EMZ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FedCFamC2G 9

Federal Circuit AND FAMILY Court of Australia

EMZ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 9

File number(s):	ADG 333 of 2018
Judgment of:	JUDGE EGAN
Date of judgment:	3 September 2021
Catchwords:	MIGRATION – Application for Safe Haven Enterprise Visa – applicant suffering from severe mental illness which required ongoing medication – finding by Authority that the applicant did not have a well-founded fear of persecution if returned to Sri Lanka – no error on the part of the Authority – application dismissed.
Legislation:	Migration Act 1958 (Cth) ss 5H(1), 5J, 36(2)(a), 36(2)(aa), 46A, 473CB.
Cases cited:	Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293. AJZ17 v Minister for Home Affairs [2019] FCA 1485. ABT17 v Minister for Immigration and Border Protection & Anor [2020] HCA 34. Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429. Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421. Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611. Nabe v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1. Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99. Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210. Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228. Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. Minister for Immigration and Border Protection v SZVFW [2018] HCA 30. NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10. CSV15 v Minister for Immigration and Border Protection [2018] FCA 699.
Division:	Division 2 General Federal Law
Number of paragraphs:	47
Date of last submission/s:	25 August 2021
Date of hearing:	12 August 2021
Place:	Brisbane
Counsel for the Applicant:	Mr J. Marcus
Solicitor for the Applicant:	Dentons
Solicitor for the First Respondent:	Mr A. Chan of Sparke Helmore
Second Respondent:	Submitting appearance save as to costs

ORDERS

ADG 333 of 2018

BETWEEN:

EMZ18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

order made by:	JUDGE EGAN
DATE OF ORDER:	3 September 2021

IT IS ORDERED THAT:

1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.The Amended Application for Review filed on 15 June 2020 be dismissed.

3.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review, fixed in the amount of $7,853.00.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review 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 EGAN:

Introduction

1. The applicant is a Tamil Hindu citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival on 13 December 2012.

2. On 28 August 2015, the Minister lifted the statutory bar pursuant to the provisions of s. 46A of the Migration Act 1958 (Cth) (‘the Act’), and invited the applicant to apply for a protection visa.

3. On 15 June 2017, the applicant applied for a Safe Haven Enterprise (Sub Class 790) Visa (SHEV). [1] The SHEV application was lodged with the applicant’s statement [2] as well as with medical reports from SA Health (South Australia).

   [1]           Court Book (CB) p 58 – 98 inclusive.

   [2]           CB 90 – 95.

4. On 27 June 2018, a delegate of the Minister refused the visa application. The matter was referred to the Immigration Assessment Authority (‘the Authority’) for review of the decision of the delegate.

5. On 14 August 2018, the Authority affirmed the decision of the delegate.

   Consideration of Decision of Delegate by the Authority

6. At [3] of its reasons, the Authority recorded that it had had regard to the material provided to it by the Secretary pursuant to the provisions of s. 473CB of the Act.

7. At [4] of its reasons, the Authority recorded that it had obtained as new information an updated DFAT report related to the treatment of Tamils, asylum seekers and returnees which had been issued in May 2018. The Authority considered that there were exceptional circumstances justifying its consideration of such information, noting that the reports before the delegate were earlier 2015 and 2017 DFAT reports.

8. At [18] of its reasons, the Authority summarised the applicant’s claims for protection as follows:

   ·     “He is a single Tamil Hindu who was born in [name of place omitted] and lived in [names of places omitted]. He worked as a mason. He suffers from schizophrenia, diagnosed in early 2017.

   ·     According to his June 2017 statement there were a number of discrepancies between his entry interview and the application as he believes he was suffering an undiagnosed mental illness and so did not give accurate account at the entry (arrival) interview. For instance his beating occurred in 2010, not 2008 and his residential history was not accurate.

   ·     His family moved from [name of place omitted] to [name of place omitted] in 1997 due to heavy fighting and their home was destroyed in a shelling attack by the army.

   ·     In 2003 his sister married [name of person omitted], who was a member of the LTTE. They lived four or five houses away from the applicant and visited every day.

   ·     In 2007 the authorities shot [name of person omitted] at his home because he had been storing weapons at his home.

   ·     In order to protect him, the applicant’s mother sent him to Colombo to live with his other sister. Shortly afterwards authorities came to the family home looking for weapons and dug up the land. In the entry interview the applicant stated authorities asked him to show them where the weapons were, but that was not true. The applicant believes he miscommunicated this at interview due to his mental health problems.

   ·     In 2010 he returned to live with his parents. Six or seven people came to the home. They were CID and took him for questioning to Joseph camp. They interspersed the beatings with questions about LTTE weapons. His front tooth was chipped and left elbow beaten so badly the skin split and muscle was torn from his body. He was detained for 4 days. His mother took him to hospital. He returned home for a few days and then returned to live with his sister in Colombo.

   ·     Shortly after he arrived in Colombo he decided he wanted to leave the county and it took him a number of years to save money for a smuggler to take him. He took a boat from Batticaloa on 21 November 2012 and arrived on 13 December 2012.

   ·     Upon return, he believes he will subjected to serious and significant harm by authorities, including CID and SLA because he is Tamil, who the government believe supported the LTTE and hid weapons for them. He is considered to have committed a crime because he left illegally and will be detained and investigated and discover he is suspected of harbouring LTTE weapons and sought protection, which will make them further suspect he was engaged in crimes against the government.

   ·     He suffers serious mental health problems and sees a psychologist fortnightly and is on intramuscular and oral medication. Without the medication he suffers from severe psychotic episodes and hallucinations and has been hospitalised twice. Without the medication his condition will worsen. He fears being ostracised by society and unable to access the care he needs. He fears when interrogated he will not be able to respond satisfactorily due to his mental health problems, defend himself against accusations and will be detained and tortured. Due to his mental health issues he finds it extremely difficult to work and he would be dependent upon his family.

   ·     He has lost his ID card and without it cannot work and would need to return to his home area to renew it, where he fears he will be arrested and interrogated.

   ·     It was submitted the applicant feared persecution as a Tamil originating from Northern Province, as a LTTE supporter in opposition to the unitary state because he was the male in his family who resided in [name of place omitted] and [name of place omitted] at the height of the war, because of his sister’s marriage to an LTTE cadre who lived close by who was killed in 2007 for harbouring weapons, and because he was abducted and interrogated in 2010 by CID and as a failed asylum seeker from a western country, who departed illegally and person with a severe psychotic mental illness.

   ·     It was submitted the applicant will be unable to access medical treatment because it is plagued by poor funding, scarcity of resources, highly stigmatised. A report by psychiatrist found in a sample of persons with mental illness all had experienced harm from inability to access care, social exclusion, derogatory insults and throwing of rocks. Social stigma and lack of awareness of available treatment options prevent many from accessing medical help. There was a lack of available services and community based services were on an adhoc basis. It was submitted the applicant has consistently reported to deny having a mental illness and is unlikely to voluntarily seek assistance. In a rural area his condition will be dismissed as religious phenomenon and he will not receive support and care needed, particularly since his condition was not diagnosed until 2017. It was submitted psychiatrists are scarce and the medication the applicant is prescribed is unavailable in Sri Lanka. It was submitted without the medication his condition deteriorates with hallucinations and has led him to behave violently. It was submitted that the harm the applicant will suffer as his medical condition deteriorates amounts to significant harm. Further, the social attitudes against people with a mental illness would impact on his ability to subsist as he would be unable to work, at risk of social ostracism, homelessness, physical harm and destitution. It was submitted to return the applicant to Sri Lanka in light of his mental health problems would be to return him to inhuman and degrading treatment or punishment.

   ·     It was submitted the government’s failure to provide adequate mental health services amounts to a knowing omission and it is appropriate to infer an intention to inflict pain or suffering. It was submitted the harm the applicant faces arises from the specific lack of access to mental health services and two specific drugs, both of which are unavailable in the rural dominated area of [name of place omitted] which are necessary to prevent him from suffering severe pain and harm.

   ·     It was submitted that any person suspected of LTTE association, however indirect remains at risk of detention and torture. It was submitted that due to his condition the applicant presents as confused and disoriented and when interrogated at the airport there is a real chance that they will suspect he is trying to conceal LTTE connections.”

   (names of places and people omitted)

9. At [19] and [20] of its reasons, the Authority duly recorded what constituted a person as a refugee under s. 5H(1) of the Act, and what constituted a well-founded fear of persecution under s. 5J of the Act.

   Grounds of Review

10. On 15 June 2020, the applicant filed an Originating Application for Review of the decision of the Authority. On 15 June 2020, the applicant filed an Amended Application for Review which was relied upon at the hearing before the Court. The grounds of review were as follows:

    “Ground 1

    1. The IAA failed to conduct a review by failing to consider whether any law of Sri Lanka, that may lead to detention or other adverse action for reasons of the Applicant being a member of a particular social group, namely those with severe mental health issues, was 'appropriate and adapted', such that it did not amount to discrimination, qualifying as persecution for the purposes of section 36(2)(a) of the Migration Act 1958.

    1.1 The Applicant suffers from severe schizophrenia and has been treated involuntarily in Australia.

    1.2 The Applicant may become sick or non-compliant with treatment which may lead to physical manifestations of his condition, including aggressive behaviour, paranoia, hallucinations and other behaviour associated with psychosis.

    1.3 The Applicant made an express claim before the IAA that if he is returned to Sri Lanka, his schizophrenic condition will cause him to behave aggressively or psychotically and that he fears that the harm that he will suffer at the hands of police or the community as a result of his behaviour brought on by his mental health condition will amount to persecution.

    1.4 Whilst in such a state, the Applicant may attract the attention of the police or authorities and, therefore, the operation of laws that may lead to his detention or other adverse action being taken against him.

    1.5 Detention or other adverse action may be at the hands of the authorities, or otherwise may see the authorities not protect the Applicant from the actions of others.

    1.6 The IAA failed to have regard to the fact that a law of general application may differentially impact someone because of a protected characteristic and that, by so doing, the punishment meted out to that person can amount to persecution for a reason under section 5J(l)(a) of the Act.

    1.7 The IAA did not consider whether any such laws were 'appropriate and adapted' so as not to amount to persecution.

    1.8 The application of such laws to the Applicant was obvious and should have been taken into account by the IAA in conducting its assessment under s 36(2)(a) of the Act.

    Ground 2

    2. In considering whether the Applicant has a well-founded fear of persecution by reason of his membership of a particular social group, being persons with severe mental health issues, the IAA erred by asking itself the wrong question or failing to apply the correct test.

    2.1 The IAA concluded that the Applicant did not face a real chance of serious harm because of his mental health issues.

    2.2 In arriving at this conclusion, the IAA focussed primarily on:

    (a) Whether the Applicant could access mental health services and medication upon return to Sri Lanka. The IAA found that the Applicant would:

    (i)not be denied or unable to access mental health services for any of the reasons in s5J(l); and

    (ii) be able to access medication for his condition in Sri Lanka.

    (b)What he could, and should, do to avoid harm that may arise because of his mental illness. The IAA found that the Applicant would not face harm if he:

    (i) remained medication-compliant and, if he did not, he would have the support of his family and mental health care workers to assist in the management of his condition; and

    (ii)came in contact with the authorities, as he could explain his condition.

    2.3 The question of whether the Applicant could, would or should manage his condition is irrelevant to consideration of whether the Applicant faces a real chance of serious harm for reasons o/his membership of a PSG.

    2.4 The IAA failed to take into account the motivation and perception of the persecutors in relation to people with mental health issues.

    2.5 The IAA erred by, instead, focussing on the Applicant's conduct and what he could and should do to avoid persecutory conduct for reasons of his membership of a particular social group.

    2.6 The IAA asked itself the wrong question or failed to apply the correct test, which was whether there is a real chance that the Applicant would be persecuted/or reasons o/his membership of a particular social group of people suffering mental illness, such that it failed to exercise its jurisdiction.

    Ground 3

    3.The IAA failed to conduct a review according to law by engaging in an illogical and unreasonable reasoning process.

    3.1 The IAA found that the Applicant was a member of a 'particular social group' of people with severe psychotic illness, but that he was not at a real risk of serious harm.

    3.2 The IAA acknowledged that two of the Applicant's required medications were not available in Sri Lanka and required special permission to potentially obtain this medication. The IAA does not explain how it was satisfied that:

    (a)       the Applicant would obtain this permission;

    (b)       the medication would be able to be sourced;

    (c) it would be sourced consistently and within reasonable periods of time; and

    (d) the Applicant would be able to pay for this medication if permission was granted and medication sourced.

    3.3 The IAA found that the Applicant would not be unable to access services or face homelessness, but does not explain why given the acknowledged shortage of services.

    3.4 The IAA acknowledged that the Applicant had only superficial insight into his condition and required community support. The IAA found that the Applicant would not suffer serious harm should be become unwell in Sri Lanka, as he would have the support of:

    (a) mental health care workers and organisations, without explaining who these organisations were, how it was satisfied they would provide support to the Applicant or that the Applicant would access such services; and

    (b) the support of family, but there was no evidence before the IAA that the Applicant's family knew about, or understood, his illness.

    3.5 The IAA found that if the Applicant was medication compliant, he would not be at risk of serious harm, without explaining how the IAA was satisfied the Applicant would remain medication compliant, in light of his severe mental illness.

    3.6 The IAA found that the Applicant would not be at risk of serious harm from others without considering those who do not, or could not, know that the Applicant suffers from a mental illness.

    3.7 The IAA found that found that the Applicant would not face a real chance of serious harm if he were to come in contact with the authorities for his behaviour due to his mental illness because he has paperwork that explains his condition and behaviour when unwell and that this would assist him if he does encounter police. However, the IAA does not explain how such paperwork would assist in circumstances where the Applicant may be psychotic and the paperwork in English.

    3.8 The IAA failed to take into account the impact and logistics of the transition from Australia to Sri Lanka.

    3.9 The IAA engaged in an illogical and unreasonable reasoning process such that it amounts to a constructive failure to conduct a review according to law.

    Ground 4

    4. The IAA failed to conduct a review according to law by misapprehending the evidence presented to it.

    4.1 The IAA made a finding that the Applicant had not been detained by the Criminal Investigation Department (CID) or the police, stating that the Applicant was specifically asked in the arrival interview if he had ever been arrested or detained and the Applicant said, 'No'.

    4.2 The Applicant was asked multiple times during his arrival interview whether he had ever been arrested or detained.

    4.3 The Applicant consistently said that he had been and, on only one occasion, said he had not.

    4.4 The IAA did not consider it necessary to interview the Applicant or attempt to clarify with the Applicant the true state of his evidence.

    4.5 The IAA misapprehended the evidence of the Applicant.

    4.6 The IAA drew an adverse inference against the claims of the Applicant based on its misapprehension of the evidence.”

1. As to Ground 1 of the Amended Application for Review, it was conceded by Counsel for the Applicant that Grounds 1 and 2 were closely related. It was said, though, that Ground 2 identified the same error as in Ground 1, but for a different reason.

2. Ground 1 was a claim that the Authority had failed to conduct a proper review, in that it was submitted that the Authority had failed to consider whether any law of Sri Lanka which could lead to detention or other adverse action (because of the applicant allegedly being a member of the particular social group of people suffering from severe health issues) was “appropriate and adapted” such that it did not amount to persecution of the applicant under s. 5J of the Act.

3. In an extensive outline of argument, it was submitted on behalf of the applicant that the applicant had made express claims before the Authority as to his fear of returning to Sri Lanka because of his mental health issues. Support for those claims was submitted to be as set out in submissions made on his behalf and medical evidence produced by him – namely the South Australian Health Separation Summary dated 11 May 2017 [3] and the report of one Dr Ke Hoh dated 29 January 2018. [4] The applicant pointed to acceptance by the Authority that the applicant suffered from schizophrenia which it noted had resulted in past hospitalisation, and which required ongoing treatment. At [40] of its reasons, the Authority said as follows:

   “[40] I considered the medical evidence provided and have accepted the applicant has a mental illness (schizophrenia) that requires treatment, including two hospitalisation in 2017. Upon discharge from hospital in 2017 he had only superficial insight into his illness. I accept that he currently receives three medications and some community support which is needed to maintain good mental health and good functionality in the community. I note that the medical discharge summary indicated that the applicant’s mental health was exacerbated by alcohol and drug use and a referral was made regarding education about that. The discharge plan also noted a need to improve the applicant’s English literacy and communication skills, with the view to independently managing his own illness.”

   [3]           CB 146 – 148.

   [4]           CB 149.

4. The applicant claimed that if returned to Sri Lanka, he was fearful that he would suffer harm by reason of his mental illness. Specifically, the applicant made the following claims: [5]

   “(a) The Applicant was (and is) a member of a particular social group, being persons with a severe psychotic illness.

   (b) Due to lack of social insight into schizophrenia in Sri Lanka, he feared that he would be treated as a dangerous or possessed individual and arrested or attacked.

   (c)He feared that he would suffer harm at the hands of the authorities or the community for reasons of his membership of a particular social group, as a result of behaviour brought on by his mental condition, which harm would amount to persecution.

   (d)His illness would prevent him from constructing full and coherent answers to any questions from the authorities.

   (e)Consequently, his psychotic or violent behaviour would undoubtedly lead to him being put into custody.”

   [5]           Paragraph 23 (a) – (e) of Applicant’s submissions filed on 25 August 2021.

5. The applicant relied upon submissions dated 20 July 2018 from Playfair Visa and Migration Services which were sent to the Authority after the decision of the delegate. Reliance was placed upon the following submissions made on behalf of the applicant: [6]

   [6]           CB 195.

   “Aggressive psychotic behaviour and persecution

   Compounding the risk of persecution that he will face for his imputed political opinion is [name of person omitted] mental health condition. [name of person omitted] claims that if he is returned to Sri Lanka his schizophrenic condition will cause him to behave aggressively or psychotically and that due to lack of social insight into schizophrenia in Sri Lanka he will be treated as a dangerous or possessed individual and arrested or attacked. He fears that the treatment he will suffer from the police or the community as a result of the behaviour brought on by his mental condition will amount to persecution, particularly in light of his connection to [name of person omitted] and LTTE weapons.

   In support of the likelihood that his mental illness will cause him to behave aggressively or psychotically [name of person omitted] provided evidence in the form of a letter from his general practitioner dated 19 January 2018, and hospital discharge summaries dated 11 May 2017, 23 May 2017 and 16 June 2017. This evidence documents the multiple times that [name of person omitted] has been arrested and forcibly hospitalised (and absconded) after exhibiting aggressive and homicidal behaviour. His behaviour has been linked to hallucinations and delusions including that he was a king from 100 years ago, that he was married to a woman that he had never spoken to, and that the church was monitoring him and trying to kill him. [name of person omitted] carer also provided oral testimony during the protection interview describing instances of aggression exhibited by [name of person omitted], including when medication compliant. These included an incident where [name of person omitted] believed that he was the biblical character, David, and attempted to kill his carer whom he believed was Goliath.

   In support of the likelihood that he would be arrested and suffer harm from the authorities or from the community as a consequence of his behaviour [name of person omitted] provided country information documenting the social treatment of individuals with psychotic conditions. The post interview submission set out detailed evidence (from sources postdating those referred to by the Delegate in the decision) demonstrating that mental health conditions are denied or attributed to religious phenomena in the North and East of Sri Lanka, including by medical health professionals, that individuals with psychological disorders are misunderstood, and that persons exhibiting psychotic behaviour suffer from physical abuse.”

   (names of people omitted]

6. It was submitted that the Authority did not appropriately turn its mind to the applicant’s claims. It was submitted that the applicant had failed to: [7]

   “(a) engage in an active, meaningful and intellectual process with the relevant considerations regarding a well‑founded fear of persecution for reasons of membership of a particular social group, namely persons with a severe mental illness;

   (b) deal squarely with the question of whether the physical manifestations of the Applicant’s condition would still occur, or whether the physical manifestations would draw the attention of the authorities to the Applicant; and

   (c) have regard to the fact that a law of general application may differentially impact someone because of a protected characteristic (in this case being a member of a particular social group) and that, by so doing, the punishment meted out to that person can amount to persecution for a reason under section 5J(1)(a) of the Act.”

   [7]           Paragraphs 32 (a), (b) and (c) of Applicant’s submissions.

7. It was submitted that Sri Lankan laws would operate in a discriminatory way in respect of people such as the applicant because of their suffering from severe mental illness, namely “by not having regard to the impact of that illness on their behaviour or any treatment meted out by authorities under those laws”. The applicant relied upon Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 where, at [12] – [42] inclusive, the plurality (Gleeson CJ, Gaudron, Gummow and Hayne JJ) dealt with what constituted discrimination in respect of a particular social group, saying as follows:

   “A particular social group

   [12] In Applicant A v Minister for Immigration and Ethnic Affairs[4], Dawson J correctly pointed out, by reference to what was said in Ram v Minister for Immigration and Ethnic Affairs[5], that, in the Convention, there is a "'common thread' which links the expressions 'persecuted', 'for reasons of', and 'membership of a particular social group'".  Even so, it is convenient to deal with the question whether "black children" can constitute "a particular social group" as a discrete question.  Moreover, it is convenient to deal with that question before considering the nature of the connection which must exist between "persecuted" and the grounds specified in the Convention definition of "refugee" if a person is to come within that definition.

   [13] It was held in Applicant A that the "common thread" which links "persecuted", "for reasons of" and "membership of a particular social group" in the Convention definition of "refugee" dictates that "a shared fear of persecution [is not] sufficient to constitute a particular social group".  To treat it as sufficient would be to ignore the several parts of the definition for, as McHugh J pointed out, "Allowing persecutory conduct of itself to define a particular social group would, in substance, permit the 'particular social group' ground to take on the character of a safety-net.  It would impermissibly weaken, if it did not destroy, the cumulative requirements of 'fear of persecution', 'for reasons of' and 'membership of a particular social group' in the definition of 'refugee'.  It would also effectively make the other four grounds of persecution superfluous." Based on that consideration, it was held in Applicant A that persons who opposed China's "one-child policy" and feared enforced sterilisation did not, on that account, constitute "a particular social group" for the purposes of the Convention.

   [14]China's "one-child policy", which was the basis upon which refugee status was claimed in Applicant A, is, it seems, a policy of general application in China.  There was, thus, some discussion in that case of laws and practices of general application.  In particular, Dawson J observed that "[w]here a persecutory law or practice applies to all members of society it cannot create a particular social group consisting of all those who bring themselves within its terms." His Honour gave as an example "a law or practice which persecuted persons who committed a contempt of court or broke traffic laws".

   [15] In the observation to which reference has just been made, Dawson J was elaborating the proposition, with which he agreed, that one should not take too far the statement that, to qualify as persecution for reasons of membership of a particular social group, the conduct must be engaged in on account of "what a person is", and that conduct by reason of "what a person does" would not be sufficient.  As an example of a case where the proposition held good and was not taken too far, his Honour then gave the above example of a generally applicable law or practice "which persecutes persons who merely engage in certain behaviour or place themselves in a particular situation".  Such persons would not be persecuted by reason of their membership of a particular social group.

   [16]In the present matter, the majority in the Full Court held that "the principles explained in Applicant A preclude the identification of a relevant social group for Convention purposes, by recourse to the very laws and policies, being laws and policies directed to the whole population, which create the category of persons concerned."  Thus, in their Honours' view, "black children" could not be identified as a particular social group.  R D Nicholson J saw the issue as whether the laws which were likely to result in the appellant's adverse treatment in China were "such that [he] could not [be] a member of a particular social group of 'black children'".  Seemingly, in reaching those conclusions, their Honours were influenced by their understanding of what followed from the observation made by Dawson J in Applicant A with respect to laws and practices of general application.

   [17] It was by reference to laws of general application that it was argued in this Court that the majority in the Full Court was correct in holding that, for the purposes of the Convention, the appellant could not be identified as a member of a particular social group.  According to the argument, the laws or policies which are likely to result in the appellant's adverse treatment in China are laws of general application and, having regard to what was said by Dawson J in Applicant A, cannot create a social group for the purposes of the Convention.

   [18] There are difficulties with the argument that, because of the nature of the laws which will impact on the appellant if returned to China, he is not a member of a social group for the purposes of the Convention.  In particular and notwithstanding that China's "one-child policy" may be reflected in laws of general application which limit the number of children that a couple may have, that does not mean that the laws or practices applied to children born in contravention of that policy are laws or practices of general application.  Such children are, even within the sense of the distinction drawn by Dawson J in Applicant A, persecuted for what they are (the circumstances of their parentage, birth and status) and not by reason of anything they themselves have done by engaging in certain behaviour or placing themselves in a particular situation.  The sins of their parents, if they be such, are being visited upon the children.

   [19]Laws or policies which target or apply only to a particular section of the population are not properly described as laws or policies of general application.  Certainly, laws which target or impact adversely upon a particular class or group – for example, "black children", as distinct from children generally – cannot properly be described in that way.  Further and notwithstanding what was said by Dawson J in Applicant A, the fact that laws are of general application is more directly relevant to the question of persecution than to the question whether a person is a member of a particular social group.

   [20] In Applicant A, McHugh J pointed out that "[w]hether or not conduct constitutes persecution in the Convention sense does not depend on the nature of the conduct [but] ... on whether it discriminates against a person because of race, religion, nationality, political opinion or membership of a social group." In that context, his Honour also pointed out that "enforcement of a generally applicable criminal law does not ordinarily constitute persecution." That is because enforcement of a law of that kind does not ordinarily constitute discrimination.

   [21] To say that, ordinarily, a law of general application is not discriminatory is not to deny that general laws, which are apparently non-discriminatory, may impact differently on different people and, thus, operate discriminatorily.  Nor is it to overlook the possibility that selective enforcement of a law of general application may result in discrimination.  As a general rule, however, a law of general application is not discriminatory.  And Applicant A held that, merely because some people disagree with a law of that kind and fear the consequences of their failure to abide by that law, they do not, on that account, constitute a social group for the purposes of the Convention.

   [22] The question whether "black children" can constitute a social group for the purposes of the Convention arises in a context quite different from that involved in Applicant A.  That case was concerned with persons who feared the imposition of sanctions upon them in the event that they contravened China's "one-child policy".  In this case, the question is whether children, who did not contravene that policy but were born in contravention of it, can constitute a group of that kind.  To put the matter in that way indicates that the group constituted by children born in those circumstances is defined other than by reference to the discriminatory treatment or persecution that they fear.  And so much was recognised by the Tribunal in its finding that a "child is a 'black child' irrespective of what persecution may or may not befall him or her."

   [23] The circumstance that "black children" receive adverse treatment in China is descriptive of their situation and, as McHugh J pointed out in Applicant A, that may facilitate their recognition as a social group for the purposes of the Convention but it does not define them.  Accordingly there was no error in the Tribunal's finding that, for the purposes of the Convention, the appellant is a member of a particular social group.  The Full Court erred in holding otherwise.

   Persecution and the reasons for persecution

   [24] As already indicated, there is a common thread linking the expressions "persecuted", "for reasons of" and "membership of a particular social group" in the Convention definition of "refugee".  In a sense, that is to oversimplify the position.  The thread links "persecuted", "for reasons of" and the several grounds specified in the definition, namely, "race, religion, nationality, membership of a particular social group or political opinion"

   [25] As was pointed out in Applicant A, not every form of discriminatory or persecutory behaviour is covered by the Convention definition of "refugee".  It covers only conduct undertaken for reasons specified in the Convention.  And the question whether it is undertaken for a Convention reason cannot be entirely isolated from the question whether that conduct amounts to persecution.  Moreover, the question whether particular discriminatory conduct is or is not persecution for one or other of the Convention reasons may necessitate different analysis depending on the particular reason assigned for that conduct.

   [26] The need for different analysis depending on the reason assigned for the discriminatory conduct in question may be illustrated, in the first instance, by reference to race, religion and nationality.  If persons of a particular race, religion or nationality are treated differently from other members of society, that, of itself, may justify the conclusion that they are treated differently by reason of their race, religion or nationality.  That is because, ordinarily, race, religion and nationality do not provide a reason for treating people differently.

   [27] The position is somewhat more complex when persecution is said to be for reasons of membership of a particular social group or political opinion.  There may be groups – for example, terrorist groups – which warrant different treatment to protect society.  So, too, it may be necessary for the protection of society to treat persons who hold certain political views – for example, those who advocate violence or terrorism – differently from other members of society.

   [28]As McHugh J pointed out in Applicant A, the question whether the different treatment of persons of a particular race, religion, nationality or political persuasion or who are members of a particular social group constitutes persecution for that reason ultimately depends on whether that treatment is "appropriate and adapted to achieving some legitimate object of the country [concerned]".  Moreover, it is "[o]nly in exceptional cases ... that a sanction aimed at persons for reasons of race, religion or nationality will be an appropriate means for achieving [some] legitimate government object and not amount to persecution."    

   [29] Whether the different treatment of different individuals or groups is appropriate and adapted to achieving some legitimate government object depends on the different treatment involved and, ultimately, whether it offends the standards of civil societies which seek to meet the calls of common humanity.  Ordinarily, denial of access to food, shelter, medical treatment and, in the case of children, denial of an opportunity to obtain an education involve such a significant departure from the standards of the civilized world as to constitute persecution.  And that is so even if the different treatment involved is undertaken for the purpose of achieving some legitimate national objective.

   [30]The fact that "black children" are treated differently in China in consequence of the "one-child policy", which is a policy of general application, is relevant to the question whether that treatment amounts to persecution.  But if the conduct in question does amount to persecution, that consideration cannot then result in the conclusion that that persecution is not for the reason that they are "black children".

   [31]As earlier noted, the Tribunal found that, if returned to China, the appellant is likely to face discrimination amounting to persecution.  In reaching that decision, it proceeded on the basis that, in China, "black children" are treated differently from other children.  Moreover, it found that it was likely that the appellant would be "denied access to food, education and ... health care beyond a very basic level."  And as already noted, it also found that, having regard to his parents' financial situation, "when the benefits of subsidized education are withdrawn, [the appellant] will ... be unable to have an education".  Given those findings, it was clearly open to the Tribunal to find, as it did, that the treatment the appellant was likely to receive if returned to China amounted to persecution.  And significantly for present purposes, that finding has not been challenged.

   [32] Once it is accepted that "black children" are a social group for the purposes of the Convention, that they are treated differently from other children and that, in the case of the appellant, the different treatment he is likely to receive amounts to persecution, there is little scope for concluding that that treatment is for a reason other than his being a "black child".  As a matter of common sense, that conclusion could only be reached if the appellant had some additional attribute or characteristic and the treatment he was likely to receive was referable solely to that other characteristic or attribute.  However, it has not been suggested that that is the position.  Moreover, that is not the basis upon which either the Tribunal or the majority in the Full Court dealt with the matter.

   [33]As already indicated, the Tribunal based its conclusion that the adverse treatment the appellant is likely to receive in China is for a reason other than his being a "black child" on its view that the Chinese authorities were not motivated by "enmity" or "malignity".  Where discriminatory conduct is motivated by "enmity" or "malignity" towards people of a particular race, religion, nationality, political opinion or people of a particular social group, that will usually facilitate its identification as persecution for a Convention reason.  But that does not mean that, in the absence of "enmity" or "malignity", that conduct does not amount to persecution for a Convention reason.  It is enough that the reason for the persecution is found in one or more of the five attributes listed in the Convention.

   [34]In the present case, French J dealt as follows with this point:

   "The majority judgment in Applicant A supports the proposition that the apprehended persecution which attracts Convention protection must be motivated by the possession of the relevant Convention attributes on the part of the person or group persecuted.  But although the words 'enmity' and 'malignity' appear in the dictionary definitions of persecution and in some of the passages in the judgments, they do not mandate a narrow or constricting view of what may constitute the relevant connection between persecution and membership of the group.  Motivation connecting persecution to the relevant attribute is sufficient.  Persecution may be carried out coolly, efficiently and with no element of personal animus directed at its objects.  There are too many historical examples of the inhuman indifference of which governments are sometimes capable in the pursuit of persecutory policies to so narrow the concept.  The attribution of subjectively flavoured states such as 'enmity' and 'malignity' to governments and institutions risks a fictitious personification of the abstract and the impersonal.”

   [35]Persecution can proceed from reasons other than "enmity" and "malignity".  Indeed, from the perspective of those responsible for discriminatory treatment, it may result from the highest of motives, including an intention to benefit those who are its victims.  And the same is true of conduct that amounts to persecution for a Convention reason.  Accordingly, French J was correct to hold, as did the Full Court, that the Tribunal erred in finding that, because the different treatment which the appellant was likely to receive was not motivated by "enmity" or "malignity", that treatment was for a reason other than his being a "black child". 

   [36]Nor can it be said, as the Tribunal suggested, that the appellant faces a real risk of persecution in China, not because he is a "black child", but because of his parents' financial situation.  To say that the consequences that are likely to befall him in China will result from his parents' financial situation is simply to say that neither he nor his parents have the means to mitigate the consequences of his adverse treatment.  It may be that, if they had, the treatment in question could be viewed as appropriate and adapted to the implementation of China's "one-child policy" and not as persecution.  However, that question is entirely hypothetical and need not be pursued in this case.

   [37]Further, it is not correct to say, as was held by the majority in the Full Court, that the adverse treatment that is likely to befall the appellant is not because he is a "black child" but because of his parents' conduct in contravening China's "one­child policy".  To say that his parents contravened China's "one-child policy" is simply another way of saying that he is a "black child".

   Conclusion and orders

   [38]The Full Court erred in holding that "black children" could not constitute a social group for the purposes of the Convention and, also, in holding that the adverse treatment which the appellant was likely to experience in China was not by reason of his being a "black child" but because his parents had contravened China's "one-child policy".  It follows that the appeal must be allowed.

   [39]It was submitted on behalf of the Minister that, even if the appeal is allowed, the order of French J remitting the matter to the Tribunal to be dealt with on the basis that the appellant is entitled to refugee status should not stand. In that regard, counsel for the Minister relied on what was said in Minister for Immigration and Ethnic Affairs v Guo. Before turning to that case, it is convenient to note that by s 481(1)(b) of the Act, the Federal Court has power, when reviewing a decision of the Tribunal, to make "an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the Court thinks fit".

   [40]In Guo, the Federal Court declared that the applicants for judicial review "[were] refugees and [were] entitled to the appropriate entry visas".  It was held that that course was not open for it was for the Minister to determine whether the persons concerned were refugees, by reference to his satisfaction that they had that status, and their right "to the issue of visas, which the Full Court purported to declare with present effect, would only arise upon satisfaction of statutory conditions including the determination by the Minister".

   [41]The statutory regime which presently governs entitlement to the issue of a protection visa is somewhat different from that which applied when Guo was determined. As the Act now stands, s 36(2) provides:

   "A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." 

   That sub-section directs an objective enquiry. However, s 65(1) provides that, if the Minister is satisfied that the criteria prescribed by the Act and regulations for a particular class of visa are satisfied, that the grant of a visa is not prevented by the Act or other Commonwealth law, and that the application fee has been paid, the Minister "is to grant the visa" and, if not so satisfied, "is to refuse to grant the visa". Thus, although the Minister's satisfaction (or, in the case of the Tribunal, its satisfaction) is still required, s 65(1) imposes an obligation to grant a visa, as distinct from conferring a power involving the exercise of a discretion. The satisfaction that is required is a component of the condition precedent to the discharge of that obligation.

   [42]In the present case, the Tribunal concluded that but for the lack of "enmity" or "malignity" on the part of Chinese authorities, the treatment that the appellant was likely to receive in China was persecution for the reason that he was a member of the social group known as "black children". As already indicated, the lack of "enmity" or "malignity" cannot alter the fact that the persecution the appellant is likely to receive in China is for the reason that he is a "black child". Nor can any of the other matters which have been raised in opposition to that conclusion. Accordingly, French J was correct to hold that the Tribunal erred in failing to reach it or, in terms of s 65 of the Act, in failing to be satisfied that the appellant fell within the Convention definition of "refugee". That being so, s 481(1)(b) authorised the remitter of the matter to the Tribunal with a direction that it be dealt with on the basis that the appellant is entitled to refugee status.”

   (footnotes omitted)

1. The applicant further relied upon a decision of Moshinsky J in AJZ17 v Minister for Home Affairs [2019] FCA 1485 where, at [43] – [47], it was said as follows:

   “[43] The concept of discrimination in the context of a claim for protection under the Refugees Convention was explained by Gaudron J in Ibrahim at [24]-[33]. Her Honour stated at [29]:

   It is convenient now to turn to the concept of discrimination which, as has been pointed out, is an essential feature of persecution for the purposes of the Convention. Discrimination is not simply the different treatment of individuals or of classes of individuals. There are two distinct aspects to discrimination. The first, which needs no elaboration, is the different treatment of people who are not relevantly different; the second is the treatment of people who are relevantly different in a manner that is not appropriate and adapted to that difference. Treatment of the latter kind is usually, albeit inaccurately, referred to as indirect discrimination. And it is usually identified on the basis of its different impact on different groups within the population.

   (Footnotes omitted.)

   The judgment of Gaudron J in Ibrahim at [24] was cited by Keane, Nettle and Edelman JJ in BRF038 v Republic of Nauru (2017) 349 ALR 67 at [44] (fn 35). Although Gaudron J was in dissent, the above passage reflects principles discussed in other cases: see, eg, Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 at 478 per Gaudron and McHugh JJ.

   [44] It is apparent from the foregoing authorities that in certain circumstances the implementation or enforcement of a law of general application may amount to persecution within the meaning of s 5J(1)(a). Where this is alleged, a preliminary question is whether the law results in discriminatory treatment. That may be the case where the law treats people who are relevantly different in a manner that is not appropriate and adapted to that difference: Ibrahim at [29]. If there is discriminatory treatment, the next stage in the inquiry is to consider whether the treatment amounts to persecution. The relevant test is whether the treatment is appropriate and adapted to achieving some legitimate object of the country concerned: Applicant S at [43], citing Applicant A at 258.

   [45] In the present case, the Tribunal did not approach the matter in the way required by the authorities discussed above. The critical paragraphs of the Tribunal’s decision are [83]-[84]. Two aspects of the Tribunal’s reasoning in these paragraphs should be noted. First, at [83] the Tribunal reasoned that any treatment the appellant would suffer from the authorities would be due to the fact that the authorities did not recognise mental illness and would not, therefore, be because they discriminate against people with mental illness. This reasoning reveals that the Tribunal was proceeding on an erroneous understanding that discriminatory treatment only encompasses differential treatment, and does not encompass a failure to treat people who are relevantly different in a manner that is appropriate and adapted to that difference. Secondly, in paragraphs [83]-[84] the Tribunal focussed almost exclusively on the question of whether the feared treatment by the public, the police and the authorities would be “for reasons of” a Convention ground, namely membership of the particular social group of mentally ill persons in Kenya. The Tribunal reasoned that because the authorities in Kenya do not recognise mental illness, the treatment would not be “for reasons of” a ground referred to in s 5J(1)(a) of the Migration Act. (I note that s 5J(1)(a) uses the same language – “for reasons of” – and refers to the same grounds as the Refugees Convention.)

   [46]By reasoning in these two ways, the Tribunal did not give proper consideration to whether the Kenyan criminal laws would be implemented or enforced in a discriminatory manner with respect to people with a mental illness. As the passage from Applicant S makes clear, the fact that a law is of general application does not answer the question of whether or not it is discriminatory. In the case of a criminal law of general application, the law may be implemented or enforced in a discriminatory way (in the sense explained by Gaudron J in Ibrahim) if it does not recognise and therefore does not take account of a relevant difference, such as mental illness. Here, rather than asking whether the Kenyan criminal laws would be implemented or enforced in a discriminatory way, the Tribunal in effect assumed that because mental illness was not recognised, the law could not be discriminatory. Thus, the Tribunal did not properly analyse or consider whether or not the feared treatment would constitute discrimination. As indicated in [44] above, this was an essential and preliminary step in determining whether the treatment would constitute persecution for reasons of a ground referred to in s 5J(1)(a).

   [47]The primary judge relied, and the Minister in his submissions relies, on WZAPN at [72]-[77]. However, I do not consider anything in that passage (of the reasons of French CJ, Kiefel, Bell and Keane JJ) to be inconsistent with the propositions set out above. In WZAPN, French CJ, Kiefel, Bell and Keane JJ set out a passage from the judgment of Gleeson CJ, Gummow and Kirby JJ in Applicant S (namely, part of [43]) and then stated at [77] that the passage from Applicant S made clear that an inquiry into whether a law or policy is “appropriate” to some legitimate object of the country concerned is relevant only once it has been concluded that the law or policy results in discriminatory treatment for a reason specified by the Convention. The thrust of the Minister’s submissions in relation to WZAPN is that it was unnecessary for the Tribunal to inquire into whether Kenyan law was appropriate and adapted to achieving a legitimate object because it had concluded the law was not discriminatory. However, the passage in WZAPN at [77] proceeds on the basis that the question of discriminatory treatment has been analysed properly. In the present case, for the reasons discussed in [45]-[46] above, the Tribunal did not properly analyse or consider whether or not the feared treatment would constitute discrimination. Accordingly, I do not consider WZAPN to assist the Minister’s case or to detract from the analysis set out in [45]-[46] above.”

2. The applicant was critical of the Authority, submitting that the Authority had “failed to conduct a review by failing to consider whether any law of Sri Lanka, that may lead to detention or other adverse action for reasons of the applicant being a member of a particular social group … was “appropriate and adapted”, such that it did not amount to discrimination, qualifying as persecution … ”. [8] As to that submission, the Court finds that had there been any evidence put before the Authority, by or on behalf of the applicant, as to what laws in Sri Lanka may lead to detention or other adverse action, the Authority would have been in a position to readily undertake the inquiry/review for which it was criticised for not undertaking. However, nowhere in the material before the Authority was there any evidence of any law which might have so qualified. The applicant was submitting that the Authority perform a statutory obligation in a factual vacuum.  

   [8]           Paragraph 20 of Applicant’s submissions.

3. The applicant’s consolidated submissions filed on 25 August 2021 did not include any reference to a law of Sri Lanka as countenanced in Ground 1 of the Amended Application for Review. The transcript of the applicant’s interview with the delegate did not record that any law of Sri Lanka would operate in a discriminatory way vis-a-vis the applicant. No legislation was contained in Exhibit 1 (Court Book). The written reasons of the delegate did not record that any law in Sri Lanka was discriminatory in nature or effect regarding people who suffered mental illness. The finding of the delegate relating to services available to people suffering from mental illness in Sri Lanka was addressed as follows: [9]

   [9]           CB 167.

   “PSG ‘severe psychotic mental illness’

   As accepted under Part 4: Finding of Fact the applicant has been diagnosed in Australia with schizophrenia and has suffered from psychosis.

   The World Health Organisation stated that the public health system in Sri Lankan is provided by the State and has a robust public health network.61 Country information states that mental health services expansion is a priority of the Ministry of Health, particularly around post conflict areas. There is specialised mental health care with inpatient care, outpatient care and rehabilitation services.  It is also acknowledged that country information states that the specialised hospitals are overcrowded and mental health illness in Sri Lanka is increasing. Country information could not be located that indicates that people with severe psychotic mental illness in, Sri Lanka, are targeted and/or persecuted on that basis. Therefore, I do not find that the applicant is at real risk of serious harm if return to Sri Lanka on this basis. However, the applicant may face societal discrimination or stigma because of his mental illness and I will address this further in the assessment of Complementary Protection.”

4. The Court finds that it was the responsibility of the applicant to put before the Authority all material relevant to the applicant’s claims. To the extent that the applicant sought to advance an argument that he would suffer serious harm “at the hands of police or the community as a result of his behaviour brought on by his mental health condition”, [10] so as to amount to persecution, the applicant bore the onus of establishing such claim. So too was it the case in respect of the claim that the applicant’s mental illness was such that “the operation of laws … may lead to his detention or other adverse action being taken against him”.

   [10]          Ground 1.1.3 of the Amended Application.

5. The Authority was under no statutory obligation to act as the applicant’s advocate, or otherwise make out the applicant’s case by necessarily researching a plethora of Sri Lankan laws which might or might not be found to be discriminatory in operation toward the applicant. That was particularly so in circumstances where the subject decision under review by the Authority was a “fast track reviewable decision”.

6. The question as to whether or not the Authority, acting reasonably, ought to have got and considered new information, turns on the facts of each case. It was said by Kiefel CJ, Bell, Gageler and Keane JJ in ABT17 v Minister for Immigration and Border Protection & Anor [2020] HCA 34 at [1] – [9] as follows:

   “[1] Part 7AA of the Migration Act 1958 (Cth) confers jurisdiction on the Immigration Assessment Authority to review a "fast track reviewable decision", referred to it by the Minister for Immigration and Border Protection, by which a delegate of the Minister has refused to grant a protection visa to the "referred applicant". The Part has been examined in detail on several occasions.

   [2] The scheme of the Part is to impose a duty on the Authority to review the fast track reviewable decision referred to it by the Minister by "considering" the "review material" provided to it by the Secretary of the Department of Immigration and Border Protection at the time of referral, without accepting or requesting "new information" and without interviewing the referred applicant, subject to the Authority having specific powers to "get" and, in specified circumstances and on specified conditions, to "consider" new information. One way the Authority is empowered to get new information is by inviting a person, who can be the referred applicant, to give new information at an interview which the Authority can conduct in person or by telephone or in any other way.

   [3] The duty of the Authority to review a referred decision is imposed on the implied condition that the duty must be performed within the bounds of reasonableness, and the powers of the Authority to get and consider new information are likewise conferred on the implied condition that those powers must be considered and where appropriate exercised within the bounds of reasonableness.

   [4]The question of principle in this appeal is whether compliance with the reasonableness condition can compel the Authority to exercise its powers to get and consider new information by inviting a referred applicant to an interview in order to assess and consider his or her demeanour in the conduct of a review. The answer is that it can, and that in this case it did.

   The applicable principles

   [5] The nature of the jurisdiction exercised by the Authority when conducting a review of a fast track reviewable decision is settled:

   "[T]he Authority when conducting a review of a fast track reviewable decision is not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it. The task of the Authority ... is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met."

   [6] "Review material", which the Secretary is obliged in every case to provide to the Authority and which the Authority is obliged in every case to consider in exercising that jurisdiction, comprises material within three categories. The first is a statement concerning the referred decision setting out the findings of fact made by the delegate, referring to the evidence on which those findings were based and giving reasons for the decision11. The second is material provided by the referred applicant to the Minister before the delegate made the referred decision12. The third is other material in the Secretary's possession or control considered by the Secretary to be "relevant" to the review13 in the sense that it is "capable directly or indirectly of rationally affecting assessment of the probability of the existence of some fact about which the Authority might be required to make a finding".

   [7] Conformably with the nature of the jurisdiction to be exercised by the Authority in the conduct of the review, the obligation of the Authority to "consider" the review material provided to it by the Secretary is to "examine the review material ... to form and act on its own assessment of the relevance of that material to the review of the referred decision"

   [8] The purpose of obliging the Secretary to provide the review material to the Authority and of obliging the Authority to consider the review material provided to it by the Secretary is evidently to ensure that the Authority, in conducting its de novo consideration of the merits of the referred decision, has and examines for itself the same information that was before the Minister and that was therefore available to be taken into account by the delegate when making the referred decision.

   [9]"New information", which the Authority can only get and consider in the exercise of its specific powers, comprises any communication of "knowledge of facts or circumstances relating to material or documentation of an evidentiary nature" which was not before the Minister when the delegate made the referred decision that the Authority itself considers might be relevant to the review in the sense that it might be capable directly or indirectly of rationally affecting assessment by the Authority of the probability of the existence of some fact about which the Authority might be required to make a finding in determining afresh whether or not to be satisfied that the criteria for the grant of a protection visa have been met.”

   (footnotes omitted)

7. In circumstances where the applicant had not, either by himself, or by his lawyers or migration agents, put anything of evidentiary substance before the Authority relating to the question as to whether any law of Sri Lanka would have operated in a discriminatory way against the applicant, the Authority was not required to itself undertake such exercise. In the absence of the applicant putting any such evidence before the Authority, and then clearly articulating in what respect such law might have been discriminatory, it could not be said that the Authority failed to make an obvious inquiry about a critical fact, [11] or otherwise failed thereby to undertake a proper review of the applicant’s claims. [12] A clearly articulated argument requiring consideration by the Authority must have a factual basis. In the fast track review context in which the Authority was required to carry out its statutory duty, the Authority was not required to consider the applicant’s claim where the foundation for such claim was hypothetical.

   [11]          Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] – [27].

   [12]          Nabe v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 at [58],

   [61] and [68].

8. Alternatively, even if the Authority erred in failing to conduct its own research as to what law of Sri Lanka might have discriminated against the applicant, it could not be said that any such error was material in the light of the Authority’s finding at [47] of its reasons that the applicant did not face a real chance of serious harm if he was to come into contact with police or government authorities as a result of any of his behaviour caused by his mental illness. [13] It was open for the Authority to so find. It cannot be said that no other rational or logical decision maker could not have made the same decision as the Authority. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:

   “[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

   [131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

   …

   [135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”

   [13]          Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421.

1. Otherwise, the Authority did specifically address the applicant’s claims at [41] – [47] of its reasons. At [45] of its reasons, the Authority said as follows:

   [45] Based on the country information, I accept that the applicant may face some social stigma due to his mental illness. However, the country information also indicates that steps are being taken to reduce the stigma and increase awareness. I accept that the stigma of mental illness can lead to delay in diagnosis. However, the applicant was diagnosed in Australia and is on medication. He therefore does not face a delay in diagnosis. While I accept the applicant may face some social stigma such as, name calling or some ostracisation, particularly when unwell, I do not accept that amounts to serious harm. Further I do not accept he will be unable to access services or that he faces homelessness or serious harm.

2. As to the claim that the Authority did not intellectually deal with the possibility that the applicant’s mental illness might cause him to fall foul of the authorities due to his becoming physically violent, the Authority dealt with such scenario at [46] – [49] of its reasons. The Court accepts the first respondent’s submissions that in respect of the applicant’s condition: [14]

   “(a)      There was inpatient treatment available in Sri Lanka: CB 214, [46];

   (b)He had the necessary paperwork and medication to assist with explaining his mental health condition to the Sri Lankan authorities: CB 214, [46];

   (c) Country information indicated that there were resources such as mental health workers, doctors and organisations to help with the management of mental health conditions: CB 214, [47]; and

   (d)Even if he were so unwell so as to lose insight of his treatment, he had the support of his family and the other resources mentioned in the country information: CB 215, [49].”

   [14]          Paragraph 13 (a) – (d) of First Respondent’s submissions filed on 19 August 2021.

3. Further to the Court’s finding that the Authority was not under any statutory obligation to independently investigate whether any law of Sri Lanka discriminated against the applicant or not, the Court finds that in the light of the Authority’s finding that the applicant might face some social stigma due to his mental illness, and the finding that if un-medicated he might require some police assistance to take him to hospital, the Authority was entitled to find that the applicant did not face a real chance of persecution if returned to Sri Lanka. It did so after having weighed up all of the evidence before it.

4. The case of AJZ17 v Minister for Home Affairs [2019] FCA 1485 relied upon by the applicant was clearly distinguishable from the facts of the present matter. In AJZ17 there was evidence that the Kenyan legal system did not recognise mental health disorders. That was to be contrasted with the Sri Lankan situation where, as early as 2010, it was recorded that Sri Lanka’s progress in the mental health sector was commendable, and that Sri Lanka had achieved a significant improvement in human resources development and expansion of resources and facilities. [15]    

   [15]          Exhibit 2 p 236 – UK Home Office Country of Origin Report on Sri Lanka of 7 March 2012 – paragraphs

5. In circumstances where the applicant failed to put any evidence before the Authority as to which law of Sri Lanka might have operated in a discriminatory way against the applicant as a member of the particular social group of people suffering from severe mental illness, the Authority did not err in the way it assessed the applicant’s articulated claims in that regard. [16] There was no relevant context in which the Authority was able to consider such claims. There is no merit to Ground 1 of the Amended Application for Review.

   [16]          Nabe v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 at [58],

6. Ground 2 of the Amended Application for Review was a claim that the Authority asked itself the wrong question, or failed to apply the correct test, when considering whether the applicant had a well-founded fear of persecution by reason of his being a person who suffered from a severe mental illness. There is no merit to such claim.

7. The Authority found that having regard to the mental health services available to the applicant in Sri Lanka, and the ability of the applicant to access anti-depressant and therapeutic drugs in Sri Lanka, [17] there was not a real chance that the applicant would not be harmed by the authorities, or attacked by members of the community. At [40] – [53] inclusive the Authority carefully considered all aspects of the applicant’s claims in the context of his having a serious mental illness. Inherent in its analysis of all of the evidence before it on the question of mental illness treatment in Sri Lanka – evidence which included relevant country information referred to by the Authority in its reasons – was an understanding by the Authority that the applicant was a member of a particular social group. The Authority had recorded at [20] of its reasons what constituted a well-founded fear of persecution, and at [41] of its reasons it accepted that the applicant was a member of the particular social group of people who suffered from a severe psychotic illness.

   [17]          Exhibit 2 p 236 – UK Home Office Country of Origin Report on Sri Lanka of 7 March 2012 – paragraph

8. The reasons of the Authority correctly addressed the requirements for a finding of a well-founded fear of persecution under s. 5J (4) of the Act. The Authority noted that the applicant had been hospitalised in the past, and that he had received ongoing medical treatment for his condition. The Authority considered what would happen if the applicant failed to remain medicated, and found that his needs were able to be catered for. The Authority did not err in the way in which it addressed the question of whether or not there was a real chance that the applicant would be persecuted because he was a person who suffered a serious mental illness.

9. As to Ground 3 of the Amended Application, the applicant claimed that the Authority engaged in an illogical and unreasonable reasoning process. There is no merit to such claim.

10. An applicant must meet a high bar when challenging a decision on the basis that it was  illogical or unreasonable. The Court agrees with the first respondent’s statement of principle at [32] of its written submissions as follows:

    “(a) In relation to illogicality, the illogicality demonstrated must be extreme illogicality or irrationality, measured against the standard that it is not enough for the question of fact to be one which reasonable minds may come to different conclusions. [18]

    (b)Caution should be exercised when considering the rationality or logicality of a decision, as such arguments can “too readily be used to conceal what is in truth simply an attack of the merits” of a decision. [19]

    (c)In relation to unreasonableness, a decision which lacks an evident and intelligible justification is unreasonable. [20]

    (d)A decision which no reasonable person could have arrived at, or one which is arbitrary or capricious, is unreasonable. [21]

    (e)However, a decision-maker is allowed an area of decisional freedom within which reasonable minds might properly differ.[22]Put differently, unreasonableness is not established simply because the Court would have taken a different view of the matter. [23]

    (f)Emphatic disagreement with a factual finding does not demonstrate any unreasonableness. [24]

    (g)The test for unreasonableness is “necessarily stringent”,[25] “extremely confined”[26] or requires something “in the realm of the extraordinary”. [27]

    (h)In relation to country information, the choice and assessment of the weight to be given to such information are factual matters for decision-makers. [28]”

    [18]          Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [148].

    [19]          Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 at [55]-

    [20]          Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) at [76] (Hayne, Kiefel and Bell

    [21]          NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 at [26]

    [22]          Li at [28] (French CJ), [65]-[66] (Hayne, Kiefel and Bell JJ).

    [23]          Li at [30] (French CJ), [75] (Hayne, Kiefel and Bell JJ); [107] (Gageler J).

    [24]          Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40] (Gleeson CJ

    [25]          Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 (SZVFW) at [11] (Kiefel

    [26]          SZVFW at [52] (Gageler J).

    [27]          SZVFW at [70] (Gageler J).

    [28]          NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]-

11. The Authority addressed the question of availability of drugs able to be accessed by the applicant in Sri Lanka, recording at [41] of its reasons that hospitals in Sri Lanka are generally well staffed and equipped to meet community health demands, and that mental health service expansion was a priority of the Ministry of Health, particularly in post-conflict areas. It was further recorded that there was universal free health care, and that the Sri Lankan State Pharmaceutical Corporation provided medication for schizophrenia. That the applicant was a person whose condition was exacerbated by drug and alcohol abuse was recognised by the Authority at [40] of its reasons.

12. The Authority’s findings were not illogical or unreasonable. They were based upon reliable country information which dealt with the treatment of mental health issues in Sri Lanka. It was open for the Authority to find that as a result of the applicant’s regular contact with his sister and mother, who continued to live in Sri Lanka, that he would receive assistance from his family. The Authority was entitled to rely upon such country information as it considered reliable, and was unfettered within the bounds of reasonableness as to how it treated such country information.    

13. On the question of whether the applicant’s health would deteriorate because of his return to Sri Lanka, the Court accepts the first respondent’s submission that s. 36(2)(a) of the Act was concerned with persecution inflicted upon a person by others, rather than such person suffering illness by reason of their return to their home country. [29] The Authority did not err in the way it considered the applicant’s claims.

    [29]          CSV15 v Minister for Immigration and Border Protection [2018] FCA 699 at [30] – [31] per Collier J.

14. Ground 4 of the Amended Application for Review was a claim that the Authority misapprehended the evidence presented to it concerning whether the applicant had ever been arrested. It was submitted on behalf of the applicant that the transcript of the arrival interview, from point 00:28:24 – point 00:31:22, indicated that the applicant mostly responded in the positive to the question “ … have you ever been arrested … ”, until at last saying that he hadn’t been. The first respondent submitted that the relevant answer was in the negative. The Court finds that it was initially unclear to the interviewer whether the applicant was intending to answer in the negative or the positive to the question. It was open for the Authority to find that the applicant only gave a responsive answer in the positive. The Court accepts the first respondent’s submissions that the interviewer pressed the applicant for a definite response because of the prevarication of the applicant in initially providing an answer. It ought to be inferred that the interviewer did so persist in circumstances where the interviewer – who was best placed to assess whether the applicant was truly being responsive or not at the time of the asking and answering of questions – was not satisfied that the applicant had clearly answered the question he was asked. The relevant dialogue was as set out in the transcript recorded at [117] of the applicant’s submissions as follows:

15. The Authority was entitled, in part, to rely upon that negative answer when assessing, both individually and cumulatively, the applicant’s claims. Such consideration was but part of a larger factual matrix also carefully considered by the Authority. Another rational and logical decision maker could have equally relied upon such answer as truly being in the negative. [30]

    [30]          SZMDS at [131].

16. It was open for the Authority to find that the applicant did not meet the refugee requirements as set out in s. 5H(1) of the Act so as to qualify for protection under s. 36(2)(a) of the Act.

17. It was further open for the Authority to find that there was not a real risk that the applicant would suffer significant harm if returned to Sri Lanka, and that the applicant was not owed complimentary protection under s. 36(2)(aa) of the Act.

18. There is no merit to Ground 4 of the Amended Application for Review.

19. The decision of the Authority could not be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

    “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

    …

    [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

20. The applicant has failed to establish jurisdictional error on the part of the Authority.

21. The Amended Application for Review is without merit and is dismissed.

22. The Court will hear the parties as to costs.  

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       3 September 2021

            23.21 – 23.22.

[61] and [68]

            23.30.

[56].

            JJ).

            (Black CJ).

            and McHugh J).

            CJ).

[14].