EHF18 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1199
•13 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EHF18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1199
File number: MLG 2495 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 13 November 2024 Catchwords: MIGRATION – application for an extension of time to seek judicial review of a decision of the Administrative Appeals Tribunal – extensive delay only partially explained – no specific prejudice to respondent – merits of proposed application not sufficiently strong to justify extensive delay – application for an extension of time dismissed. Legislation: Migration Act 1958 (Cth) ss 36, 477 Cases cited: BBU15 v Minister for Home Affairs [2019] FCA 1324
Bernard v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2187
CSV15 v Minister for Immigration and Border Protection [2018] FCA 699
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391
MZXQU v Minister for Immigration [2008] FMCA 15
MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17
SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442; [2013] FCA 1284
Tran v Minister for Immigration and Border Protection [2014] FCA 533
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 73 Date of hearing: 14 October 2024 Place: Perth (via Microsoft Teams) Counsel for the Applicant: Mr A Yuile Solicitor for the Applicant: Hanna Advisory Counsel for the First Respondent: Mr J Barrington Second Respondent: Submitting appearance by the second respondent, save as to costs Solicitor for the Respondents: Clayton Utz ORDERS
MLG 2495 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EHF18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
13 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The application for an extension of time is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicant is a citizen of Nepal who applied for a protection visa in Australia. A delegate of the Minister refused to grant the applicant a protection visa and the Administrative Appeals Tribunal (Tribunal) affirmed the delegate’s decision on 3 August 2015. By application filed on 20 August 2018 pursuant to s 477(2) of the Migration Act 1958 (Cth)[1] (Migration Act), the applicant seeks an extension of time to seek judicial review of the Tribunal decision.
[1] Significant amendments have been made to the Migration Act following the commencement of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). Unless otherwise stated, all references to the Migration Act in this judgment are references to the provisions of the Migration Act in effect at the relevant time of the events described in this judgment. All references to the Administrative Appeals Tribunal (and the Refugee Review Tribunal prior to July 2015: see Tribunals Amalgamation Act 2015 (Cth)) are to the Tribunal as it existed at the time the applicant’s matter was before it for review.
For the reasons explained below, I have found that it is not necessary in the interests of the administration of justice to grant the applicant an extension of time to file his application for judicial review. The application for an extension of time is therefore dismissed.
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
The applicant arrived in Australia in May 2013 on a business visa.
On 22 August 2013 the applicant applied for a protection visa. The applicant’s claims for protection were set out in his Form 866C and in a statement that accompanied his protection visa application.
On 13 June 2014 a delegate of the Minister refused to grant the applicant a protection visa.
On 27 June 2014 the applicant applied to the Refugee Review Tribunal for merits review of the delegate’s decision.
The applicant attended a hearing before the Refugee Review Tribunal on 29 June 2015 to give evidence and present arguments in relation to the issues arising in the review.
On 3 August 2015 the Tribunal affirmed the delegate’s decision. The Tribunal was not satisfied that the applicant met the refugee criterion in s 36(2)(a) of the Migration Act or the complementary protection criterion in s 36(2)(aa) of the Migration Act.
APPLICATION BEFORE THE COURT
Pursuant to an amended application filed on 17 September 2024, the applicant raises the following grounds in relation to his application for an extension of time:
1.The applicant did not become aware of the Tribunal’s decision until March 2017, because he was not informed of the decision by his former representatives.
2. The applicant was suffering from physical and mental health issues that hampered his capacity to get legal assistance and to lodge an application.
3. The applicant lodged an application for review without legal representation about 18 months after he became aware of the Tribunal decision. He later acquired his present legal representation.
4. There is no prejudice to the Minister in the grant of an extension.
5. The applicant’s substantive grounds of review have merit. It would be in the interests of the administration of justice to allow them to be heard.
The applicant’s amended application contains two grounds of application asserting that the Tribunal decision is affected by jurisdictional error. Those grounds are:
1.The Administrative Appeals Tribunal (Tribunal) committed jurisdictional error in that it failed to consider the applicant’s claim to fear harm on the basis of his mental health.
Particulars
a.The Tribunal accepted that the applicant suffered from diagnosed mental health conditions.
b.The applicant made a claim to fear harm if he were to be returned, based on his deteriorating mental health. The applicant’s mental health concerns originally had some connection with his claims to fear harm from Maoists, but his claim was not so limited and represented his developed, deteriorating state.
c.The Tribunal considered the mental health claims only insofar as they were connected to fears of harm from Maoists, and not independently. In so doing, the Tribunal failed to consider a claim and committed error.
2.The Tribunal committed jurisdictional error in that it failed to consider the applicant’s claim to fear harm on the basis of his religion.
Particulars
a.The applicant made a claim in writing to fear harm based on his Hindu religion.
b.In the hearing, the applicant discussed the connection between his political party and his religions fears, but affirmed and did not retract or alter his independent claim to fear harm as a Hindu.
c.The Tribunal treated the religious claim as “one and the same” as the political claims, and rejected it on the same basis that it rejected the political claim.
d.This constituted a failure to consider the claim put of fear based on religion, amounting to jurisdictional error.
The evidence before the Court comprises:
(a)an affidavit of the applicant filed on 20 August 2018, annexing a copy of the Tribunal decision and explaining why the applicant considers it necessary in the interests of the administration of justice for the extension of time to be granted;
(b)an affidavit of the applicant filed on 17 September 2024, addressing why the applicant considers it necessary in the interests of the administrative of justice to grant the extension of time and annexing over 200 pages of medical records;
(c)an affidavit of Larisa-Georgiana Stoian filed on behalf of the applicant on 17 September 2024, annexing a transcript of the hearing conducted by the Tribunal; and
(d)a court book filed on behalf of the Minister on 26 September 2024.
CONSIDERATION OF THE EXTENSION OF TIME APPLICATION
Relevant considerations
Section 477(2) of the Migration Act allows the Court to extend the time within which the applicant may file an application for judicial review of the Tribunal decision if the applicant makes an application for an extension of time in writing and if the Court considers that it is necessary in the interests of the administration of justice to grant the extension of time.
The factors that the Court may take into consideration in deciding whether it is necessary in the interests of the administration of justice to grant the extension of time are not prescribed, but the Court will usually take into account considerations such as the length of the delay, whether there is an adequate explanation for the delay, any prejudice to the Minister and the merits of the proposed substantive application: see, for example, SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442; [2013] FCA 1284 at [46]-[48].
In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28 (Katoa) the majority of the High Court explained at [12] that:
(a)the focus in considering whether to grant the extension of time is not on the interests of the applicant, but on the broader interests of the administration of justice; and
(b)the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.
Length of the delay
The Tribunal made its decision on 3 August 2015. Pursuant to s 477(1) of the Migration Act, the application for judicial review, to be made within time, needed to be made within 35 days of the date of the Tribunal decision, namely, by 7 September 2015. The applicant filed his application to this Court on 20 August 2018, resulting in a delay of almost three years.
The Minister described the delay as ‘significant’ and the applicant acknowledged that the delay was ‘very long’.
The Minister referred in his submissions to several cases that emphasise that the lengthier the delay, the more persuasive the explanation for the delay and the stronger the merits of the case need to be. These include:
(a)Tran v Minister for Immigration and Border Protection [2014] FCA 533 in which Wigney J, in the context of considering a delay of almost 18 months, said at [38] that ‘[i]n general the longer the delay, the more persuasive the explanation needs to be’;
(b)BBU15 v Minister for Home Affairs [2019] FCA 1324 in which Jackson J, in the context of considering a delay of 10 months, said at [7] that ‘[i]t would require something very persuasive indeed to justify a grant of leave after, for example, a year’;
(c)Bernard v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2187 in which, in considering a delay of two and a half years, McKerracher J said at [27] it would require ‘an exceptional case before an extension of time would be granted’ and at [28] that the delay in the case was of ‘such an extreme duration that the merits of the application for an extension of time would have to be particularly obvious to overcome the delay’.
I consider that the delay of over three years in the present case is extreme. It weighs heavily against the grant of an extension of time unless the applicant has a strong explanation for the delay and there are strong merits of the proposed application for judicial review.
Explanation for the delay
The applicant’s explanation for the delay is set out in his affidavits filed on 20 August 2018 (first affidavit) and 17 September 2024 (second affidavit). The applicant was not cross-examined at the hearing. The applicant in his first affidavit attributed the delay to his ‘medical history’, without elaborating in any meaningful way.
In his second affidavit, the applicant provided two main reasons for the delay.
The first reason related to the applicant not being aware of the decision when it was delivered. The applicant deposed that he did not find out about the Tribunal decision until sometime in 2017, in circumstances where the decision was sent to someone at Sabelburg Morcos Lawyers (the firm who represented him before the Tribunal) who he met only once, Patrick Sabelberg, and not Latifa Al-haouli, who was the person within that firm who was usually working his case. The applicant deposed:
I contacted Latifa to ask her to follow up on my case. I also had a problem with getting a Medicare card, Latifa contacted the Tribunal to ask for a Medicare confirmation letter for me and was told that the Tribunal decision had been finalised. I understand that this was the first time Latifa knew about the decision. This was in about 2017.
I accept that the applicant was not aware of the Tribunal decision until some time in 2017. The applicant was not cross-examined on this point and I accept his unchallenged evidence. The evidence is also consistent with evidence in the Court book which shows that:
(a)the applicant provided a psychological report to his representative on 2 November 2016 and requested that it be submitted to the Tribunal;
(b)the applicant’s representative provided the report to the Tribunal on 20 March 2017 and requested that a Medicare letter be issued in relation to the applicant;
(c)the Tribunal sent an email to the applicant’s representative on 21 March 2017 advising that it was unable to issue a Medicare letter as the case was finalised in 2015; and
(d)on 7 August 2017 the applicant’s representative requested a copy of the Tribunal’s refusal decision, which the Tribunal provided on the same day.
The applicant’s action of asking that a psychological report be provided to the Tribunal is consistent with his evidence that he did not know about the decision at that time. The applicant’s evidence is vague as to when in 2017 he became aware of the Tribunal decision. Given that the applicant in his evidence referred to finding out about the Tribunal decision when he asked Ms Al-haouli to seek a Medicare letter, and the documentary evidence in the court book shows that Ms Al-haouli contacted the Tribunal in March 2017 about that issue and was advised at that time that the matter had been finalised, I find on the balance of probabilities that the applicant became aware of the Tribunal decision in or around late March 2017. This is consistent with the ground in the applicant’s application for an extension of time, which refers to him becoming aware of the Tribunal decision in March 2017.
I am satisfied that, in circumstances where the applicant was not aware of the Tribunal decision until late March 2017, he has an adequate explanation for not filing an application for judicial review up until that time.
The application to this Court was not filed until 20 August 2018, approximately 17 months after I have found that the applicant became aware of the Tribunal decision. Even if the applicant did not receive a copy of the Tribunal decision until August 2017 when an additional copy was provided to his representative (and his evidence is too vague for me to make any finding on this), the application to this Court was not filed until a year later.
The applicant’s evidence in relation to the other reasons for the delay is relevant to assessing whether there is an adequate explanation for the delay between the applicant learning of the Tribunal decision and making the application to this Court. The applicant’s explanation is that upon finding out about the ‘refusal of [his] protection visa’ (by which I will give the applicant the benefit of the doubt and infer that he is referring to the Tribunal decision affirming the refusal of his protection visa application), he was ‘deeply shocked and distressed’, he did not know what steps to take and he was ‘also going through major health problems which caused a further delay in submitting [his] application for review’. When he later became aware that Ms Al-haouli left Sabelberg Morcos he decided to find a different lawyer to help him (although there is no evidence of what steps, if any, he took to make any attempt to find another lawyer) before making the application without the assistance of a lawyer. The applicant subsequently attributed the delay to his ‘ongoing mental health issues’ and attached a bundle of medical documents to his affidavit as ‘evidence of [his] conditions over the years’.
I note in passing that the bundle of medical records attached to the applicant’s affidavit is not presented in a way that is easy to follow. The bundle is an unpaginated bundle of over 200 pages of medical records ranging in date from December 2015 to April 2024, including records from the applicant’s general practitioner, prescriptions, counselling records, letters from doctors, appointments scheduled, lists of medication and copies of various prescriptions. The records refer to the applicant having received treatment in Australia since his arrival in 2013. It is unclear whether any forensic consideration has been given when preparing the affidavit to what records are likely to assist the applicant in explaining the delay. Many of the documents in the bundle are dated after the application to this Court was filed and do not address the reasons for the delay in filing the application.
I have reviewed all the medical records and, at the hearing before the Court, I invited Counsel for the applicant to draw to the Court’s attention any medical records that the applicant particularly relied on. Counsel for the applicant referred to two documents in the bundle. The first was a document referred to as a complete record as at 2 April 2024 from the ASRC Health Centre. In an entry for 6 July 2017, it is recorded that the applicant has a ‘history of mental health issues and suicidal thoughts and is on a number of psych meds’ and that he was working full-time but struggling to make ends meet with GP and medication costs and living costs. Counsel for the applicant indicated that this was recorded a short time after the applicant received the Tribunal decision and it includes the history, including psychotic medications and recording ongoing mental health issues including suicidal thoughts. The second document referred to by Counsel for the applicant was a letter from Ingrid Forster, clinical social worker, dated 25 October 2016 which referred to psychotherapy and counselling having been provided for to the applicant for assistance with diagnosis and symptoms of Post Traumatic Stress Disorder (PTSD). Counsel for the applicant submitted that the main point was that the applicant, from before the time he received his decision and then immediately after he received it, continued to struggle with a diagnosed anxiety, depression and PTSD and was receiving ongoing psychological treatment as well as medication to assist him with those conditions. Counsel for the applicant did not put the point any higher than a general proposition that these were matters affecting the applicant’s capacity to function at a level which might otherwise be expected.
I accept that the applicant had physical and mental health conditions for which he received treatment in Australia since 2013 or 2014 and during the period of the delay. I also accept that the mental health conditions included diagnoses of anxiety, depression and PTSD. However, I am unable to find from the evidence before the Court that those conditions prevented the applicant from filing the application to this Court or otherwise explained his failure to do so to an extent that adequately explains a further delay of over one year. As submitted by Counsel for the Minister, there is no evidence that the applicant lacked capacity to deal with the matter.
At the hearing before the Court, Counsel for the applicant referred to MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 (MZZIV), where Mortimer J (as her Honour then was) said at [5]:
The discretion to extend time is reposed in the Court to ensure that the interests of the administration of justice are served, and parties whose substantive appeals should be heard and determined in accordance with law are able to secure that outcome. Identifying which parties fall into that category requires analysis of the factual circumstances in each case. Sometimes, matters such as lack of legal representation, little or no proficiency in English, and little or no understanding of the Australian legal system may combine to suggest a delay is explicable. Other factors such as the length of the delay, the steps taken by an applicant during the running of the time period, and the time at which the applicant received a copy of the Court’s orders and reasons may be significant. The party’s personal circumstances may need to be considered. The importance of the subject matter of the proceeding to the party requesting an extension of time may also be relevant. The more there is at stake, the more confident the Court may need to be before it refuses an extension of time, especially if the delay is not significant. The manner in which a discretion such as this should be exercised cannot be answered by general statements about certain attributes or the circumstances of a party being insufficient.
Counsel for the applicant submitted that many of the same factors referred to in MZZIV are relevant in the present matter. Counsel for the Minister submitted that there is no evidence that the applicant did not understand the decision, could not read English or did not have access to a lawyer (noting that he was apparently given a copy of the decision by a law firm). Counsel for the Minister submitted that, in any event, lack of legal advice is not of itself an adequate explanation for a delay.
On the evidence before the Court, I am not satisfied that the applicant has provided an adequate explanation for the delay between becoming aware of the Tribunal decision in March 2017 and making his application to this Court in August 2018. As set out above, the medical evidence shows that the applicant had medical conditions, but not that they impacted his ability to file an application to this Court such that a delay of 17 months from when the applicant became aware of the decision to when he filed his application is adequately explained. While the applicant gave evidence that he became aware that Ms Al-haouli left Sabelberg Morcos Lawyers, he does not indicate when that was, and I note that the email from Ms Al-haouli to the Tribunal in August 2017 requesting a copy of the Tribunal decision contains a logo for Sabelberg Morcos Lawyers in the signature block, indicating that Ms Al-haouli still worked for that firm at the time the applicant was sent a further copy of the Tribunal decision. There is no evidence that the applicant did not have access to legal advice at the time he became aware of the decision and no evidence of any steps he took to later find a legal representative, or as to why he did not take steps to find another legal representative in a timely way after that. As submitted by the Minister, there is no evidence before the Court to indicate that the applicant did not understand the effect of the Tribunal decision, or any evidence to suggest that any language barriers may have contributed to the delay.
That only part of the lengthy delay is subject to an adequate explanation, and that there is a delay of well over a year that is not satisfactorily explained, weighs against the grant of an extension of time.
Prejudice to the Minister
The applicant submitted that the Minister suffers no prejudice if the extension of time is granted.
The Minister accepted that he will not suffer specific prejudice, but is prejudiced in a general sense because there is a significant public interest in public law matters being resolved in a timely manner and the Minister has a legitimate interest in the timely disposal of applications for visas, which might be prejudiced by the Court allowing applications to be commenced well out of time. The Minister further submitted that the absence of prejudice to the Minister is not, of itself, a sufficient reason to grant the extension of time.
The Minister also acknowledged the potential gravity of the underlying issues, including by reference to the applicant’s mental health in this case.
While I acknowledge that there is a public interest in the timely resolution of administrative decision-making, I find that the Minister will not suffer any specific prejudice as a result of the delay. I accept that the absence of specific prejudice does not, of itself, make it necessary in the interests of the administration of justice to grant the extension of time.
Merits of the proposed substantive application
In considering whether to grant an extension of time, the Court often considers the merits of the proposed application for judicial review at a reasonably impressionistic level: MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 at [62]-[63]. The Court is not, however, required to confine its consideration of the merits to an assessment at a reasonably impressionistic level in every case: Katoa at [17]-[19], [49]. As the majority said in Katoa at [18] (footnotes omitted):
However, and as the plaintiff accepted, there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”. In such a case, the proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is “reasonably arguable” or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.
In the present case, I have had regard to the merits of the proposed judicial review application in the level of detail that I consider necessary to determine whether it is necessary in the interests of the administration of justice to grant the extension of time. Both grounds of the proposed judicial review application allege that a claim was raised before the Tribunal and the Tribunal failed to address that claim. Taking into account these grounds and the way the case was articulated before me, the matters that I need to consider to form a view of the merits are substantially the same whether I consider the merits at a reasonably impressionistic level or in greater detail. In both cases, the Court is required to identify, based on the evidence before it, the claims raised by the applicant and whether or not those claims were addressed by the Tribunal in its reasons.
Ground 1
By ground 1 the applicant asserts that the Tribunal failed to consider his claim to fear harm on the basis of his mental health.
The applicant’s claims as articulated by him
The applicant made no claim on account of his mental health in his protection visa application or otherwise before the delegate.
In a pre-hearing submission to the Tribunal prepared by the applicant’s representative and provided to the Tribunal on 26 June 2015, the representative summarised the applicant’s claims as comprising:
(a)a fear of persecution on Convention grounds of his imputed political opinion and familial background in political parties representing the Rastriya Prajatantra Party (RPP) and his membership of a particular social group, namely, landowners or aristocrats who typically hold affiliation with the RPP; and
(b)complementary protection claims on the basis that there were substantial grounds for believing that, if returned to Nepal, he will be subjected to serious harm, torture, inhumane treatment, degrading treatment or brutal torture for his personal involvement with the RPP and his continued dedication to ensure equal opportunities, stability and welfare for the people of Nepal despite an aggressive stance from the opposing Maoist Party that maintains control of Nepal.
Under the heading ‘The Applicant’s Mental Health’, the submission read (emphasis added):
53.We refer to the claims that have been submitted by the Applicant with regards to the threats and abuse that he has suffered from. We also like to point out the shock that such abuse may induce in a man that was of the Applicant’s stature, particularly due to the sudden upturn in his social, religious and political situation after the Maoist party came into power.
54.As a result of these instances the Applicant now suffers deeply from mental distress and has visible and apparent issues, which are clear not only to us but also to counsellors who have assessed him. These mental issues range from extreme paranoia to anxiety attacks which often burden the Applicant and has him lingering in a state of fear and uncertainty for long periods. Such attacks, when untreated or left unalleviated, can be detrimental on his long term mental and physical condition and would likely render his life short and intolerable.
55.We submit that the Case Officer had not addressed the leniency in respect of the psychological effect of the past harm upon the Applicants. We submit that if the Officer had indeed given proper weight to the psychological effect of the Applicants’ past on the testimony provided then, it would have had an influential effect on the Applicants’ claims. We submit that the Applicants should not always be expected to provide fully comprehensive, coherent and consistent testimonies as a result of the abuse that they have suffered as a refugee and the trauma which they have endured as a result of their life circumstances and experiences.
56.As was expressed by the academic, James Hathaway, special caution should be taken in discounting the testimonies of an Applicants’ whose past experiences foster a culture of mistrust of the authorities and whose circumstances affect the mental capacity and health of the Applicants. Beyond the fact that such mistrust in itself leads to a factor of the claim for the purposes of state protection, it is submitted that such a conditioned fear leads the Applicants to be vague at times with the intention of protecting themselves from mislead damnation of the authoritative figure. We submit accordingly that such an intention is in itself indicative of the real harm that awaits his return to Nepal.
At the Tribunal hearing, the following exchange took place between the Tribunal and the applicant at the end of the hearing:
[TRIBUNAL]: So just one other issue. So I’ve read the report that you have provided in terms of your anxiety and depression. So I have noted that diagnosis and I will certainly take that into account. But in terms of - I need to consider that in terms of the relevant definitions of serious and significant harm. Under the refugees convention I need to look at harm that occurs through - for a convention reason. So I need to consider the basis on which you claim to suffer anxiety and depression. And for the purpose of the complimentary protection criterion I wouldn’t be inclined to consider that anxiety and depression fall within what constitutes significant harm for the purpose of the Act. In that respect, I note that the definitions of significant harm are cruel or inhuman treatment or punishment, degrading treatment or punishment require an intention by someone to cause that harm. So I need to consider that in the context of all the evidence that you have provided.
[APPLICANT]: Can I present some last words?
[TRIBUNAL]: Yes.
[APPLICANT]: Sir, I would like to say that since I’ve been in Australia I have been victimised. I left my country because of political reasons, in other words due to a whole heap of problems I’m here in Australia, as well as I’m mentally deteriorated. I’m mentally deteriorated in such way that I am suffering from insomnia and I have a very less appetite and I’m counselling with my doctor and this is all because of the effect of the conflict that I’ve gone through in my country. So I have presented all my claims in front of you and also I’m struggling with my health at the moment. What I would like to tell you, member, is I’m consulting with my doctor at the moment and I’m really struggling with my health, and because of that I have been referred to psychology and - psychologist as well as my - there is a big difference in my weight and every two to four weeks I am attending the doctor. As well as I am trying to do my finger operation in the Royal Melbourne Hospital and I have got the date of that. And also my GP has suggested that I have got eye problem. There is a spot in my eye which I check in three months ago and my GP told me that I have to go from operation for that and I’m waiting for that. And each two to four weeks I have to go to doctor and I’m taking medication for my problems. I’m on mediation, member. I’m taking this medication for a long time and the doctor has asked me to take this medicine and he told me that I have to take this medication for nine months for tuberculosis. My medications are in front of me and I’m showing that to you. I can’t sleep at the moment. I’m suffering from mental problems and I’m really mentally deteriorated. And because of that I’m not able to go back to Nepal. I am really a big victim and there is no other alternatives in my life rather than surrender in front of you. And I’m doing that raising my both hands.
The Tribunal’s consideration of the applicant’s claims
The Tribunal summarised the claim or submission at [18] of its reasons in the following way:
It is submitted that the applicant suffers from mental distress as a result of his loss of stature in Nepal. It indicates that the applicant suffers from extreme paranoia and anxiety attacks. It is submitted that the case officer had not considered the psychological effect of past harm upon the applicant which could explain lack of coherent and consistent testimony. It is submitted that the applicant’s mental health would deteriorate if he was to return to Nepal.
The Tribunal said at [64]-[65] of its reasons:
64.The applicant has claimed that he has health issues, most particularly anxiety and depression. Whilst the Tribunal accepts that the applicant and has been diagnosed with these conditions, with the indication that such conditions are consistent with the applicant’s claims of oppression, the medical reports indicate that the claims are aggravated by the long wait for settlement of his claim for protection. The Tribunal also notes the indication in the medical report that the applicant is awaiting surgery to correct ongoing symptoms in relation to his hand and that he has a scar on his forehead and a painful ankle.
65.The fact that the medical opinion provided by the applicant indicates that his symptoms are consistent with his claims does not establish definitively that they are the cause of the symptoms. The Tribunal refers to its findings at to the lack of the applicant’s credibility on key issues. The Tribunal is not satisfied that the applicant’s medical conditions are for reasons of past harm or fear of harm from Maoists. The Tribunal is not satisfied that any ongoing mental health issues suffered by the applicant on return to Nepal would be due to fear from Maoists or as a result of past harm by them. The Tribunal is not satisfied that there is a real chance of the applicant facing serious harm for a Convention reason due to his health issues in the reasonably foreseeable future should he return to Nepal.
In assessing whether the applicant met the complementary protection criterion, the Tribunal said at [69]:
While the Tribunal accepts that returning to Nepal may aggravate the applicant’s anxiety and depression, the Tribunal does not consider that this will be because the applicant fears harm from Maoists or due to past harm from them. The Tribunal does not consider that aggravation to the applicant’s health conditions falls within the any of the definitions of significant harm for the purposes of the Act. The Tribunal notes that cruel or human treatment of punishment and degrading treatment or punishment (both being defined elements of significant harm in the Act) require an element of an intention to cause harm. The Tribunal does not consider that any aggravation of the applicant’s health conditions would have the necessary intention of any person or body to cause harm to the applicant.
The parties’ submissions
The applicant submitted that the Tribunal limited itself to a consideration of his mental health in conjunction with his past harm or fear of harm from Maoists, when the claim was not put in that way. While the applicant acknowledged that the initial source of the applicant’s mental health concerns appeared to be the fears that also animated his protection visa application, the claim put to the Tribunal was not expressed in this limited way. Rather, the applicant’s submission to the Tribunal referred to mental health issues going untreated or unchecked, and leading to an impact on the applicant’s life that would render it short and intolerable. The applicant’s evidence at the hearing simply stated that he was not able to return to Nepal because of his mental health problems and mental deterioration. The applicant submitted that his claim was not limited by reference to mental health issues driven by fear of harm, but a broader claim about the consequences of returning to Nepal with these accepted mental health conditions, which had developed over time. The applicant further submitted that the Tribunal’s acceptance of the applicant’s mental health conditions but rejection that he had a well-founded fear of harm from Maoists logically required the Tribunal to consider the applicant’s claims based on returning to Nepal with the accepted mental health conditions and fear of return because of those conditions, without a connection to any fear of Maoists.
The Minister submitted that the Tribunal considered the claim properly under both ss 36(2)(a) and 36(2)(aa) of the Migration Act. The Minister submitted that the Tribunal’s identification of the claim at [18] is precisely the claim that the applicant submits was not considered in this ground and the fact that the Tribunal identified the claims in these terms is a strong reason not to conclude that the Tribunal misunderstood or failed to consider the claim. The Minister submitted that the Tribunal’s reasoning at [65] evidences consideration of the applicant’s claim, and that the reasoning was, effectively, that the mental health claim was not linked to a Convention reason. The Minister submitted that it was not erroneous or improper, in the context of the refugee criterion, for the Tribunal to focus upon whether the claimed harm arising from deterioration of the applicant’s mental health upon return was because of his fear of Maoists. The Minister submitted that it was indeed necessary for the Tribunal to consider the claim in this way because, absent a Convention reason for the claimed harm, that claim could not be made out.
In relation to the complementary protection criterion, the Minister submitted that the Tribunal focused on the absence of intention and that the reasoning was that, although the applicant might experience a worsening of his mental health, this would not be because any person intended that consequence. The Minister submitted that that was responsive to the applicant’s claim and was sufficient engagement with the applicant’s broad claim to find that it lacked one of the necessary elements to make out the claim.
At the hearing, both Counsel made further submissions in relation to the extent to which the Tribunal was required to identify a Convention ground when considering the applicant’s claim under the refugee criterion. Counsel for the applicant submitted that the Tribunal invented a Convention reason, which was not presented by the applicant, and then found that it was not satisfied that the claimed harm was for that reason. Counsel for the applicant submitted that the Tribunal needed to consider the medical conditions on their own and to consider whether, as a person who would be returning to Nepal with those medical conditions, the applicant would suffer from harm as defined in the Convention. Counsel for the applicant further submitted if the Tribunal needed to put the claim into the framework of the Convention, it ought to have treated the claim as an assertion that the applicant would face harm as a member of a particular social group, namely, persons with mental illness. In response, Counsel for the Minister submitted that even if the claim was considered as arising from the applicant’s membership of a particular social group, it could not have met the requirements of s 36(2)(a) of the Migration Act, because persecution requires acts or omissions from others: see CSV15 v Minister for Immigration and Border Protection [2018] FCA 699 at [30]. Further, Counsel for the Minister submitted that the applicant did not at any stage suggest that he was a member of a particular social group, or put to the Tribunal any evidence to suggest that there was a recognisable social group in Nepal of persons with mental illnesses. In his reply submissions, Counsel for the applicant submitted that it could be the case that people within a country are persecuted because of their mental illness. He accepted that such a claim was not expressly put but submitted that it arose sufficiently on the material for the Tribunal to have to consider it.
The Court’s assessment of the proposed ground
In my view, there is insufficient merit in the proposed ground to justify the grant of the extension of time in the present case.
Having regard to the way in which the claims based on the applicant’s mental health were presented by the applicant to the Tribunal, the Tribunal sufficiently addressed those claims in its reasons. The applicant’s mental health was raised in the written submission in the context of being caused by the events underpinning his claims for protection, as something that should be taken into account in assessing the applicant’s evidence with a degree of leniency and in the context of the need for treatment of these conditions. The way that the applicant’s mental health was raised in his oral submissions was again linked to the events that underpinned his claims for protection and in the context of the need for treatment. The applicant’s comment at the hearing that he is suffering from mental problems and because of that he is unable to go back to Nepal was made in the context of the treatment that the applicant is receiving for his health problems in Australia. The applicant did not anywhere expressly claim that he would be persecuted on account of his mental health conditions or that he would face treatment that amounts to significant harm as a result of his mental health conditions. He made no claim of being a member of a particular social group.
In circumstances where the applicant referred to his mental health in the context of the claimed treatment he had received at the hands of Maoists, it was not inappropriate for the Tribunal to consider the applicant’s claims based on his mental health in the context of his claim to fear harm from Maoists in assessing whether the applicant met the refugee criterion. The Tribunal was correct to identify that the harm claimed by the applicant needed to be for a Convention reason, that is, as a result of his race, religion, nationality, membership of a particular social group or political opinion. Given that the applicant made no claim to be a member of a particular social group, and did claim that his mental health injuries were caused by harm he faced as a result of his political opinion, it was logical for the Tribunal to treat the Convention nexus of the applicant’s mental health claim as relating to his political opinion.
The Tribunal did not need to consider the claim as amounting to a claim to be a member of a particular social group where that was not expressly articulated by the applicant and where it did not clearly emerge on the materials before the Tribunal. The applicant has not identified any material before the Tribunal to suggest that there is any recognisable social group in Nepal of people with mental health conditions, or that such a group would face any treatment that may amount to persecution.
Further, and in any event, the Tribunal’s conclusion that it was not satisfied that there is a real chance of the applicant facing serious harm for a Convention reason due to his health issues in the reasonably foreseeable future should he return to Nepal is not expressed in a way that is limited to a Convention reason based on the applicant’s political opinion.
There was no general obligation on the Tribunal to consider the applicant’s mental health conditions in any other context to that which it did in addressing his claims to be a refugee. As the Minister submitted, to satisfy the Convention definition of a refugee, the applicant would need to establish that he would face treatment amounting to persecution by others. The applicant did not claim that he would face any specific or general treatment from others in relation to his mental health that might amount to persecution. The possibility of the applicant’s mental health deteriorating if he returned to Nepal, absent any act or omission from another person, could not amount to persecution for the purposes of the Convention.
In relation to complementary protection, the Tribunal made a clear finding that the possible aggravation to the applicant’s mental health conditions did not fall within any of the definitions of significant harm, because there was not the requisite intention to cause harm. I accept the Minister’s submission that the Tribunal’s consideration of the claim under the complementary protection criterion was responsive to the claim as articulated and amounted to sufficient engagement with the claim.
Ground 1, while not wholly unarguable, is not sufficiently strong to make it necessary in the interests of the administration of justice to grant the extension of time.
Ground 2
By ground 2 the applicant asserts that the Tribunal failed to consider the applicant’s claim to fear harm on the basis of his religion.
The applicant’s claims as articulated by him
The submission prepared by the applicant’s agent and provided to the Tribunal reads in part:
He is persecuted for his religion, being a devoted Hindu man whose principles are to live a life of peace, because the now prominent figures in the country believe that religion must be banished as it detracts their attention from the state which deserves their full worship.
The Tribunal raised this with the applicant at the hearing and the following exchange took place:
[TRIBUNAL]: All right. Thank you. So your adviser in a recent submission has claimed that you fear persecution on the basis of your Hinduism. So that’s not a claim you have made anywhere before, so can you explain that?
[APPLICANT]: Actually, I want to say that the party’s philosophy and my thinking are all clear, and what I would like to say is monarchy should be reinstated because it has got the history of 240 years. As well as since my country is followed of - in my count1y 80 per cent people are population of the country are follow Hinduism, so that’s why Nepal should be Hindu country and I have mentioned this in my statement as well.
[TRIBUNAL]: Yes, but your adviser is saying that you fear harm because you are Hindu. Now, are you making claim to that effect? You are welcome to talk to your adviser if you want.
[APPLICANT]: Yes, I would like to clear about this. 80 per cent of the population follow Hindu right now and then right now the country don’t have - is longer a Hindu country and there are people - there are some anti-Hindu group who can harm us and affect us, and our party’s main demand is this. That’s why.
[TRIBUNAL]: So have you ever suffered harm because you are a Hindu?
[APPLICANT]: Our party’s main philosophy is to make Nepal a Hindu country and that is our demand. But Maoist are against that. They don’t want the country, Nepal, a Hindi country and that is the conflict in our ideology and this will definitely hamper us as well as affect us.
The Tribunal’s consideration of the applicant’s claims
The Tribunal said at [61] of its reasons:
The Tribunal considers the applicant’s claims in relation to religion are one and the same as his claims based on political opinion. The Tribunal repeats its findings of a lack of a real chance of harm to the applicant based on past threats and harm from Maoists or on the basis of ongoing political opinion of support for royalist political parties. The Tribunal is not satisfied there is a real chance of serious harm to the applicant based on his Hindu religion as it is associated with his political opinion, or based on religion generally.
The parties’ submissions
The applicant submitted that it was tolerably clear from the exchange with the Tribunal that the applicant was making a claim specifically based on his religion. In advancing this submission, the applicant specifically referred to the statement to the Tribunal that ‘there are some anti-Hindu group who can harm us and affect us’. The applicant acknowledged that his mention of his own party tends to distract from the main claim, but submitted that his evidence should be read as explaining a different issue, being that religion is important to the royalist parties (the RPP and the Rastriya Prajatantra Party – Nepal) because of the threat posed to persons of Hindu faith from non-Hindus. The applicant submitted that, in any event, he made a claim based specifically on his Hindu religion in his written material, which was not expressly altered or detracted from at the hearing and could not be ignored.
The applicant submitted that the Tribunal’s treatment of his political and religious claims as one and the same means that the Tribunal did not consider the possibility of risk of harm to the applicant based on his religion at all. There was no independent consideration of whether a Hindu person in Nepal faces persecution because of their religion, which was a claim that also needed to be considered, notwithstanding that the applicant’s religion was connected to his political opinion. The applicant submitted that the finding at the end of [61] that the Tribunal was not satisfied of the risk of harm based on religion generally must be read with the balance of the paragraph, which shows that the Tribunal considered the political and religious claims to be one and the same, or wholly focused on the political dimension. The applicant submitted that the absence of any discussion of religion demonstrates that the claim was not considered. The applicant submitted that this also amounts to a failure to consider the religious claim as part of the complementary protection assessment, because the findings in relation to the complementary assessment depended entirely on the analysis in relation to the refugee criterion.
The Minister submitted that the applicant made no distinct claim to fear harm for reasons of his religion and that the ground is an attempt to recast the claims that were actually made by the applicant before the Tribunal. The Minister submitted that the applicant claimed to fear harm from his political support of the RPP, which had a political philosophy of transforming Nepal into a Hindu kingdom, keeping Nepal as one and reinstating the monarchy. Thus, there was a religious component to his political claims, but his claim was not a separate claim to fear harm upon the basis of religion. The Minister submitted that this can be seen in the applicant’s written submission to the Tribunal and noted that, in setting out the claims at the commencement of those submissions, the representative did not claim that the applicant feared harm as a result of his Hindu religion. On each occasion that the Tribunal asked the applicant about his fear of harm on the basis of his Hinduism at the hearing, the applicant responded by linking the claim with the political goals of the RPP. This falls a long way short of a substantial and clearly articulated claim based on religion.
The Minister submitted that, in any event, the Tribunal rejected the claim. It was sufficient for the Tribunal to find that the religion claim, as far as it went, was linked with the applicant’s political claims. Further, the Tribunal was not satisfied the applicant faced a real chance of serious harm based on his religion generally and, while that consideration may be brief, the effort that the Tribunal needs to expend to deal with the claim is responsive to the claim itself. The Minister referred to the High Court’s judgment in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 (Plaintiff M1) for the proposition that the degree of effort needed by the decision-maker will vary, amongst other things, according to the length, clarity and degree of relevance of the representations: see Plaintiff M1 at [25]. In the present case, the Minister submitted that if the applicant did make a claim, it was extremely brief, unsupported by any country information and the applicant gave no evidence about it except to assert that there are some anti-Hindu groups that can harm ‘us’. In that context, the Minister submitted that it was sufficient for the Tribunal to simply find that there was no real chance of harm based on religious beliefs.
In response to the Minister’s submissions, Counsel for the applicant submitted that the final line of [61] of the Tribunal’s reasons referring to there not being a real chance of harm based on religion generally, is a throwaway line that conceals a lack of proper consideration of the claim. The applicant referred to the decision of Riley FM (as her Honour then was) in MZXQU v Minister for Immigration [2008] FMCA 15 to suggest that a comment that there is not a well-founded fear of persecution cannot overcome a failure to properly consider a point.
The Court’s assessment of the proposed ground
As with proposed ground 1, it is appropriate to have regard to how the applicant’s claim was advanced in assessing whether the Tribunal has adequately addressed that claim.
The Tribunal appropriately recognised that the applicant’s written submission referred to the applicant fearing harm on the basis of his religion, notwithstanding that this had not been referred to as one of his claims for protection. It explored this claim with the applicant at the hearing. I accept the Minister’s submission that the applicant answered each of the three questions the Tribunal asked him about his religion at the hearing by referring to the political views of the royalist political parties in Nepal. It was open to the Tribunal to have regard to these responses in understanding the claim as articulated in the written submission and, in so doing, form the view that the applicant’s religious claims were one and the same as his political claims. The Tribunal adequately assessed the claim raised by the applicant in the written submission and as explained by him at the hearing.
I do not consider that proposed ground 2 would have sufficient prospect of success to warrant the grant of an extension of time in the circumstances of this case.
CONCLUSION IN RELATION TO THE EXTENSION OF TIME APPLICATION
I am not satisfied that it is necessary in the interests of the administration of justice to grant an extension of time in this matter. In summary, in reaching this conclusion, I have had regard to considerations including the following:
(a)the length of the delay is extreme, being almost three years, and the delay is not adequately explained from the time the applicant became aware of the Tribunal decision in March 2017 until he filed his application in August 2018;
(b)there is no specific prejudice to the Minister, although there is a general interest in the finality of litigation, including decisions in relation to visa applications; and
(c)the merits of the proposed judicial review application are not sufficiently strong to warrant the grant of an extension of time of almost three years, including where there is a period of 17 months where there is no adequate explanation for the delay.
The application for an extension of time is therefore dismissed.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 13 November 2024
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