCR 634
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Division: Division 2 General Federal Law Number of paragraphs: 52 Date of hearing: 5 March 2025 Place: Parramatta Counsel for the Applicant: Mr O. R. Jones Solicitor for the Applicant: Ray Turner Immigration Lawyers Counsel for the Respondents: Ms K. Hooper Solicitor for the Respondents: HWL Ebsworth Lawyers ORDERS
SYG 1930 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DTW20
Applicant
AND: [MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
]Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
25 MARCH 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Multicultural Affairs”.
2.The application is dismissed.
3.The applicant pay the first respondent’s costs in the sum of $8,371.30.
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 ZIPSER
INTRODUCTION
On 14 August 2020, the applicant filed an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 21 July 2020. The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicant a protection (subclass 866) visa under s 65 of the Act.
For the reasons that follow, the application is dismissed.
FACTUAL BACKGROUND
In July 2008, the applicant, a citizen of Nigeria, first arrived in Australia.
On 25 July 2019, the applicant lodged an application for a protection (subclass 866) visa.
On 24 March 2020, a delegate of the first respondent refused to grant the visa because she was not satisfied the applicant was a person in respect of whom Australia had protection obligations under s 36(2) of the Act.
On 26 March 2020, the applicant applied to the Tribunal for review of the delegate’s decision.
On 14 May 2020, the Tribunal invited the applicant to appear at a hearing to give evidence and present arguments on 22 May 2020.
On 20 May 2020, the applicant’s representative provided a written submission and evidence to the Tribunal. The materials included a claim made for the first time that the applicant suffered from a mental health disorder and, as a result, he faced a real chance of serious harm if required to return to Nigeria.
On 22 May 2020, the applicant appeared at a hearing before the Tribunal by video. The applicant’s representative participated in the hearing.
On 29 May 2020, the applicant’s representative provided a further submission and additional evidence to the Tribunal, including additional materials in support of the applicant’s claim that, as a result of a mental health condition, he faced a real chance of serious harm if required to return to Nigeria.
On 21 July 2020, the Tribunal made a decision affirming the delegate’s decision not to grant the applicant a protection visa.
TRIBUNAL’S DECISION
The applicant claimed he faced a real chance of serious harm if required to return to Nigeria:
(a)for reason of his past employment at the Ministry of Youth in Nigeria;
(b)from his uncle;
(c)for reason of his non-return to Nigeria after attending an event in Australia in 2008;
(d)due to his criminal convictions for drug offences in Australia;
(e)from persons who owned drugs seized when he was arrested; and
(f)for reason of his mental health disorder.
In relation to the claims in paragraphs 12(a) to (e), the Tribunal considered the claims and, for reasons explained in the Tribunal’s decision, did not accept that the applicant was a person in respect of whom Australia had protection obligations. The applicant has not challenged these findings of the Tribunal in the present Court proceeding.
In relation to the claims arising from the applicant’s mental health disorder, the Tribunal accepted that the applicant suffered from Adjustment Disorder with mixed anxiety and depressed mood. The applicant claimed he would suffer harm in Nigeria because of the lack of adequate treatment for mental health disorders, because he was at risk of suicide, and because people with mental health disorders are shackled with iron chains or forced into government-run mental health facilities.
The Tribunal at [88]-[93] reviewed country information concerning mental health issues and treatment in Nigeria.
In relation to the applicant’s claims that he would suffer harm because of lack of adequate treatment for mental health disorders or because he was at risk of suicide, the Tribunal at [94] stated that s 36(2) is not concerned with self-harm or harm suffered by an applicant as a result of an illness arising on return to the receiving country. The applicant has not challenged this finding of the Tribunal in the present Court proceeding.
In relation to the applicant’s claim that he would suffer harm because people with mental health disorders are chained up or otherwise mistreated, the Tribunal concluded at [99] that there was “no real chance or real risk that the applicant will be subjected to chaining or any other treatment which would constitute serious or significant harm by the authorities, community or anyone else on his return to Nigeria”.
For the reasons stated by the Tribunal, the Tribunal did not accept that the applicant was a person in respect of whom Australia had protection obligations.
PROCEEDINGS IN THIS COURT
Application and events up to hearing in March 2025
On 14 August 2020, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
On 26 November 2020, the applicant filed a written submission (AS) which attached and addressed grounds in a proposed amended application (Amended Application). At the hearing on 5 March 2025, I granted the applicant leave to file the Amended Application. The Amended Application contains two grounds as follows (as written):
1.The Tribunal’s finding that the Applicant had no real chance or real risk of being subject to serious or significant harm as a result of his mental health conditions was legally unreasonable and/or illogical.
Particulars
a) The Tribunal accepted the Applicant’s mental health disorder and that the symptoms of his mental health disorder would worsen if he is removed from his family and returned to Nigeria. However, the Tribunal found that there is no real chance or real risk that the Applicant would be subject to serious or significant harm in Nigeria as a result of his mental health conditions.
b) There is a clear nexus between the Applicant’s deteriorating mental health condition and the real chance or real risk of significant harm including chaining and other treatments by Nigerian authorities and the community if he returns to Nigeria.
c) The country information and evidence provided by the Applicant demonstrated that individuals with mental health conditions in Nigeria are subject to serious and significant harm by the Nigerian authorities and community.
d) The Tribunal failed to give adequate consideration to evidence before it demonstrating that chaining and other harmful practices in relation to those suffering from mental illness were prevalent in all parts of Nigeria.
e) The reasoning of the Tribunal is unreasonable and/or illogical given the Tribunal accepted the future deterioration of the Applicant’s mental health but still made a finding that there was no real chance or real risk of the Applicant facing serious or significant harm on his return to Nigeria now or in the reasonably foreseeable future. The Tribunal’s unreasonable and/or illogical reasoning has resulted in a jurisdictional error.
2.The Tribunal failed to give proper, genuine and realistic consideration of the Applicant’s risk of harm as a result of his mental health disorder.
Particulars
a) The Tribunal found that there is no real chance or real risk that the Applicant would be subject to serious or significant harm as a result of his mental health conditions if returned to Nigeria.
b) The country information and evidence provided by the Applicant demonstrated that individuals with mental health conditions in Nigeria are subject to serious and significant harm by the Nigerian authorities and community.
c) The Tribunal failed to give adequate consideration to evidence before it demonstrating that chaining and other harmful practices in relation to those suffering from mental illness were prevalent in all parts of Nigeria.
d) By finding that the Applicant had no real chance or real risk of harm despite the Tribunal accepting that the Applicant had a mental health disorder and that the symptoms would worsen is a failure of the Tribunal to give proper, genuine and realistic consideration to the evidence before it which proved that the Applicant faced a real chance of significant harm on his return to Nigeria.
On 24 February 2021, the first respondent filed a written submission.
Following a period of inactivity, on 14 January 2025 the registry of the Court notified the parties that the matter was listed for hearing on 5 March 2025.
Hearing on 5 March 2025
At the hearing on 5 March 2025, Oliver R Jones of counsel appeared for the applicant, and Katherine Hooper of counsel appeared for the first respondent.
Mr Jones explained that, in light of developments in case law following preparation of the Amended Application and applicant’s written submission in November 2020, ground 2 in the Amended Application was a part of ground 1 such that, if ground 1 was dismissed, it was not necessary to separately consider ground 2.
Following the tender of a Court Book (CB) which contained the Tribunal’s decision and documents which were before the Tribunal, Mr Jones and Ms Hooper made oral submissions which supplemented their written submissions.
CONSIDERATION
Ground 1 - Introduction
To understand the applicant’s contentions in this Court proceeding, it is useful to understand some details of the applicant’s claims concerning and arising from his mental health condition.
On 20 May 2020, the applicant’s representative provided a submission and materials to the Tribunal which included a claim for the first time based on a mental health disorder. The materials included a report from a psychologist dated 6 May 2020. The psychologist opined that the applicant had “Adjustment Disorder with mixed anxiety and depressed mood”. The psychologist explained that “this disorder is characterised by the manifestation of emotional and/or behavioural symptoms in direct response to a stressor”. In a context where the applicant had two children in Australia from whom he would be separated if he was required to return to Nigeria, the psychologist stated that a stressor was “his immigration matters and his fear of being separated from his family”, “the symptoms will persist whilst the stressor continues to be present, however will subside once the stressor has been removed or resolved”, and “separation from his children would also significantly impact on his own mental health and wellbeing”. The report also referred to various “protective factors”, including “strong social support network”, and “stable history of employment”.
The representative’s submission at CB 221-222 explained various forms of harm the applicant would experience if required to return to Nigeria. First, he “will face significant harm including being shackled with iron chains, arrested by police and forced into government run facilities”. Second, he “will not be able to access adequate treatment … and would be at a greater risk of suicide”.
In relation to the representative’s claim that the applicant would be shackled with iron chains, arrested and forced into government run facilities, the representative provided to the Tribunal a Human Rights Watch Report titled “Nigeria: People with Mental Health Conditions Chained, Abused” dated 11 November 2019 (HRW Report). The HRW Report commenced with the statement that “thousands of people with mental health conditions across Nigeria are chained and locked up in various facilities where they face terrible abuse”. The report provided details, including photographs and witness testimony, in support of the opening statement. The materials provided by the representative to the Tribunal referred to or included additional country information reports concerning the limited facilities for treating mental health disorders in Nigeria.
The Tribunal at [54]-[59] considered the applicant’s mental health condition and the report from the psychologist dated 6 May 2020. The Tribunal at [56] accepted the assessment of the psychologist, including that the applicant has Adjustment Disorder with mixed anxiety and depressed mood. The Tribunal at [59] also accepted that, if the applicant is required to return to Nigeria, “the separation [of the applicant from his children] would have a very profound effect upon the applicant”.
The Tribunal at [88]-[93] considered country information concerning mental health, and the treatment of persons with mental health disorders, in Nigeria. The Tribunal at [88] stated that it had regard to the articles and reports provided by the applicant’s representative, including the HRW Report. The Tribunal at [91] considered information in a DFAT report concerning mental health services and mental health issues in Nigeria. The Tribunal at [92] considered information in a recent UK Home Office report on mental health in Nigeria. The UK Home Office report, among other matters, described the various neuropsychiatry hospitals, mental hospitals and teaching hospitals with psychiatry departments in Nigeria, stated that the treatment facilities are mainly located in urban and in some semi-urban areas, stated that “the treatment of mental illness is possible in public hospitals” and “there is no form of mental illness for which treatment is not available in Nigeria”, stated that “there is also training of health care workers at the primary health care level to diagnose common mental illness” and referred to “the availability of in and outpatient treatment by psychiatrists and psychologists from public facilities” and “the availability of psychiatric counselling and medication assistance by psychiatric nurses from public facilities”. The Tribunal at [93] considered a European Asylum Support Office country guidance which stated that, as summarised by the Tribunal, “persons with mental disabilities often suffer social stigma, exploitation and discrimination” and “the nature and visibility of the mental or physical disability may increase risk of the person being harmed”.
The Tribunal at [94] made the following finding concerning the applicant’s claim that he will not be able to access adequate treatment and would be at a greater risk of suicide:
As above, I note that in relation to the claims that have been raised, my role is to assess the harm to the applicant if he is returned to Nigeria from Australia, s.36(2)(a) is concerned with persecution of an applicant by other persons for a nexus reason and does not encompass the harm an applicant may suffer as a result of an illness arising on return to their receiving country. Further that the definition in s 36(2A) is framed in terms of harm suffered because of the acts of other persons. It does not encompass self-harm, harm arising from mental illness or harm that a non-citizen would suffer as a result of any other illnesses arising on return to a receiving country.
As stated above, the applicant did not challenge in this Court proceeding the Tribunal’s findings at [94].
The remaining question for the Tribunal concerned the risk of the applicant being chained or treated in a manner which would constitute serious or significant harm. The Tribunal dealt with this claim at [95]-[99] in the following terms:
95.At the hearing I raised with the applicant my doubts that he would be harmed on return to Nigeria suffering from Adjustment disorder with the symptoms of anxiety and depression as described in the psychologist report (which is consistent with the symptoms described by the counsellor) may not be significant enough to lead to him being locked up. I note that such symptoms may not be identified and stigmatised as readily as symptoms associated with schizophrenia or bipolar disorder, and note in this regard the EASO report indicates the nature and visibility of the mental disability has an impact on the risk. The applicant said if he returned he would get worse and mental illness is very misunderstood over there. I further noted to the applicant that the information, as above, indicated that these sorts of 'treatments' including chaining appeared more prevalent for people in villages or from the country rather than from cities such as where he would be returning to. The applicant responded that he knew a place where people were chained. The applicant also gave evidence that he spoke with his mother most of the time and with his younger brother and would live with one of them, and that he had reasonable prospects of getting employment. The representative submitted that the country information, in particular the Human Rights Watch article from 2019, made reference to mental health facilities, including facilities in the city, and that all of them have the same types of treatments for mental health. He noted that the mental heath evidence indicated that if the applicant is returned to Nigeria he would require further assessment and treatment for depressive symptoms. There were also suggestions that his mental health will worsen.
96.I have considered all of the information before me. I accept that mental health is poorly understood and under resourced in Nigeria. I accept that in some facilities people are chained or otherwise 'treated' in a manner that would constitute serious or significant harm. However, I also note that the country information, in particular the UK home office report of this year, notes that there are psychological and psychiatric services, that there is a lack of trained practitioners but that primary health care workers have been trained to diagnose mental health. This report also notes that there is a disparity between cities and rural areas, and services are particularly lacking in the North-Eastern region. I note the applicant's family lives in the South, in a city. I note that the Human Rights Watch report acknowledges that some of the facilities at which they saw people chained have been shut down by the Nigerian authorities. I note that the articles on depression in Nigeria provided after the hearing indicate that there is a growing awareness of depression and better ways to treat depression expressed in these articles, which may indicate a changing attitude towards mental illness and a de-stigmatisation.
97.If the applicant returns to Nigeria I accept that he will continue to suffer from Adjustment Disorder with mixed anxiety and depressed mood, and I accept that, removed from his Australian family, his symptoms are likely to worsen. However, he will have some protective factors including living with family and the real prospect of being employed. He has been working on strategies to manage his symptoms with his counsellor. He will also not be detained in a detention centre, which he indicated had caused his symptoms to worsen to the same level as when he was jailed. The applicant will also be returning to a city, where, according to the country information, there is a greater chance of receiving treatment for his mental health condition, that is, evidence-based treatments that do not involve chaining or other practices. Further, I find that the greater prevalence of such treatments in the city means there would be less likelihood of chaining and other practices occurring in cities such as Enugu.
98.…
99.Considering the country information before me, and the inferences I have made on having read that information, I consider that if the applicant, with the mental health disorder as I have accepted it, the symptoms as accepted, and accepting that these symptoms may worsen as above, but taking into account the protective factors, lack of detention, the mental health treatments available, I find that there is no real chance or real risk that the applicant will be subjected to chaining or any other treatments which would constitute serious or significant harm by the authorities, community or anyone else on his return to Nigeria now or in the reasonably foreseeable future.
There is a typographical error in the first sentence of [95]. Ms Hooper proposed that the word “with” should be “because”. I agree.
Ground 1 in the Amended Application states that the Tribunal’s finding that the applicant had no real chance of being subject to serious or significant harm as a result of his mental health condition was legally unreasonable or illogical. The manner in which Mr Jones developed the ground differed between his written and oral submissions. I will deal with the written and oral submissions separately.
Ground 1 - Applicant’s written submission
AS [23] explains four asserted flaws in the Tribunal’s reasons at [95]-[97]. The asserted flaws, and a response to the applicant’s contentions, are addressed in the following paragraphs.
First, it is stated at AS [23(a)] that the Tribunal’s observation in the first sentence of [95] that the applicant’s symptoms “may not be significant enough to lead to him being locked up” “inverts the statutory test [because] the question is not whether the harm may not happen but rather whether there is a real risk that it will”. I disagree that the Tribunal inverted the statutory test. The Tribunal at [6] stated that a person has a well-founded fear of persecution for a Convention reason if, among other conditions, “there is a real chance they would be persecuted for one or more of those reasons”. The Tribunal thereby correctly identified the statutory test. Next:
(a)The Tribunal at [64], in dealing with the applicant’s claim concerning harm for reasons of his past employment with the Ministry of Youth, stated that “there is no real chance or real risk of the applicant being recognised and harmed by the youth or anyone else for reason of his former employment with the Federal Ministry of Youth”. The applicant appeared to accept in this Court proceeding that this was a correct application of the statutory test concerning “real chance” and “real risk”.
(b)The Tribunal at [72], in dealing with the applicant’s claim concerning harm for reasons of his non-return to Nigeria after World Youth Day, did “not accept there is a real chance, or a real risk, of the applicant being seriously or significantly harmed by the authorities or anyone else because he did not return to Nigeria after World Youth Day”. The applicant appeared to accept in this Court proceeding that this was a correct application of the statutory test concerning “real chance” and “real risk”.
(c)The Tribunal, at [77], in dealing with the applicant’s claim concerning harm due to his criminal convictions in Australia, did “not accept there is a real chance or real risk that the applicant will be prosecuted because of his drug conviction in Australia if he is returned to Nigeria”. The applicant appeared to accept in this Court proceeding that this was a correct application of the statutory test concerning “real chance” and “real risk”.
(d)The Tribunal at [85], in dealing with the applicant’s claim concerning harm from removal from his Australian family, found “that there is no real chance or real risk of the applicant suffering serious harm amounting to persecution … for reasons of his separation from his family in Australia …”. The applicant appeared to accept in this Court proceeding that this was a correct application of the statutory test concerning “real chance” and “real risk”.
In considering the applicant’s claims concerning harm on return to Nigeria for reasons of his mental health, after considering various matters at [86]-[98], the Tribunal found at [99] “that there is no real chance or real risk that the applicant will be subjected to chaining or any other treatments which would constitute serious or significant harm by the authorities …”. This was a correct application of the statutory test concerning “real chance” and “real risk”. The Tribunal’s observation in the first sentence of [95], which was a single sentence in comparatively lengthy reasons from [86] to [98], did not involve an inversion of the statutory test. I agree with the first respondent’s submission that the reference to ‘may not’ forms part of a statement put by the Tribunal to the applicant at its hearing and was not a purported application of the real chance/real risk test. In short, the Tribunal stated the correct question or test at [6] and, in respect of the applicant’s claim that he feared harm on return to Nigeria for reasons of his mental health, answered the correct question or test at [99].
Second, it is stated at AS [23(b)] that one part of the Tribunal’s summary of the UK Home Office report “mis-states” the report. The report, quoted by the Tribunal at [92], states in part that “there is also training of health care workers at the primary health care level to diagnose common mental illnesses”. The Tribunal at [96] stated that the UK Home Office report “notes that … primary health care workers have been trained to diagnose mental health”. The applicant’s complaint appears to be that the UK Home Office report refers to “common mental illness”, while the Tribunal’s summary at [96] refers to “mental health”, and there is a difference between the term “mental health” and “common mental illness” such that an inference should be drawn that the Tribunal misunderstood the report. I do not accept that the Tribunal misunderstood the report. I agree with the first respondent’s written submission that it was open to the Tribunal to draw from the report that “primary health care workers have been trained to diagnose mental health”. There is also a complaint at AS [23(b)] that the training referred to in the report is limited to diagnosing “common mental illnesses” and the Tribunal did not positively find that the applicant’s mental illness was “common”. The Tribunal at [96] referred to “articles on depression in Nigeria” which “indicate that there is growing awareness of depression and better ways to treat depression”. It is clear that depression was a recognised and treated mental illness in Nigeria. It was not necessary for the Tribunal to expressly find that the condition is “common”.
Third, at AS [23(c)] the applicant complains about the Tribunal’s statement in the last sentence of [96] that some articles on depression in Nigeria “may indicate a changing attitude towards mental illness and a de-stigmatisation”. The complaint is that the Tribunal, in this statement, “does not address the statutory test which is not whether there is a possibility that harmful conditions may alleviate, but rather there is a real risk that harm will occur”. I disagree that the Tribunal, by this sentence, has mis-stated or not addressed the correct statutory test. As stated in paragraph 38 above, the Tribunal stated the correct statutory test at [6] and gave an answer in respect of that statutory test at [99]. I agree with the first respondent’s written submission that the Tribunal’s consideration of some articles which “may indicate a changing attitude towards mental illness and a de-stigmatisation” was one of a number of factors relied on by the Tribunal in reaching its conclusion at [99] “that there is no real chance or real risk that the applicant will be subjected to chaining or any other treatments which would constitute serious or significant harm by the authorities …”.
Fourth, at AS [23(d)] the applicant complains about the Tribunal’s finding at [97] “that the greater prevalence of such treatments in the city means there would be less likelihood of chaining and other practices occurring in cities such as Engu”. The complaint is that “this does not address the relevant statutory test which is concerned with whether there is a real chance or real risk of harm”. I disagree that the Tribunal, by this sentence, has mis-stated or not addressed the correct statutory test. As stated in paragraph 38 above, the Tribunal stated the correct statutory test at [6] and gave an answer in respect of that statutory test at [99]. I agree with the first respondent’s written submission that the Tribunal’s reference to ‘less likelihood’ was a finding of fact which informed, together with other matters, the Tribunal’s conclusion at [99] “that there is no real chance or real risk that the applicant will be subjected to chaining or any other treatments which would constitute serious or significant harm by the authorities …”.
AS [24] adds a complaint that “the Tribunal did not engage with the findings in the HRW [Report] of wide-spread and consistent evidence of abuse of those suffering from mental illness across Nigeria”. I disagree. The Tribunal at [88] referred to and briefly summarised the central message of the HRW Report. The Tribunal at [95] and [96] referred to information in the HRW Report. The Tribunal clearly had regard to and considered the report. That the Tribunal did not place the amount of weight on the report desired by the applicant is not a jurisdictional error, since “the weight that [the Tribunal] gives to such information is a matter for the Tribunal itself”: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11].
AS [25] adds a complaint that the Tribunal “did not set out or otherwise address the key tests for ‘real risk’ and ‘real chance’ arising from decisions such as Guo and Chan”. The Tribunal at [6] and [7] briefly summarised the ‘real chance’ and ‘real risk’ test. The applicant did not contend this summary was not correct. It was not necessary for the Tribunal to discuss the meaning of ‘real chance’ and ‘real risk’ in its reasons for decision.
The applicant’s written submission does not identify a jurisdictional error in the Tribunal’s reasoning process at [86]-[99].
Ground 1 - Applicant’s oral submissions
At the hearing on 5 March 2025 Mr Jones, in addition to maintaining the contentions in the applicant’s written submission, contended the Tribunal’s reasoning process at [86]-[99] was legally unreasonable or illogical in an additional way as follows. He stated that the Tribunal made various findings of fact at [95]-[97] and then jumped from those findings to a conclusion at [99] that “there is no real chance or real risk that the applicant will be subjected to chaining or any other treatments which would constitute serious or significant harm by the authorities …” without setting out a reasoning process between the findings of fact at [95]-[97] and the conclusion at [99] of “no real chance or real risk” of harm. More specifically, Mr Jones stated that the Tribunal did not explain:
(a)why there was no real chance the applicant would be subject to chaining or any other treatment which would constitute serious or significant harm;
(b)how the protective factors of living with family or a real prospect of employment referred to at [97] would lead or contribute to a conclusion that there was no real chance or real risk of the applicant being subject to chaining or any other treatment which would constitute serious or significant harm; and
(c)how “strategies to manage his symptoms with his counsellor” referred to at [97] would lead or contribute to a conclusion that there was no real chance or real risk of the applicant being subject to chaining or any other treatment which would constitute serious or significant harm.
Mr Jones relied on CKL21 v Minister for Home Affairs [2022] FCAFC 70; 293 FCR 634 (CKL21). The case involved judicial review of a decision of the Minister under s 501CA(4) of the Act not to revoke the mandatory cancellation of the appellant’s visa. The appellant had been convicted of murder. In considering the “Risk to the Australian community”, the Minister, after referring to a wide range of factors which would play a protective role and reduce the appellant’s risk of re-offending, continued that he “remain[ed] guarded about the risk of [the appellant] relapsing into substance abuse if released into the community” and found “that there is an ongoing risk that [the appellant] would reoffend”. The Minister ultimately concluded that the appellant “represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his minor family members, as a primary consideration, and any other considerations as described above”. The Full Court stated at [80] that the central issue raised by the ground of appeal was “whether there was a probative basis for the Minister’s finding that there was an ongoing risk that the appellant would reoffend by committing murder or a similar offence” in a context “where the evidence before the Minister barely (if at all) supports any finding concerning the risk of reoffending in the same or similar manner”. The Full Court at [83]-[86] explained that the Minister’s reasons referred to only two matters that could possibly be relied on in support of the ultimate finding that the appellant was at risk of reoffending and, in respect of both matters, the Minister’s reasons did not provide a probative basis for a conclusion that the appellant presented a risk of reoffending by murder or similar offence.
Mr Jones contended that:
(a)On application of the principle in CKL21, there must be a probative basis for the Tribunal’s finding at [99] “that there is no real chance or real risk that the applicant will be subjected to chaining or any other treatments which would constitute serious or significant harm by the authorities …”.
(b)There was no probative basis for this finding at [99].
I agree that, if there was no probative basis for the Tribunal’s finding at [99] that the applicant faced no real chance or real risk of harm on return to Nigeria, there may be a jurisdictional error in the Tribunal’s finding on this issue. However, I consider that, in contrast to CKL21, in the present case, there was a probative basis for the Tribunal’s finding at [99]. Before addressing the particular complaints advanced by Mr Jones set out in paragraph 45 above, a difference between CKL21 and the present matter is that, in contrast to the observation in CKL21 at [80] that “the evidence before the Minister barely (if at all) support[ed]” the Minister’s finding, this was not a case where the evidence before the Tribunal barely supported its finding at [99]. In particular, the UK Home Office report considered by the Tribunal at [92] and [96] and referred to in paragraph 31 above, discussed in positive terms the availability of treatment for mental illness in Nigeria through public hospitals, neuropsychiatry hospitals, teaching hospitals, mental hospitals and other treatment facilities, and the involvement of psychiatrists, psychologists, psychiatric nurses, other nurses, psychiatric counsellors and health care workers in that treatment.
In relation to the particular complaints advanced by Mr Jones set out in paragraph 45 above:
(a)Mr Jones stated that the Tribunal did not explain why there was no real chance that the applicant would be subject to chaining or any other treatment which would constitute serious or significant harm. I disagree. The Tribunal at [95]-[97] set out a reasoning process which led to its conclusion at [99] that “there is no real chance or real risk that the applicant will be subjected to chaining or any other treatments which would constitute serious or significant harm by the authorities …”. I consider that the reasoning process at [95]-[97] provided an intelligible basis for the conclusion at [99].
(b)Mr Jones stated that the Tribunal did not explain how the protective factors of living with family or a real prospect of being employed referred to at [97] would lead or contribute to a conclusion that there was no real chance or real risk of the applicant being subject to chaining or any other treatment which would constitute serious or significant harm. I disagree. The Tribunal at [95] referred to its doubts that the symptoms of anxiety and depression the applicant would suffer and exhibit would be significant enough to lead to the applicant being locked up. Protective factors referred to by the Tribunal at [97] were factors which may lessen the severity of symptoms and counter the “worsen[ing]” of symptoms referred to in the Tribunal’s previous sentence. The psychologist discussed protective factors in paragraphs 20 and 24 of his report. It is clear that the presence of the protective factors contributed to the Tribunal’s conclusion at [99] that there was no real chance or real risk that the applicant will be subject to chaining.
(c)Mr Jones stated that the Tribunal did not explain how “strategies to manage his symptoms with his counsellor” referred to at [97] would lead or contribute to a conclusion that there was no real chance or real risk of the applicant being subject to chaining or any other treatment which would constitute serious or significant harm. As stated by the psychologist in his report at CB 251, ongoing and future engagement in psychological treatment was a protective factor. Protective factors may lessen the severity of symptoms. It is clear that the presence of this factor contributed to the Tribunal’s conclusion at [99] that there was no real chance or real risk that the applicant will be subject to chaining.
For the above reasons, ground 1 does not identify a jurisdictional error in the Tribunal’s decision.
Ground 2
As stated above, Mr Jones stated at the commencement of the hearing on 5 March 2025 that ground 2 in the Amended Application was part of ground 1 such that, if ground 1 was dismissed, it was not necessary to separately consider ground 2. For this reason, ground 2 also does not identify a jurisdictional error in the Tribunal’s decision.
COSTS
At the conclusion of the hearing, I invited submissions from the parties on costs. The parties agreed that costs should follow the event. Ms Hooper did not have instructions concerning the amount sought by the first respondent. I will hear further submissions on costs at the delivery of judgment.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 25 March 2025
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