DZH16 v Minister for Immigration
[2020] FCCA 1041
•8 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DZH16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1041 |
| Catchwords: MIGRATION – Protection (Class XA) Subclass 866 visa – decision of the Administrative Appeals Tribunal – where substantial portions of the Tribunal’s decision are identical to the delegate’s decision – whether Tribunal undertook a proper review – jurisdictional error established – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.5AAA, 5J, 36, 57, 476, 499 |
| Cases cited: Craig v State of South Australia (1995) 184 CLR 163 DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 FRO17 v Minister for Immigration and Border Protection [2019] FCA 969 |
| Applicant: | DZH16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 352 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing dates: | 17 February 2020 and 21 April 2020 |
| Date of Last Submission: | 21 April 2020 |
| Delivered at: | Perth |
| Delivered on: | 8 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the First Respondent: | Ms S J Oliver |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
A writ of certiorari issue directed to the second respondent quashing the decision dated 12 August 2019.
A writ of mandamus issue directed to the second respondent requiring it to reconsider and determine the applicant’s application for review according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 352 of 2019
| DZH16 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed in this Court on 5 September 2019, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 12 August 2019.
The Tribunal’s decision affirmed a decision made by a delegate of the first respondent (the “Minister”) to not grant the applicant a Protection (Class XA) Subclass 866 visa (the “visa”).
This proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”). To obtain relief from this Court, the applicant must show that the Tribunal fell into jurisdictional error.
The materials before the Court included the applicant’s judicial review application, an affidavit of the applicant sworn 20 August 2019, a Court Book (“CB”) numbering 646 pages (marked as Exhibit 1), an affidavit of Ms Sara Anicic affirmed 9 January 2020 and outlines of written submissions filed by the Minister on 3 February 2020 and 16 March 2020.
The Court confirmed with the applicant that he had received a copy of the Court Book and the Minister’s outlines of written submissions.
This matter was heard over two days: 17 February 2020 and 21 April 2020. The applicant appeared in person at the hearing on 17 February 2020. As a result of the health advice at the time, the hearing on 21 April 2020 proceeded by way of teleconference. The applicant was assisted by an interpreter on both occasions.
Background
The Minister’s submissions (at [3]-[12]) accurately summarise the factual background to this matter. The Court adopts that summary, with some additions, as follows.
The applicant was born in Iraq (CB 477).
The applicant arrived in Australia on 16 September 2009 on a Humanitarian (Class XB) (Subclass 200) visa (the “humanitarian visa”) (CB 505). He had been living in Indonesia since 2001 where he was assessed by the United Nations High Commissioner for Refugees (UNHCR) as a refugee due to generalised violence in his home location.
The applicant’s humanitarian visa was cancelled on 28 February 2018 (CB 478).
On 13 November 2018, the applicant applied for the visa the subject of this review (CB 1-36). The applicant claimed he was a stateless Faili Kurd and feared harm for the following reasons:
a)his Faili Kurd ethnicity;
b)his being a Shia Muslim;
c)his being a returnee from the West;
d)his mental health issues and being identified as a person with a disability;
e)his being stateless; and
f)his previous criminal history in Australia.
(CB 1-36 and 67)
On 13 December 2018, the applicant attended an interview with a Ministerial delegate (CB 47). His representative provided pre-hearing submissions on 4 December 2018 (CB 56-70).
On 7 January 2019, the delegate wrote to the applicant inviting him, pursuant to s.57 of the Act, to comment on certain information, including whether he was an Iraqi citizen, his previous behaviour and his medical issues (CB 72-75). The applicant’s representative responded to that letter on various dates between 8 January 2019 and 11 March 2019 (CB 83-467).
On 11 March 2019, the delegate sent a further letter to the applicant inviting him to comment, pursuant to s.57 of the Act, on whether he wished to make any claims for protection in relation to Iraq (CB 469-471). The applicant did not respond to this letter.
On 6 May 2019, the delegate refused to grant the visa to the applicant (CB 477-493). The delegate found that the applicant was an Iraqi citizen but was not satisfied that he would face a chance or risk of harm for the reasons claimed.
On 8 May 2019, the applicant applied to the Tribunal for a review of the delegate’s decision (CB 494-495).
On 7 June 2019, the applicant’s representative gave the Tribunal a statement from the applicant (CB 518).
On 12 and 17 June 2019, the applicant appeared before the Tribunal. He was assisted by his representative (CB 521-532 and CB 539-541).
On 19 and 21 June 2019, the applicant’s representative provided submissions to the Tribunal (CB 542-568).
On 31 July 2019, the Tribunal invited the applicant to comment on information which might be a reason, or part of a reason, for affirming the decision (CB 581-582). On 9 August 2019, the applicant’s representative responded to the information (CB 295-606). On 11 August 2019, the applicant’s representative provided a further submission and asked that it replace the previous submission (CB 607-613).
On 12 August 2019, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (CB 620-640).
Tribunal’s Decision
The Tribunal’s decision is 21 pages long and comprises 95 paragraphs. The decision can be summarised as follows.
At [1]-[5], the Tribunal summarised the background to the application for review. This included an overview of the outcome of the delegate’s decision and noted when the applicant appeared before the Tribunal.
At [6]-[11], [31]-[35], [58]-[62] and [85], the Tribunal set out the principles applicable to the protection visa criterion, the principles relating to the assessment of an applicant’s credibility and the principles applicable to the complementary protection criterion. It also noted (at [12]) the relevant Ministerial Direction made under s.499 of the Act (which it was required to have regard to when considering the application).
At [13], the Tribunal noted that the issue before it was whether the applicant met the criterion in s.36(2)(a) or (aa) of the Act.
At [14]-[24], the Tribunal summarised the applicant’s migration history, accepted the applicant’s identity as claimed and referred to the applicant’s claims as made in his visa application, to the delegate and again confirmed to the Tribunal.
At [25]-[29], the Tribunal summarised the applicant’s evidence provided at the hearing. The Tribunal then extracted relevant portions of country information relating to the applicant’s claims from the latest Department of Foreign and Trade Report (at [30]).
The Tribunal then considered the applicant’s claim to be stateless. Relevantly, the Tribunal:
a)noted that it had put to the applicant the fact that there were documents which indicated that he was an Iraqi citizen and that he himself had stated in his previous visa that he was an Iraqi citizen (at [38], [40] and [44]);
b)noted the country information and advice that had been provided in relation to how a person obtains an identification document (like a letter the applicant provided to the UNHCR) and the prevalence of document fraud and bribery in relation to obtaining documents (at [41]-[42]);
c)summarised the applicant’s evidence in relation to how he obtained the letter and found that this was implausible (at [42]). The Tribunal did not accept that the applicant was provided with a letter from the Iraqi Embassy specifically stating that he was Iraqi without some proof of Iraqi citizenship. The Tribunal did not accept that the applicant was “stateless” (at [45]); and
d)further noted that, at the time the applicant was issued the letter from the Iraqi Embassy, the applicant was entitled to apply for and be granted Iraqi citizenship and that the letter would not have been provided to him if he were not (at [46]-[50]).
The Tribunal found that the applicant was not stateless and was an Iraqi national (at [51]). The Tribunal was satisfied that the applicant’s claims were to be determined with reference to Iraq as his receiving country (at [52]-[54]).
At [55]-[57], the Tribunal again summarised the applicant’s claims. It accepted that the applicant was a Faili Kurd and a Shia Muslim.
In relation to the applicant’s claim to be a Faili Kurd, the Tribunal accepted that some societal discrimination continues to occur, particularly in relation to economic and employment opportunities. However, the Tribunal found that there was only a low risk of any ostracism and, relevantly, the applicant’s resourcefulness and capabilities would allow him to obtain employment. The Tribunal further noted that as an Iraqi national, the applicant would not face the same difficulties as those who were not an Iraqi national. The Tribunal concluded that the applicant would not face serious harm if he were to return to Iraq (at [63]-[66]).
The Tribunal then assessed whether the applicant would face harm as a Shia Muslim and as a Faili Kurd Shia Muslim. The Tribunal referred to the country information and found that there was no real chance that the applicant would be harmed for these reasons if he returned (at [67]-[68]).
In relation to the applicant’s claims regarding his medical needs, the Tribunal:
a)noted that the applicant claimed that he suffers from hearing loss, epilepsy, opioid dependency, anxiety and depression, Hepatitis C and Post Traumatic Stress disorder (PTSD) (at [69]);
b)stated that there was an absence of any medical or psychological report regarding the current conditions and treatment of the applicant such that he would require ongoing treatment or indicating what level of care would be required. It was noted that the most recent clinical record provided by the applicant did indicate that he was not receiving any ongoing mental health or psychological treatment (at [70]-[71]);
c)found that the applicant would be able to access mental health services at a level commensurate to other Iraqis and would thus not face a real chance of serious harm because of his mental health needs (at [72]); and
d)noted that the applicant did not claim that he would be denied access to health services for a convention reason. Rather, the applicant claimed he would not be able to access services due to a general shortage. However, the Tribunal found that the applicant would not be denied medical care (at [73]).
The Tribunal noted that the applicant claimed that he required support for his drug and alcohol abuse when he returned to the community. The Tribunal referred to the country information on this issue and found that while there may be limited mental health and drug rehabilitation services available in Iraq, the applicant would have access to medical services and other services like drug rehabilitation programs at the same level as other citizens in Iraq. The applicant would not be denied these services and would not face a real chance of serious harm on the basis of his past or possible future use of illicit drugs and/or alcohol (at [74]-[77]).
In relation to the applicant’s claims that he would be harmed as a returnee from the West with criminal convictions, the Tribunal:
a)accepted that the applicant had advised the Iraqi Embassy of his convictions (at [78]);
b)referred to country information which indicated that double jeopardy was generally prohibited in Iraq and, as the applicant had served his sentence in full, he would not suffer serious harm as a result of his criminal convictions (at [79]-[80]); and
c)noted the country information on returning asylum seekers and found that, while the applicant’s return would not be without difficulty, the applicant would not face harm on return to Iraq as a result of his criminal convictions (at [81]-[83]).
Having assessed the applicant’s claims individually and cumulatively, the Tribunal was not satisfied that the applicant met s.36(2)(a) of the Act (at [84]).
Applying the findings that it made in relation to the refugee criterion (noting that the “real chance” test was the same as the “real risk” test), the Tribunal found that the applicant did not face a real risk of significant harm (at [87]).
At [89], the Tribunal found:
The applicant made a general claim in relation to the general violence that Faili Kurds suffered under the regime of Saddam Hussein. However, based on the reasons detailed in paragraphs 63 to 68 in these reasons and the relevant country information, the Tribunal finds that there is no real risk of the applicant being significantly harmed by reason of being Faili Kurd or a Shia Muslim upon his return to Iraq. In addition, for the reasons detailed above, the Tribunal finds that there is no real risk of the applicant suffering significant harm by reason of him being deprived of medical treatment, psychological care or treatment for his drug and alcohol dependence or as a returnee from a Western Country with criminal convictions as claimed. Finally, the applicant referred to other disabilities in his claim but did not provide any specific evidence of such disabilities. As a result, the Tribunal finds that there is no evidence to support such a claim and finds that there is no real risk that the applicant will suffer significant harm on his return to Iraq as a result of the disabilities as claimed.
The Tribunal found that the applicant did not meet s.36(2)(aa) of the Act (at [91]).
The Tribunal affirmed the decision not to grant the applicant the visa (at [92]-[95]).
Proceedings in this Court
The application for judicial review contains seven grounds of review, as follows:
1. The Tribunal did not take into consideration relevant laws and regulations.
2. The Tribunal took into consideration irrelevant laws and regulations.
3. The Tribunal based its decision not on facts, and laws
4. The Tribunal based its finding on wrongfully obtained documents.
5. The Tribunal did not take into consideration that the Applicant is a UNHCR Refugee.
6. The Tribunal wrongfully appointed itself as reviewing body of the UNHCR decision to grant the applicant Protection and refugee status.
7. The Tribunal did not take into consideration the Country Information Report (October, 2018) prepared by the Australian Department of foreign affairs which it clearly speaking about minority Filli Kurds in Iraq.
In orders made on 2 October 2019 the applicant was given an opportunity to file any amended application, affidavit evidence and written submissions prior to the hearing. No documents were filed.
The applicant appeared before the Court without legal representation. He was assisted by an Iraqi Arabic interpreter.
It is usually appropriate for an unrepresented party to be afforded an opportunity to explain orally the matters that are said to give rise to an appeal (or review) ground: DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8].
The first time this the matter was heard (being 17 February 2020) the Court gave the applicant an opportunity to make oral submissions.
To assist the applicant, the Court explained that the only issue before it was whether the Tribunal fell into jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision maker fails to consider the entirety of an applicant’s claims (or “integers” of the claims) as made: Minister for Immigration & Citizenship v SZRKT (2013) 302 ALR 572 at [111];
f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
The Court also explained to the applicant that this Court cannot undertake a “merits review” of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. This Court cannot grant him the visa he seeks. Rather, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above.
The applicant was asked to explain what he thought the Tribunal “did wrong”. Unfortunately, the applicant made no substantive submissions.
Despite the applicant’s unwillingness to engage with the Court, the Court remained mindful that where an applicant is unrepresented and may not have adequate knowledge and an ability to prepare for, or understand, what is required of them, the Court should remain astute to the possibility of legal error in the Tribunal’s decision and should raise concerns with the Minister: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 (“MZAIB”).
Noting the decision in MZAIB, the Court adjourned the hearing. The Court had identified an issue which required the Minister to provide further written submissions. That issue related to concerns the Court had with whether the Tribunal had adequately turned its attention to the issue before it or whether it had simply “cut and pasted” the delegate’s decision without reference and without independent analysis of the sort expected, and indeed required, from the Tribunal.
The matter reconvened on 21 April 2020. On that occasion, the applicant sought an adjournment. He stated that he had been in contact with a lawyer the day prior, he had been unable to sleep the night before the hearing and his father was unwell. While the Court was sympathetic to the applicant, this matter had already been part heard, the applicant is in immigration detention (such that the matter should not be protracted), there is no right to legal representation and the applicant had not given any indication that he was unable to participate in the proceeding. The Court indicated that, in the circumstances, it would hear the application on the day allocated.
When asked if there was anything further that the applicant wished to say to the Court, and whether there was anything he thought that the Tribunal “did wrong”, the applicant submitted that the decision was “unjust”.
Unfortunately, the oral submissions made at the hearing on 21 April 2020 were in the nature of pleas to the Court. They did not identify any jurisdictional error.
This then requires the Court to assess the applicant’s grounds of review and the “further issue” of concern discussed above at [50].
Consideration
Grounds 1 and 2
1. The Tribunal did not take into consideration relevant laws and regulations.
2. The Tribunal took into consideration irrelevant laws and regulations.
The applicant has not identified what “relevant laws and regulations” were not taken into account. Nor has he identified what “irrelevant laws and regulations” were taken into account.
The Tribunal correctly identified (at [13]) that the issue before it was whether the applicant met s.36(2)(a) or s.36(2)(aa) of the Act. The Tribunal also correctly referred to the relevant “definitions” of the matters referenced in s.36(2)(a) and 36(2)(aa) of the Act (such as ss.5J and 36(2A)).
The Tribunal’s summary of those provisions, and the legal principles in relation to them, was accurate and detailed. The Tribunal correctly referred to s.5AAA of the Act which, the Court notes, was in effect at the time the applicant applied for the visa.
Insofar as the applicant claims the Tribunal erred by taking into account irrelevant laws and regulations, the only matter the Court can identify that might be relevant is the reference to the Iraq Constitution, the Iraqi Nationality Law and the Iraqi Penal Code.
These laws and regulations were relevant to the assessment of the applicant’s claims. They were directly relevant to the question of whether the applicant was an Iraqi national and whether he would face a real chance or risk of harm.
Further, the delegate relied on the same Iraqi laws. The applicant’s representative referred to the Iraq Constitution and the Iraqi Nationality Law (CB 121, 566 and 612). It was clearly recognised by the applicant’s representative that they were “relevant” and the agent addressed these in her submissions.
No error arises in this regard. Grounds 1 and 2 are, accordingly, dismissed.
Ground 3
3. The Tribunal based its decision not on facts, and laws
This ground is not entirely clear.
Here, the Tribunal:
a)assessed the applicant’s evidence and information to make the necessary factual findings in relation to his claims. In particular, the Tribunal made findings in relation to the applicant’s nationality, country of reference, religion, ethnicity and disabilities;
b)analysed the country information and applied it to the applicant’s circumstances (i.e., the findings it had made in this regard); and
c)applied the legal principles relevant to the criterion for the grant of the visa to determine if it was satisfied that the criterion were met.
It cannot be said that the Tribunal misunderstood or did not apply the “correct law”.
It appears that the applicant is simply disagreeing with the findings made by the Tribunal and seeks impermissible merits review.
Ground 3 is, accordingly, dismissed.
Ground 4
4. The Tribunal based its finding on wrongfully obtained documents.
Again, it is unclear what the applicant is referring to when he refers to “wrongfully obtained documents”.
In his visa application the applicant consented to the Australian Government making:
Any enquiries necessary to determine my eligibility for grant of a protection visa in Australia and to use any information supplied in this application for that purpose.
If the applicant is referring to the letter from the Embassy in Jakarta which states that the applicant was an Iraqi citizen, in circumstances where that document was provided to the UNHCR there is nothing to suggest that these documents were “unlawfully obtained”.
Further, the applicant was given an opportunity to comment on this information and did, in fact, do so. It cannot be said there was a denial of procedural fairness because the Tribunal had regard to these documents. If the applicant took issue with the Tribunal considering them as they were “wrongfully obtained”, he should have made submissions to that effect because they were clearly a critical part of the delegate’s findings. Instead, the applicant provided an explanation as to how he obtained the documents (which the Tribunal ultimately did not accept because the advice and country information it received indicated that the applicant’s explanation was not plausible). No error arises in this regard.
There are otherwise no documents that the Tribunal considered which were not provided by the applicant himself, were country information or was information that was put to the applicant.
Ground 4 is, accordingly, dismissed.
Grounds 5 and 6
5. The Tribunal did not take into consideration that the Applicant is a UNHCR Refugee.
6. The Tribunal wrongfully appointed itself as reviewing body of the UNHCR decision to grant the applicant Protection and refugee status.
The Tribunal did acknowledge that the applicant was recognised as a UNHCR refugee (at [15], [23] and [38]). However, whether or not the applicant was a UNHCR refugee was not a criterion for the grant of the visa. The Tribunal was not obliged to consider it.
The Tribunal did not appoint itself as the reviewing body of the UNHCR decision. As the Tribunal noted, the issue before it was whether the applicant met ss.36(2)(a) and 36(2)(aa) of the Act.
In FRO17 v Minister for Immigration and Border Protection [2019] FCA 969 (“FRO17”), the applicant alleged that he was recognised by the UNHCR as a refugee. Of note, the Immigration Assessment Authority in FRO17 did not grant the applicant a protection visa. It was held by the Court that even if the applicant was a UNHCR refugee (which was not entirely clear on the materials), there was no error in the Immigration Assessment Authority affirming the decision not to grant the visa. It was said that the UNHCR status was a piece of evidence that was not sufficiently important such that a failure to consider it amounted to a jurisdictional error.
The same reasoning applies here.
Here, the UNHCR found that the applicant did not hold a well-founded fear of persecution. However, under the extended mandate he was granted refugee status because of generalised violence in the region. Hence, the UNHCR status could not corroborate his claim to have a well-founded fear of persecution and the applicant did not claim to fear harm on the basis of generalised violence in the region.
The Tribunal did not fail to consider the applicant’s UNHCR status and did not appoint itself the reviewer of the UNHCR determination. Rather, the Tribunal simply assessed whether it was satisfied that the applicant met the criterion to be granted the visa.
Grounds 5 and 6 are, accordingly, dismissed.
Ground 7
The Tribunal did not take into consideration the Country Information Report (October, 2018) prepared by the Australian Department of foreign affairs which it clearly speaking about minority Filli Kurds in Iraq.
The weight attached to country information is a matter for the Tribunal: NAHI v Minister for Immigration & Multicultural Affairs [2004] FCAFC 10 at [11]-[14].
In any event, this ground fails on a factual level.
The Tribunal extracted a portion of the country information which was specific to Faili Kurds. When assessing the applicant’s claims regarding his being a Faili Kurd, the Tribunal referred to the 2018 Department of Foreign Affairs and Trade Country Information Report (the “2018 DFAT Report”) on a number of occasions (see fnn.32-34 and 37-38 of the Tribunal’s decision).
It cannot be said that the Tribunal did not “consider the country information”. It actively cited that information and relied upon it when making its findings.
Ground 7 is, accordingly, dismissed.
Otherwise
As noted above, the Court is mindful that where an applicant is unrepresented and may not have adequate knowledge and an ability to prepare for, or understand, what is required of them, the Court should remain astute to the possibility of legal error in the Tribunal’s decision and should raise concerns with the Minister: MZAIB.
Here, the Court raised concerns with the Minister over what appeared to be a “somewhat troubling” similarity between the Tribunal’s decision and the delegate’s decision.
The Minister sought an adjournment to provide written submissions. The Court granted the adjournment, allowed the Minister to file written submissions and allowed the applicant an opportunity to reply. As noted above, the matter was adjourned part heard and returned for further oral submissions on this particular issue on 21 April 2020.
The Minister filed further submissions on 16 March 2020. The applicant filed no further submissions. The Court will reference the Minister’s submissions in the consideration that follows.
In relation to the similarities of concern between the Tribunal’s decision and the delegate’s decision, the Court notes:
a)“The applicant’s migration history” (at [14]-[18]) and “The Applicant’s Identity” (at [19]-[20]) is almost identical to Part 3 of the delegate’s decision;
b)the Tribunal’s consideration of the applicant’s medical needs is significantly similar to the consideration provided in the delegate’s reasons. Specifically, [69]-[70] and [72] are in similar terms to the delegate’s assessment of the applicant’s medical needs;
c)the Tribunal’s conclusion in relation to the “Drug and alcohol abuse” at [77] is an almost verbatim copy of the delegate’s decision; and
d)the Tribunal’s discussion at [79]-[83] of the applicant’s claims to fear harm as a returnee from a Western Country with criminal convictions is, again, almost identical to the assessment provided in the delegate’s decision.
Here, the Court accepts that there are portions of the Tribunal’s decision which (arguably) indicate that the Tribunal attempted to engage with the claims and evidence before it. Relevantly, the Tribunal provides a summary of the applicant’s evidence (at [25]-[29]) and attempts to independently consider the applicant’s stateless status and his fear of harm as a Faili Shia for itself. However, as a whole, and for the reasons that follow, this is simply not enough.
In MZZZW v Minister for Immigration & Border Protection [2015] FCAFC 133, the Full Federal Court considered whether the copying of a previous reviewer’s reasons amounted to a jurisdictional error. The Court remarked as follows (at [30]):
As the appellant recognised, this ground could have been expressed in a variety of ways. There is not necessarily one “correct” characterisation of a miscarriage of the Tribunal’s task of the kind with which we are concerned. In Huluba v Minister for Immigration and Ethnic Affairs [1995] FCA 1561; 59 FCR 518 (about which we say more below), Beazley J characterised the error as a denial of procedural fairness. In LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90; 203 FCR 166, the Full Court characterised it as a constructive failure to exercise the jurisdiction conferred by the Administrative Appeals Tribunal Act 1975 (Cth) on the Tribunal. In other cases, substantial copying has been contended to disclose bias: SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81; 314 ALR 146; Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45; 200 FCR 223. It could also be described as a failure to discharge the statutory function, and indeed that is one of the descriptions used in LVR (at [91]).
The Full Court in MZZZW (at [54]) referred to the following factors which, it determined, helped answer whether the Tribunal brought an “independent mind” to the review before it:
(i) the function of the decision-maker and the source of that function;
(ii) the source of the copied material;
(iii) the subject-matter of the copied material;
(iv) whether the copied material was controversial;
(v) the similarity of the claim to the claim from which the material was copied;
(vi) the extent of the copying;
(vii) whether the copied material was up to date;
(viii) whether the material was used in addressing the individual circumstances of an applicant, including credibility, particularly in evaluating the claim or application; and
(ix) whether the fact of copying and the source of the copied material was acknowledged.
(See LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90 at [92])
Here, the Court is required to examine not only the extent of the copying, but the nature, context and degree of the copying and each case must turn on its own factual circumstances.
Here, the Tribunal’s copying of the delegate’s reasons did not result in the Tribunal adopting the delegate’s credibility findings. Rather, it resulted in the Tribunal adopting the delegate’s reasoning and use of the relevant country information.
In assessing whether there is an error generally in this regard, the Court will turn its attention to the particular “portions” of the Tribunal’s decision that it has identified as being “of concern”.
The applicant’s migration history and identity
As noted, the Tribunal’s summary of the applicant’s migration history and identity was substantially identical to Part 3 of the delegate’s decision. Where there are differences, these represent little more than syntactical modifications.
The Minister submitted that these matters were not controversial and were not determinative of the issues arising in this matter.
While perhaps undesirable, the Court does not attach significance to the Tribunal’s decision to, in effect, “copy” the delegate’s summary of the applicant’s migration history.
As the Minister submitted, the applicant’s migration history was not controversial. The subject matter (being the applicant’s migration history) was not significant to the Tribunal’s consideration of the applicant’s claims. There had been no changes to the applicant’s migration history and the Tribunal did cite the delegate’s decision as a source of the information (on one occasion).
While the extent of the copying is significant (and arguably undesirable), the nature, context and degree of the copying is not significant and the Court is satisfied that no jurisdictional error arises.
The applicant’s medical needs
Relevantly, the Tribunal states:
69. The applicant claims that as a result of his medical conditions there is a real chance he will suffer serious harm in the event that he is returned to Iraq, particularly by reason of the fact that he will not be able to access appropriate medical treatment in Iraq. He submits that he needs to remain in Australia so that he is assured of receiving medical treatment. By his written claim, the applicant states that he suffers form medical conditions, including mental health issues, disabilities and other health complaints. The applicants evidence to the delegate was that he suffers from hearing loss, epilepsy, opioid dependency, anxiety and depression, Hepatitis C and Post Traumatic Stress Disorder (PTSD) and that he requires treatment for all these conditions. The applicant provided a print out of his clinical record from the health service provider contracted by the Department, International Health and Medical Services (IHMS). The record shows that the applicant is on methadone treatment for methamphetamine dependency that he is a diabetic and he has Hepatitis C. His medical records indicate that he has been taking illicit drugs while in detention and he is regularly treated for headaches and other minor issues. Other than those medical conditions and health complaints contained in the IHMS, the applicant otherwise did not provide any evidence of any further mental health issues, disabilities or health complaints from which he suffers.
70. The applicant submitted that the IHMS reports listed 17 incidents that relate to the applicant harming himself. The majority of such incidents were said to have occurred in 2015 and 2016 with the most recent on 4 April 2018. On that occasion, the IHMS report indicates that a fellow detainee reported that the applicant was going to selfharm unless he got the bottom bunk in his room, a fact which was denied by the applicant. The applicant supplied a report from Foundation House dated 14 June 2016 which does not provide any insight into the applicant’s medical needs. The applicant has not provided any medical or psychological report that would assist the Tribunal in determining his current condition and if he requires ongoing treatment.
71. While the IHMS indicates that the applicant suffers from depression and PTSD there is no evidence that the applicant requires ongoing medical treatment for those conditions. The applicant did not provide any medical or psychological report in relation to his current condition. The Tribunal accepts that by being held in detention the applicant may become depressed and suffer from anxiety. However, given the lack of medical evidence, it is not able to assess the level of care required by the applicant. However, it notes that the IHMS reports more recent consultations have involved the administration of methadone treatment and more general health care rather than ongoing mental health or psychological treatment. As such, there is no evidence that the applicant suffers from ongoing mental health issues that would significantly differentiate him from Iraqi society.
72. The country information reports that mental health care services are available in Iraq. The bulk of those services are located in Baghdad, close to the applicant’s previous home in Waist. There are also services located in the southern governorates. The reports do indicate however, that the level of mental health care is limited in Iraq as against the size of the population. However, the Tribunal has found that the applicant is an Iraqi national and as such there is no evidence that he would be denied mental health services. He would be entitled to such services commensurate with other citizens of Iraq and as such does not face real chance of being seriously harmed on account of his mental health needs.
73. The applicant claimed that he suffers for hearing loss, epilepsy, opioid dependency, anxiety and depression, Hepatitis C and PTSD for which he requires treatment. However, the applicant did not provide any medical report as evidence that he suffers from each condition as claimed and to what degree. The applicant did not claim that he would be denied medical treatment in Iraq by reason specified in s.5J(1)(a) of the Act or a convention reason. He has, however, claimed that he will not be able access appropriate medical treatment and psychological treatment in Iraq due to a general shortage of medical care. However, the country information indicates that Iraq has a mixture of public and private hospitals, and primary health care is provided by both private and public clinics. While it states that health infrastructure suffered from decades of conflict, it notes that even before the rise of ISIL, many primary health are facilities were under-resourced. Nevertheless, the Tribunal has found that the applicant is an Iraqi national and as such there is no evidence he would be denied medical care in Iraq. As a result, the Tribunal finds that the applicant would be able to access health care in Iraq at the same rate as other citizens. Accordingly, the Tribunal finds that there is no real chance the applicant will be seriously harmed by reason of being denied access to health care services in Iraq.
The delegate’s decision, in turn, provided as follows:
It has been submitted that the applicant’s medical conditions are likely to put him at a risk of harm, particularly if he is unable to access medical treatment in Iraq. It is submitted that he needs to remain in Australia, for a number of reasons, including being assured of medical treatment. The applicant reports to suffer from hearing loss, epilepsy, opioid dependency, anxiety and depression, Hepatitis C and Post Traumatic Stress disorder (PTSD) and that he requires treatment for all of these conditions. The applicant provided a print out of his clinical records from the health service provider contracted by the department, International Health and Medical Services (IHMS). The records note that he is on methadone treatment for methamphetamine dependency, he is diabetic and he has Hepatitis C. His medical records indicate that he has been taking illicit drugs while in detention and he is regularly treated for headaches and other minor issues. The report shows limited mental health consultations with the most recent mental health consultation being on 4 April 2018, the consultation was conducted because another detainee reported that the applicant was going to self-harm unless he got the bottom bunk in his room. The report indicates that the applicant denied making comments of self-harm. While the medical records indicate that the applicant has suffered from PTSD and depression, there is no evidence that the applicant requires ongoing treatment for those conditions. Likewise, there is no evidence that the applicant suffers from ongoing mental health concerns that would significantly differentiate him from Iraqi society. The applicant has provided a report from a counsellor from Foundation House. The report is dated 14 June 2016 and it does not provide insight into the applicant’s current medical needs.
The medical evidence provided by the applicant indicates that he has a number of physical medical conditions and while there is no evidence of ongoing mental health concerns that require treatment, he has suffered from PTSD and depression previously. While the applicant may require medical treatment in the future, he has not claimed that he would be denied medical treatment in Iraq for a reason specified in s5J(1))a) of the Act, or a convention reason. It has only been submitted that the applicant would not be able to access appropriate medical and psychological care in Iraq due to a general shortage of medical care. While it has been submitted that the lack of medical care available to the applicant in Iraq would compound any harm that he would experience as a stateless person, as already discussed, it has been found that the applicant is not a stateless person of Iraq. There is no claim or evidence before me that he would be directly denied medical care for a reason that would result in him being owed protection. The applicant is a citizen of Iraq and the information sources cited in this assessment indicate that the applicant would have access to medical services at the same rate of other non-Faili Kurd citizens.
I note that reports indicate that there are mental health services available in Iraq. The bulk of those services are located in Baghdad, which is located near the applicant’s previous home location of Wasit. There are also services located in the southern governorates. The reports do indicate that mental health services are limited when considered against the size of Iraq’s population. The reports also note that trauma and psychological conditions have increased in number since the 2003 US led military interventions and the more recent rise and fall of Islamic State in Iraq. However, as noted the applicant would have access to medical services commensurate to that of other citizens of Iraq and he would not face a real chance of targeted harm, or persecution on account of his medical needs.
The passages highlighted in bold above are substantially similar, at times identical.
It is clear that the extent of the copying is “significant”.
The Minister submits that these paragraphs are mere summaries of the applicant’s claims and the relevant country information and, as such, are not controversial.
While the Court might have worded the submission differently, the Court does not find that the Tribunal did not independently assess the applicant’s claim in relation to his medical needs.
Relevantly, the Court notes:
a)at [72], the Tribunal copied the delegate’s summary of the country information. An inference cannot be drawn that the Tribunal did not properly consider the evidence as a result of a copy and paste of relevant country information: WAFK v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1293 at [38] (“WAFK”). The Court further notes that the Tribunal here did, in fact, cite a more up-to-date source (the 2018 DFAT Report) when referring to other information; and
b)a large portion of the Tribunal’s “adoption” of the delegate’s decision relates to the medical reports that were before the delegate and the Tribunal. These were not updated by the applicant’s representative before the Tribunal. Further, the Tribunal acknowledged the applicant’s submission (which was not acknowledged in the delegate’s decision).
The Tribunal did not “whole-heartedly adopt” the delegate’s reasons. It referred to newer information (such as the 2018 DFAT Report) and other parts of the materials before it (like the applicant’s submission). It is also the case that no recent updated medical evidence had been provided to the Tribunal (as was noted by the Tribunal) so that the current level of care or treatment could be assessed.
The Court is satisfied that, here, the Tribunal independently considered the applicant’s medical needs.
Drug and alcohol abuse
At [77], the Tribunal stated as follows:
77. While there may be limited mental health and drug rehabilitation services available in Iraq as already noted, the applicant would have access to medical services and other services like drug rehabilitation programs at the same level as other citizens in Iraq. The applicant would not be denied the services for reasons of his ethnicity. As a result, the Tribunal finds that the applicant does not face a real chance of serious harm on the basis of his past or possible future use of illicit drugs and/or alcohol.
The delegate’s decision, in turn, stated as follows:
While there may be limited mental health and drug rehabilitation services available in Iraq, as already noted the applicant would have access to medical services and other services, like drug rehabilitation programs at the same level as other citizens in Iraq. The applicant would not be denied these services for reason of his ethnicity and I find that he does not face a real chance of persecution on the basis of his past or possible future use on illicit drugs or alcohol.
The “conclusions” here are identical.
The Minister submits that this paragraph alone (while containing a conclusion) does not give rise to jurisdictional error as the conclusion arises directly from the relevant country information. It is submitted that it is unsurprising that the delegate and Tribunal reached the same conclusions.
While less than ideal, when considered in context, the Court nonetheless considers that the Tribunal has properly considered the applicant’s claim in relation to his drug and alcohol use.
While [74] of the Tribunal’s decision is similar to the first paragraph of the delegate’s consideration on this issue, the Tribunal’s consideration at [75]-[76] differs. The Tribunal relies on different country information sources and referenced more updated and specific information than that which is referenced in the delegate’s decision (such as government collaboration and prevention efforts).
While the Tribunal may have adopted the wording of the delegate’s conclusion, the reasoning relevant to that conclusion, and the evidence and materials relied upon, differed from the delegate’s decision and reflects an independent assessment on the part of the Tribunal.
The applicant returning from a western country
Paragraphs [78]-[83] of the Tribunal’s decision are as follows:
78. The applicant claims that he would experience harm as a result of his ethnicity and the fact that he would be seen as a returnee from the West with a criminal record. The Tribunal notes that the applicant has informed the Iraqi Embassy in Canberra of his criminal convictions in Australia by a letter dated on 18 January 2019 and as result accepts and finds that the Iraqi authorities have been notified of the applicant’s criminal offences in Australia. The applicant has convictions in Australia for false imprisonment, recklessly causing injury, theft, contravention of family violence intervention order, making a threat to kill, failure to answer bail, driving offences, resist police, traffic a drug of dependence and deal property suspected of being proceeds of crime.
79. The country information indicates that double jeopardy is prohibited under Iraqi law. The Constitution of Iraq 2005 states that double jeopardy is prohibited unless new evidence is produced. It also indicates that offences committed overseas can only be tried inside Iraq in limited circumstances. Iraq’s 1969 Penal Code states that no legal proceeding can be brought against a person who commits an offence outside Iraq except by permission of the Minister of Justice. In addition it states that states that a person cannot be tried if (a) a foreign court has made a final decision to acquit or convict a person, and any imposed sentence has been served in full; or (b) if the proceeding or sentence has been annulled or quashed in the final sentence or annulment or trial or quashing of the sentence falls within the jurisdiction of the law of the land where the judgement was made. There are exceptions to this rule that relate specifically to offences that affect the security of the State.
80. The applicant has been convicted of crimes in Australia and has served the imposed sentence. He is not subject to any ongoing criminal charges. Therefore, in circumstances where double jeopardy is generally prohibited in Iraq (subject to certain exceptions of which the applicant would not face as he was convicted of crimes in Australia), there is no real chance the applicant will suffer serious harm in Iraq as a result of having been charged and convicted of crimes in Australia.
81. Iraqis who possess the required identity documents would not be arrested on return to Iraq even if they had left illegally. Iraqi nationals require a valid passport, an expired Iraqi passport, or a laissez passer (an emergency travel document issued by an Iraqi Embassy) to return to Iraq. The authorities will arrest an Iraqi person on return to Iraq if they have committed a criminal offence and a warrant had been issued for their arrest. Others, even persons who left Iraq illegally, would not be subject to arrest on arrival. Although irregular exit from Iraq, including through the use of fraudulent documentation, is illegal, DFAT has stated it is not aware of any prosecutions of individuals for irregular exit.
82. The country information reports that failed asylum seekers would not be harmed following the return to Iraq. However, it is acknowledged that returning to Iraq may be difficult for those who do not return to the original community and who may have no familiar support. As already noted, the applicant is a member of the Shia Muslim majority. There are Faili Kurds living throughout Iraq, including the applicant’s home location of Wasit. While there are strict sponsorship requirements for people wanting to relocate to Southern Iraq, the Kurdistan Region of Iraq and Baghdad, particularly for Sunni Muslims, the applicant would not face such barriers upon his return to his home location of Wasit. DFAT advises that the practice of people departing Iraq to seek asylum overseas and then returning once conditions permit is one that is well accepted by Iraq. The reasons for returning vary but include reuniting with family, establish and manage business or to take up employment.
83. While the applicant has not lived in Iraq since 1981 at the age of six and his return would not be without difficulties and would include a period of significant adjustment, the country information indicates that he would not face a real chance of serious harm upon his return to Iraq or in the foreseeable future by reason of his criminal convictions outside Iraq.
Save for minor syntactical changes and minor re-wording, [78]-[83] of the Tribunal’s decision in relation to the applicant returning from a Western country are identical to what is found in the delegate’s decision. The emphasised portion above make this clear.
The Minister submits that [78]-[83] are mere summaries of the applicant’s claims and the country information and, as such, not controversial. The Minister submits that [80] and [83] are conclusions relevant to the country information and it was open to the Tribunal to adopt those conclusions in light of the country information. It is said that these conclusions were “the only conclusions” open on the evidence.
The Court disagrees.
At [80], the Tribunal expressly states that the applicant is not at risk or chance of harm as a result of his having been charged and convicted of crimes in Australia. The Tribunal, in addressing the applicant’s claim to face harm as a returnee from the West with a criminal record, essentially disposed of the claim that the applicant did not have a real chance of harm on a basis that was entirely derived from the delegate’s decision.
The Court accepts that the Tribunal refers to country information. The Court has no issue with the Tribunal using the country information used by the delegate. Of concern, however, is the fact that the Tribunal does not diverge from the delegate’s consideration of this claim in any way or at all. That is, under the heading “As a returnee from a Western Country with criminal convictions”, a section in which the Tribunal is purportedly “considering” this claim, the Tribunal adopts the delegate’s reasons in its entirety. Here, it is patently clear that the Tribunal does not engage with this claim as it should have. It simply cuts and pastes a conclusion made by someone else.
The Minister’s submissions that the Tribunal only adopted the country information and the conclusions drawn from that country information, and that those were the only conclusions open to be drawn must also be rejected.
First, the Court does not have the country information before it. Second, while it may be the case that the conclusions drawn were those open on the country information, it is not sufficient for the Tribunal to dispose of an entire integer of an applicant’s claim in this manner. Here, the Tribunal gives no indication that it actually did read or even look at the country information when assessing this claim. It simply “overlooked” it and relied on someone else to do what it should have done.
The Tribunal’s error was material. It deprived the applicant of the possibility of a successful outcome. Had the Tribunal turned its own mind to the relevant claim, there is nothing to suggest that it might not have reached a different view in light of the applicant’s particular circumstances. The Court is simply not prepared to find that the error was not material in circumstances where the Tribunal has so blatantly failed to engage with the evidence before it.
The Court is not satisfied that the Tribunal’s findings are its own. Overall, the Court is not satisfied that the Tribunal has properly, actively and intellectually consider a relevant integer of the applicant’s claims for protection. There is no attempt by the Tribunal to articulate its own view of the protection claim in question. The Tribunal adopted the reasoning processes, findings and conclusions of the delegate about the applicant as if these were its own: MZZZW at [72].
The extent, nature, scope and degree of the Tribunal’s adoption of the delegate’s reasoning in relation to this claim is such that it has failed to undertake its statutory task in a material way.
The Tribunal has, accordingly, fallen into jurisdictional error.
Conclusion
The Court has serious concerns with the Tribunal’s approach to decision-making in relation to this applicant.
The Court does not consider that the approach adopted by the Tribunal here was, or is ever, appropriate. The Tribunal’s task is to review the decision afresh.
While the Tribunal is entitled to have regard to another decision-makers reasons and can adopt a “cut and paste technique” with country information summaries (see, WAFK at [38]), there is a line to be drawn.
The Court does not agree with the Minister that, whilst there is some repetition of background information, the applicant’s claims and evidence, and country information, there is no copying of the reasoning on matters of significance to the determination of the application for review by the Tribunal. The sheer extent of copying and resulting similarity between the two decisions is, in the Court’s view, unacceptable. This leads the Court to infer that the Tribunal did not undertake the requisite deliberative assessment of the relevant facts and circumstances before it.
When reading the Tribunal’s decision as a whole, the Court is satisfied that the Tribunal failed to exercise its statutory jurisdiction to review the decision and, at a most basic level, failed to actively, independently and critically engage with the applicant’s claim to fear harm on the basis of being an asylum seeker.
Conclusion
Having assessed all of the evidence and submissions before it, the Court is satisfied that the Tribunal has fallen into error by failing to properly exercise its jurisdiction.
It follows for the reasons provided above that that the matter must be remitted to the Tribunal for rehearing.
I certify that the preceding one hundred and thirty-five (135) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 8 May 2020
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