Egj19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1072
•24 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
EGJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1072
File number(s): SYG 2804 of 2019 Judgment of: JUDGE DRIVER Date of judgment: 24 June 2021 Catchwords: MIGRATION – review of Immigration Assessment Authority decision – refusal of a protection visa – applicants claiming a fear of harm in Sri Lanka – applicants disbelieved in part and other fears found not to be well-founded – whether the Authority erred by not considering properly the adult applicants’ access to mental health services in Sri Lanka – no jurisdictional error Legislation: Migration Act 1958 (Cth) s 5J Cases cited: AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503
BHD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 151
GBV18 v Minister for Home Affairs [2020] FCAFC 17
Markaj v Minister for Immigration and Border Protection [2020] FCA 1511
Minister for Immigration and Multicultural Affairs v WABQ [2002] FCAFC 329
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
PQSM v Minister for Home Affairs [2020] FCAFC 125
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 197
Number of paragraphs: 42 Date of hearing: 19 May 2021 Place: Sydney Counsel for the Applicants: Mr O Jones Solicitor for the Respondents: Ms S Lloyd of HWL Ebsworth ORDERS
SYG 2804 of 2019 BETWEEN: EGJ19
First Applicant
EGK19
Second Applicant
EGM19 (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
24 JUNE 2021
THE COURT ORDERS THAT:
1.The application the subject of leave granted on 19 May 2021 is dismissed.
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
The applicants seek judicial review of a decision of the Immigration Assessment Authority (Authority) made on 9 October 2019. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas.
The following statement of background facts is derived from the submissions of the parties.
The first and second applicants are husband and wife. The third (daughter) and fourth (son) applicants are their children and are minors.[1]
[1] Court Book (CB) 6
On or about 20 April 2013, the applicants arrived at Cocos (Keeling) Islands by boat.[2]
[2] CB 22
On 16 May 2016, the applicants were invited to apply for a temporary protection (subclass 785) visa or a Safe Haven Enterprise Visa (SHEV).[3]
[3] CB 45
On 14 March 2017, the first applicant (applicant) applied for a SHEV, including his wife and children as part of his application.[4]
[4] CB 61
In a statutory declaration annexed to his application, the applicant claimed that if he and his family were returned to Sri Lanka, he feared he would be harmed because he was a Tamil accused of links to the Liberation Tigers of Tamil Eelam (LTTE) and that the second and third applicants would be sexually assaulted.[5] The applicant claimed:
(a)in 2004, the applicant was taken by the Criminal Investigation Department (CID) and held in custody for about one week, during which time he was beaten. A police officer who knew him organised his release;
(b)the applicant's son was killed soon after he was born in 2005 because the applicant had been accused of having links with the LTTE;
(c)in 2006, the CID also visited his shop and stated that they had information which connected the applicant to the LTTE. The CID interrogated the applicant;
(d)in August 2006, the applicant was detained by the authorities for three months, during which time he was accused of travelling to a named location to assist the LTTE by providing information and was beaten, tortured and forced to eat meat, which was against his Hindu beliefs (2006 detention incident);
(e)in 2007, the applicant travelled to India because he believed he would be killed in Sri Lanka.
(f)while the applicant was in India, the authorities visited his home, beat the second applicant and took various documents relating to the applicant (2007 assault incident); and
(g)whilst living in a refugee camp in India, the applicant was called to a meeting and his photograph was taken. He claimed his photograph was given to the authorities so that they would know who was at the Indian refugee camp.
[5] CB 98-103
In a separate statutory declaration, the second applicant claimed that if she were returned to Sri Lanka, she would be harmed because of her husband's alleged links to the LTTE and because she was a failed returning asylum seeker.[6] While also relying on her husband's claims, the second applicant separately claimed:
(a)she believed her second child died while in hospital because she was treated differently at the Sinhalese hospital as she was Tamil;
(b)three months after the 2006 detention incident, the CID started visiting the applicant's workplace and asked questions about his character;
(c)after the 2007 assault incident, she noticed that the CID were following her; and
(d)in March 2008, she joined her husband in India. They lived for two years in the Indian community and three years in an Indian refugee camp.
[6] CB 160-164
On 25 June 2019, the applicant and the second applicant attended separate interviews with the delegate.[7]
[7] CB 318
On 21 August 2019, the delegate refused to grant the applicants a SHEV.[8] The delegate noted that although she had documentary evidence which suggested that the applicant and the second applicant had Post Traumatic Stress Disorder (PTSD), this did not overcome the delegate’s credibility concerns in relation to the applicant and the second applicants’ claims. The delegate refused the applicants' SHEV application on the basis of adverse credibility findings and country information.
[8] CB 312-335
On 26 August 2019, the decision of the delegate was referred to the Authority for review.[9]
[9] CB 338
On 11 September and 17 September 2019, the applicants provided further material to the Authority, including written submissions, photographs, medical evidence, country information and further statutory declarations.[10]
[10] CB 347-414; 458-473
On 9 October 2019, the Authority affirmed the decision under review.
In summary, the Authority:
(a)was satisfied that there was not more than a remote chance the applicants would be harmed because of their Hindu religion if returned to Sri Lanka, now or in the reasonably foreseeable future;[11]
(b)was not satisfied that the either the applicant or the second applicant had been diagnosed as suffering from PTSD but did accept that both had been diagnosed with depression, had attended counselling, were taking medication, that the applicant had been reviewed by a psychiatrist, and the second applicant was being treated by a psychiatrist.[12] Further, while noting the scarcity of mental health services in Sri Lanka, the Authority was satisfied that the applicant and the second applicant would be able to access medical treatment and health services in that country;[13]
(c)was not satisfied that a child of the applicant and the second applicant had been killed because the applicant was suspected of involvement with the LTTE, or that the death was related to the applicants' Tamil ethnicity;[14]
(d)did not accept that the applicant had been detained for three months in August 2006, or that the second applicant had been visited by Sri Lankan security forces, beaten and threatened in January 2007, that she was followed by them, or that either applicant left Sri Lanka as a result of such treatment;[15]
(e)did not accept that the applicant had a profile such that there was a real chance of him being imputed with an LTTE connection, or of being detained under the Prevention of Terrorism Act. As the Authority was not satisfied that the applicant would be imputed with such connections, it did not accept that the second applicant would be harmed by Sri Lankan authorities;[16]
(f)did not accept that the second and third applicants faced a real chance of harm, including rape, on the basis of being Tamil women on their return to Sri Lanka;[17] and
(g)did not accept that the applicants would face a real chance of harm by reason of their return to Sri Lanka as failed asylum seekers.[18]
[11] CB 430 [29]
[12] CB 432 [36]
[13] CB 433 [39], CB 445 [78]
[14] CB 434 [43]
[15] CB 438 [54]
[16] CB 439 [59]
[17] CB 442 [67]
[18] CB 443 [71]
THE CURRENT PROCEEDINGS
These proceedings began with a show cause application filed on 30 October 2019. By order 5 made by Registrar Cridland on 21 November 2019, the applicants were given the opportunity to file and serve an amended application by 28 February 2020. The applicants did not avail themselves of that opportunity but written submissions prepared by counsel for the applicants and filed on 3 March 2021 raised a single issue in substitution for the grounds in the application. At the trial on 19 May 2021, the Minister’s solicitor did not oppose leave being granted for the filing of an amended application and I did grant leave. The ground of review now is:
The Second Respondent (Authority) made a jurisdictional error in relation to the access of the Applicants to mental health services in Sri Lanka.
a.The Authority may make a jurisdictional error where a finding of fact is legally unreasonable, in the sense that there is no evident and intelligible justification for the finding, and the error is material, in the sense that the decision might realistically have been different had the error not been mind: BHD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 151 at [29];
b.The Authority was required to give proper consideration to the Applicant’s case, in the sense of active intellectual engagement with the same. The Applicant’s case for this purpose extended to matters arising from the Authority’s own findings of fact. Proper consideration as a jurisdictional error should be subject to materiality: GBV18 v Minister for Home Affairs [2020] FCAFC 17 at [30], [32] and [39] per Flick, Griffiths and Moshinksy JJ; AYY17 v Minister for Immigration [2018] FCAFC 89; 261 FCR 503 at [18], [26] per Collier, McKerracher and Banks-Smith JJ; PQSM v Minister for Home Affairs [2020] FCA 125 at [142] per Banks-Smith and Jackson JJ; Singh v Minister for Immigration [2020] FCAFC 197 at [43]-[45] per Yates, Banks-Smith and Anderson JJ;
c.The Authority found at paragraph 38 of its decision that the United States Department of State report indicated that, while the law in Sri Lanka forbade discrimination against a person with mental disabilities, discrimination occurred in practice in the provision of state services including public transport.
d.The Authority further found at paragraph 38 of its decision that the report did not identify access to health services as an area of concern for discrimination;
e.The Authority found at paragraph 39 that country information did not indicate that access to mental health services was subject to discrimination;
f.The Authority’s finding that there was no indication in the report of discrimination in access to mental health services was without relevant justification given the content of the report;
g.The Authority’s finding that there was no indication in the report of discrimination in access to mental health services was made without proper consideration.
I have before me as evidence the court book filed on 24 January 2020 and a copy of the Sri Lanka 2015 Human Rights Report published by the United States Department of State in 2015 (US Country Report).[19]
CONSIDERATION
[19] Exhibit R1
Applicants’ contentions
The applicants focus on a particular aspect of the Authority’s decision and submit that the same aspect gives rise to more than one jurisdictional error. It is permissible for the applicants to argue in this fashion. While doing so may sometimes be “less than tidy”, it reflects the reality that the various categories of jurisdictional error may overlap.[20]
[20] Markaj v Minister for Immigration and Border Protection [2020] FCA 1511 at [27] per Kenny J
Legal unreasonableness in relation to findings of fact was examined by the Full Federal Court in BHD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[21] Allsop CJ, Collier and Colvin JJ stated the following at [29]:
There is no doubt that just because the alleged errors were factual enquiries does not mean they are precluded from constituting jurisdictional error: CRU18 v Minister for Home Affairs [2020] FCAFC 129 at [29]–[31]. However, an erroneous finding of fact will typically not amount, in and of itself, to jurisdictional error: CRU18 at [29] citing NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 at [9] (Heerey, Nicholson and Selway JJ). A finding of fact involving an error might constitute jurisdictional error if, for example, it is shown to be irrational, or unreasonable, or lacking in an intelligible justification (in the senses contemplated by authorities such as Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (French CJ, Hayne, Kiefel, Bell and Gageler JJ) and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at 647–648 [130] (Crennan and Bell JJ)). Further, in order to establish jurisdictional error, the factual error must be material in the sense that there is a realistic basis to consider that the decision maker’s ultimate conclusion might have been different if the alleged error had not been made: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at 134–135 [29]–[31] (Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at 433 [2]–[4] and 445–446 [45]–[50] (Bell, Gageler and Keane JJ); CRU18 at [37]. Where the impugned finding is but one of a number of findings that independently may have led to the IAA’s ultimate conclusion, jurisdictional error will generally not be made out: Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; 255 FCR 81 at [35(6)] citing Wigney J in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; 69 AAR 210 at [55]; CRU18 at [35]–[37].
[21] [2020] FCAFC 151
The jurisdictional error relating to proper consideration may be more briefly described. It requires active intellectual engagement with the applicants’ case. The applicants’ case extends to matters arising from findings of fact made by the Tribunal. Each case depends on its own circumstances so there is little utility in referring in detail to consideration of the error in other cases. Predictably enough, the courts have emphasised that a finding of want of proper consideration will not lightly be made and it is necessary in considering the error not to descend into the merits.[22]
[22] GBV18 v Minister for Home Affairs [2020] FCAFC 17 at [30], [32] and [39] per Flick, Griffiths and Moshinsky JJ; AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 at [18], [26] per Collier, McKerracher and Banks-Smith JJ
There should be no doubt that, like legal unreasonableness, the jurisdictional error of want of proper consideration requires the applicants to establish materiality.[23] In other words, and as in BHD18, the applicants must establish that there was a realistic possibility that the ultimate decision might have been different had the error not been made.
[23] compare, in relation to mandatory relevant considerations, PQSM v Minister for Home Affairs [2020] FCAFC 125 at [142] per Banks-Smith and Jackson JJ; see also, albeit in obiter, Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 197 at [43]-[45] per Yates, Banks-Smith and Anderson JJ
The applicants submit that the basic error by the Authority may be shortly stated. The Authority found that the US Country Report indicated that in practice there was discrimination against persons with mental disabilities in the provision of state services including public transportation. The Authority then found, accurately, that the US Country Report did not expressly refer to discrimination in access to mental health services. The Authority then is said to have erroneously found that the country information before it did not indicate such discrimination.
The US Country Report may not have expressly referred to disability discrimination in access to mental health services, however, it had referred to such discrimination in the provision of state services including public transportation. This is said to mean including, but not limited to, public transportation. It is said to follow that the US Country Report recognised disability discrimination in access to medical services. It may not have emphasised disability discrimination in this context, however, the applicants submit that the Authority was simply wrong to say the country information before it did not indicate discrimination in relation to access to medical services.
As to the question of materiality, the applicants submit that it is first necessary to clarify the disability discrimination recognised by the US Country Report and “erroneously disavowed” by the Authority. The applicants do not question the accuracy of the Authority’s summation of the content of the US Country Report. This is a finding of fact which, therefore, is undisturbed before the Court.[24]
[24] see, for example, Minister for Immigration and Multicultural Affairs v WABQ [2002] FCAFC 329 at [70] per Hill J
Accordingly, the applicants contend that, by the terms of the Authority’s decision, the US Country Report was referring to disability discrimination. Disabilities for this purpose are said to have included mental disabilities. Discrimination was in practice taking place in areas which may include access to mental health services. The applicants suffer from depression. They submit that there is no reason why this should not be classified as a mental disability. It might also be possible then to conclude that one cause of the scarcity of mental health services in Sri Lanka is disability discrimination.
It is then necessary for the purposes of materiality to proceed to the question of serious harm. Section 5J(5)(e) of the Migration Act 1958 (Cth) (Migration Act) refers, when defining serious harm, to the denial of a capacity to subsist. The findings already made by the Authority appear to prevent s 5J(5)(e) of the Migration Act from being satisfied, as they refer to the applicants’ business and employment activities notwithstanding their depression.
However, s 5J(5) of the Migration Act does not exhaust the meaning of serious harm for the purposes of the Migration Act. It is said to be plausible and, indeed, realistic to suggest that serious harm, on its ordinary meaning under s 5J(4)(b) of the Migration Act, might arise where a depressive person is denied treatment for that condition.
Resolution
The challenge to the Authority’s decision focuses on [38]-[39] of the Authority’s reasons where the Authority stated:[25]
Having accepted Applicant 1 and 2 have been receiving treatment in Australia for depression I consider they may wish to continue treatment if returned to Sri Lanka. I accept they will not have access to the same mental health treatment they have had in Australia, and there may be some disruption to their treatment and associated stress whilst transiting to Sri Lanka. However, universal free health care is available to all Sri Lankans via the public health system, though facilities vary, including in the north and east partly as a result of the destruction of facilities and the loss of human capital during the conflict, and some medicines and treatments may need to be purchased from private providers. According to DFAT, mental health services are scarce and there is a general lack of institutional capacity to respond to mental health care needs. Mental illness is not widely discussed and, anecdotally, there is a high prevalence of trauma related illnesses following the war.[26] The US Department of State reports that Sri Lankan law forbids discrimination against any person with disabilities, including mental disabilities, in employment, education, air travel and other public transportation, and access to health care. The report states that, however, in practical terms discrimination occurs in employment, education and the provision of state services including public transport, but does not identify access to health services as an area of such concern. That report also indicates that persons living with a disability face some societal discrimination in the form of negative attitudes and a level of social isolation.[27]
Although I accept mental health services are scarce and in high demand in Sri Lanka, the country information before me does not indicate there is discrimination in relation to access to medical services, including those for mental health. Considering the country information and the available evidence, I am satisfied the applicants, as Tamils with the mental health issues described, would not be denied or unable to access the medical treatment and the health services available in the public health system in Sri Lanka. Although the applicants may have difficulty accessing the same level of mental health treatment as they have had in Australia, I am not satisfied that would result from discriminatory denial of service that would constitute persecution, but rather resulting from lack of services generally. In addition, although I accept there is some stigma surrounding mental illness in Sri Lanka, taking into account Applicant 1 and 2 were able to engage appropriately with the delegate during the SHEV interview, that Applicant 2 told the delegate she and her husband ran a restaurant whilst in India, Applicant 1 has been able to engage in employment in Australia, and Applicant 2 indicated she was doing voluntary work in Australia and had done a course in Aged Care, and that they will have the support of a number of family members who remain in Sri Lanka, I am not satisfied the applicants would present in society as persons with obvious mental illness, such that he would experience the type of harm noted above, such as negative attitudes, discrimination or social isolation. Even if they were to experience negative attitudes, discrimination and social isolation, in the context of them returning as a family unit and with the support of other family members living in Sri Lanka, I am not satisfied such treatment would amount to serious harm for these applicants.
[25] CB 433-434
[26] DFAT, “DFAT Country Information Report: Sri Lanka”, 23 May 2018, CIS7B839411064
[27] USDOS, “Sri Lanka – Country Report of Human Rights Practices 2015”, 13 April 2016, OGD95BE926320
At [40] the Authority concluded for present purposes:
Overall, I am not satisfied that any harm they experience as a result of their mental health and accessing treatment in Sri Lankan, amounts to serious harm, or that the applicants have a wellfounded fear of persecution as a result of their mental health, including because they are Tamils who originate from the north, and who have resided in the west of Sri Lanka, even should they return to the north of Sri Lanka.
The Authority’s reasons otherwise comprehensively addressed the significant number of issues raised by the applicants in their visa application and thereafter and also dealt extensively with new information proffered by the applicants to the Authority. The Authority’s decision and reasoning in relation to those other matters is not under challenge.
Given the wide ranging nature of the review, and the narrow challenge made by the applicants, a serious issue of materiality would arise in the event that error was found in respect of the ground now advanced by the applicants. It is, however, unnecessary to traverse the issue of materiality as I am not persuaded that the Authority fell into any error, jurisdictional or otherwise. In that regard, I agree with the Minister’s submissions.
The applicants now allege, in summary, that the Authority erred by:
(a)making a finding of fact that was legally unreasonable, in the sense that there was no evidence and intelligible justification for the finding; and
(b)failing to give proper consideration, in the sense of active intellectual engagement with the applicants' case.
The applicants claim that the Authority referenced, at [39],[28] the US Country Report which indicated that in practice there was discrimination against persons with mental disabilities in the provision of state services, including public transportation.
[28] CB 433
The Authority found that the US Country Report did not expressly refer to discrimination in access to mental health services, but, in the applicants' view, erroneously found that the country information before it did not indicate such discrimination. The applicants note that the US Country Report refers to disability discrimination in access to state services, such as public transportation, and interprets this to mean that although it does not expressly refer to disability discrimination in access to mental health services, the US Country Report implicitly recognises disability discrimination also occurs in relation to the access of medical services (as they are state services). The applicants claim the Authority was therefore wrong to find the country information did not indicate such discrimination exists.
At [38],[29] the Authority referenced the US Country Report, noting that although the law forbids discrimination against a person with a disability, in practice, discrimination occurs "in employment, education, and provision of state services including public transportation". This was not the only report relied on by the Authority. The Authority also referenced a Department of Foreign Affairs and Trade Report in which it is noted that "mental health services are scarce and there is a general lack of institutional capacity to respond to mental health care needs". The Authority goes on at [39] to state that mental health services are scarce and in high demand in Sri Lanka, but that country information does not indicate there is discrimination in relation to access to medical services, including those for mental health.
[29] CB 433
The Authority's conclusion was based on all of the country information before it, none of which refers to discrimination against people with disabilities, in accessing medical treatment, including mental health services. The choice of country information and weight afforded to it is a matter for the Authority alone.[30]
[30] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]-[13]
The adult applicants claim to suffer from depression. That is hardly surprising, given their adverse experiences in the civil war, their flight to India, the death of two children, their passage to Australia and a decade of uncertainty about their future. They have been receiving treatment in the form of counselling but I have no evidence before me of any other treatment they may have been receiving.
It is not obvious to me that depression is a mental illness or mental disability and, to that extent, I am uncertain whether the Authority needed to engage with the question of discrimination against those with disabilities or mental illnesses at all. Assuming it did, then the country information concerning discrimination must be viewed in context. In order to be discriminated against, at least directly, the discriminator needs to be aware of the illness or disability. It must be manifest in some way. The Authority had no evidence before it concerning how the depression suffered by the two adult applicants manifested itself in their behaviour or appearance. The Authority was thus dealing with the matter at a high level of abstraction.
The Authority properly relied upon the US Country Report[31] which, as noted above, was put into evidence before me. Under the heading, “Persons with Disabilities”, the Report states as follows:
The law forbids discrimination against any person with physical, sensory, intellectual, or mental disabilities in employment, education, air travel, other public transportation, and access to health care. In practice, however, discrimination occurred in employment, education, and provision of state services, including public transportation. Authorities generally permitted children with disabilities to attend mainstream schools, but due to societal stigma against persons with disabilities, many parents of children with disabilities chose to keep their children out of school. There were regulations on accessibility, but accommodation for access to buildings and public transportation for person with disabilities was rare. The government supported participation by person with disabilities in civic affairs.
Persons with disabilities faced difficulties due to negative attitudes and societal discrimination. In some rural areas, the belief of many residents that physical and mental disabilities were contagious led to some long-term isolation of persons with disabilities, some of whom rarely or never left their homes.
[31] Exhibit R1
In my view, the Authority neither misrepresented or misunderstood or misapplied the US Country Report. Further, on the material before it, the Authority was entitled to conclude that the applicants would be able to access medical services, including mental health services (albeit probably of a lesser standard than those available in Australia).
Further, the Authority was entitled to find that it was not satisfied that any harm the applicants might experience as a result of their mental health and accessing treatment in Sri Lanka would constitute serious harm, or that the applicants had a well-founded fear of persecution as a result of their mental health.
CONCLUSION
The applicants have failed to establish that the decision of the Authority is affected by any jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 24 June 2021
SCHEDULE OF PARTIES
SYG 2804 of 2019 Applicants
Fourth Applicant:
EGN19
2
16
0