EUE20 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 497
•16 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EUE20 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 497
File number(s): SYG 2565 of 2020 Judgment of: JUDGE KAUR-BAINS Date of judgment: 16 April 2025 Catchwords: MIGRATION – judicial review – protection visa – whether the Tribunal acted unreasonably in refusing to grant the applicant further time in which to provide a report from a psychologist – Tribunal sought explanation as to relevance of further report – Tribunal considered response as to relevance and provided an evident and intelligible justification which was reasonable for refusing the applicant further time to provide the medical report – application dismissed Legislation: Migration Act 1958 (Cth), ss 363(1)(b), 476, 477 Cases cited: EKN17 v Minister [2019] FCA 1135
Minister for Immigration and Boarder Protection v Pandey (2014) 143 ALD 640; [2014] FCA 640
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Subramaniam v Minister for Immigration & Multicultural Affairs [2002] FCAFC 255
Division: Division 2 General Federal Law Number of paragraphs: 29 Date of hearing: 18 March 2025 Counsel for the Applicant: Mr J Young Solicitor for the Applicant: MS Hague & Associates Counsel for the First Respondent: Mr J Pinder Solicitor for the First Respondent: Mills Oakley Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 2565 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EUE20
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
16 APRIL 2025
THE COURT ORDERS THAT:
1.The application 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 Kaur-Bains
The applicant, a citizen of Bangladesh, seeks judicial review of a decision of the Administrative Appeals Tribunal dated 13 October 2020. The Tribunal affirmed a decision of a delegate of the Minister to refuse the applicant’s Protection (Class XA) visa (protection visa). This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act). The application for review has been brought within the time set out in s 477 of the Act.
The applicant’s grounds for judicial review raise the issue of whether the Tribunal acted unreasonably in refusing to grant the applicant further time in which to provide a report from a psychologist before deciding the matter. Following a request by the Tribunal as to the relevance of the further medical report, the applicant’s representatives provided three reasons, being first, that the Tribunal had requested the report, second that the applicant’s mental state was “a product of persecution he experienced in Bangladesh” and finally that the applicant would be persecuted for an additional Convention reason, being his mental condition.
For the reasons that follow, no jurisdictional error is disclosed in the Tribunal’s refusal to give the applicant until 26 November 2020 to provide the report from the psychologist because the Tribunal considered the relevance of the further material and provided a reason why it considered that the further material would not be relevant. The reasons given by the Tribunal provided a reasonable evident and intelligible justification for its decision not to delay a decision on the review.
GROUNDS IN THE APPLICATION
The applicant’s amended application filed on 25 February 2025 contained the following five grounds for judicial review:
1.The applicant claimed that his current mental state was a product of the persecution he experienced in Bangladesh. The Administrative Appeals Tribunal ("the AAT"), in its decision dated 13 October 2020 at [78], accepted the applicant's claim that he "may be suffering from depression, anxiety and stress". However. the AAT did not deal with the applicant's claim that his mental state was a product, and therefore evidence, of the persecution he experienced in Bangladesh. The AAT thereby failed to deal with an integer of the applicant’s claims, which is a jurisdictional error.
2.The applicant claimed that he was attacked by Awami League members in 2011. The AAT found at [66] that "in light of his subsequent behaviour the Tribunal is not persuaded that this evidence can be believed". The AAT thereby focused on matters which told against a conclusion that the attack occurred. However, "the jurisdiction to conduct a review ... is not properly exercised simply by identifying one matter which tells against a particular conclusion and failing to give real consideration to the other matters which tell in favour of that conclusion": see EKN17 v Minister [2019] FCA 1135 at [91]. The AAT failed to give real consideration to the matters which told in favour of a conclusion that the attack occurred. This is a jurisdictional error.
3.The Second Respondent erred by unreasonably exercising its discretion to refuse the application on behalf of the Applicant on 28 September 2022. It should have extended the time for making submissions until a reasonable time after 28 November 2022, when the Applicant was booked with a psychologist for a detailed assessment.
4.The Second Respondent exercised its discretion unreasonably and/or denied the Applicant procedural fairness by advising the Applicant on 2 October 2022 that it would consider any further medical evidence provided before decision in circumstances where the Second Respondent knew that the medical evidence could not be provided before 26 November 2022.
5.The Second Respondent made jurisdictional error by confining evidence of the Applicant's mental health (which it accepted) solely to the issue of whether he might suffer future harm as a result of his mental health condition.
(as per original)
At the hearing before me, Counsel for the applicant said that the applicant was not pressing Grounds 1 and 2. The applicant’s Counsel sought leave to amend Ground 3 in the amended application to delete the words “when the applicant was booked with a psychologist for a detailed assessment”. Further, the applicant’s Counsel sought leave to amend Grounds 3 and 4 to change the dates referenced, which contained typographical errors. The applicant’s Counsel stated that Ground 5 can be taken to be read as a particular to Grounds 3 and 4 and not a separate stand-alone ground.
The Minister had no objection to leave being granted. Leave was granted so the grounds for review are as follows:
1.The Second Respondent erred by unreasonably exercising its discretion to refuse the application on behalf of the Applicant on 28 September 2020. It should have extended the time for making submissions until a reasonable time after 26 November 2020.
2.The Second Respondent exercised its discretion unreasonably and/or denied the Applicant procedural fairness by advising the Applicant on 2 October 2020 that it would consider any further medical evidence provided before decision in circumstances where the Second Respondent knew that the medical evidence could not be provided before 26 November 2020.
3.The Second Respondent made jurisdictional error by confining evidence of the Applicant's mental health (which it accepted) solely to the issue of whether he might suffer future harm as a result of his mental health condition.
CONSIDERATION
The applicant’s Counsel contended that the Tribunal erred in exercising its discretion unreasonably in refusing to provide further time for the applicant to put on medical evidence from a psychologist, which evidence was said to be relevant to:
(a)Whether there was probative evidence of a casual link between the applicant’s mental health issues and his claims of past persecution.
(b)Whether it might affect the Tribunal’s assessment of the applicant’s credibility
([7] of the applicant’s written submissions filed 25 February 2025 (AWS)).
The applicant also submits that the applicant “was not really claiming at all that his mental health would be a source of persecution in the future” ([8] AWS). Therefore, although the applicant’s migration agent and solicitor did give this reason as an additional reason for the relevance of the psychologist’s report to the Tribunal, the applicant’s Counsel did not press that as a valid reason at the hearing before me. Therefore, I will not deal with that reason given to the Tribunal as to the relevance of the psychologist’s report, except to note that the Tribunal noted at [79] to [82] that additional Convention claim and dealt with it on the basis that the Tribunal accepted the applicant may be experiencing some depression, anxiety and stress, but found on the basis of the country information and the applicant’s evidence that he was from a middle class family and had family support in Dhaka, where better mental health services are available.
To assess whether the Tribunal acted unreasonably in not agreeing to wait for the medical evidence, the procedural history and claims before the Tribunal must be considered.
Applicant’s Claims before the Tribunal
The applicant claimed that if he returned to Bangladesh, he will be seriously harmed by the Awami League (AL) supporters on account of his political membership of the Bangladesh Nationalist Party (BNP) ([19] Tribunal reasons (T)). The applicant claimed that in 2011 he became the Joint Secretary of Chhatra Dal at college and while he was standing in front of the main student office, he was randomly attacked by members of the Bangladesh Chhatra League, the student wing of AL. He claimed he was left unconscious and was rushed to the local hospital where he remained for three days (T[15]). The applicant stated that, following that incident and on the advice of his family, he departed Bangladesh in July 2012 to travel to Australia. The applicant also said he went back to Bangladesh in December 2015 to visit his family, but soon after his arrival he was brutally attacked by a group of members of the Chhatra League as he made his way to the main office of the BNP. As a result, the applicant claimed he was hospitalised for three days (T[17]).
Relevantly, the applicant told the Tribunal during the hearing that he was very depressed and fearful of returning to Bangladesh. The applicant told the Tribunal that he was not consulting a medical professional for his depression but requested further time to provide medical assessment (T[51]).
Request for further time following the hearing before the Tribunal
Following the hearing before the Tribunal, the applicant’s representative, in a letter dated 23 September 2020, asked the Tribunal for further time in which to provide a report from a forensic psychologist to a date after 26 November 2020 (CB 321). In support of the application for more time, the applicant’s representative provided two documents, being:
(a)A statutory declaration by the applicant, in which the applicant said that after the hearing (which was on 5 August 2020) he saw his GP on 24 August 2020, who referred the applicant to a psychologist, Amina Ahmed. The applicant saw the psychologist on 21 September 2020. The applicant said the psychologist would provide a report regarding the applicant’s mental health assessment on or about 26 November 2020 (CB 323).
(b)A letter from the psychologist dated 21 September 2020, which stated that the initial assessment was that the applicant was experiencing symptoms consistent with a diagnosis of depression, anxiety and stress in the extremely severe range. The letter also referred to a narrative obtained from the applicant, that the applicant had applied for a humanitarian visa as he was deeply involved in politics in Bangladesh. On his last visit to Bangladesh he was physically attacked due to his political affiliation. The applicant stated that he feared for his safety and his life if he returns to Bangladesh. The psychologist stated that the applicant had an appointment with the psychologist on 2 November 2020 for a detailed assessment for the “purpose of ascertaining the psychological symptoms” and that a report would be provided on 26 November 2020 (CB 325).
By letter dated 24 September 2020, the Tribunal noted the request for further time and asked the applicant to explain the relevance of a further report from the psychologist (CB 326).
By letter dated 28 September 2020, the applicant’s solicitor and migration agent explained the relevance as follows (CB 329):
Thank you for email in regard to relevance for psychologist report.
We respectfully submit that the presiding member requested this report after the hearing based on the fact exhibited during the hearing.
We state that the applicant attempted suicide in the past.
We strongly believe his current mental state is a product of persecution he experienced in Bangladesh. He was subject to oppression by political opponents in Bangladesh.
Furthermore, we submit that the applicant is going to be persecuted in addition to convention regard for the status of mental conditions.
The Tribunal in a letter dated 2 October 2020 refused the applicant further time to provide the report until 26 November 2020 and said the following (CB 331):
The Presiding Member has considered the submission and has decided not to grant the request, as the applicant has already been given sufficient time since the date of the hearing to provide the psychologist’s report. However, please note that the member will consider any further medical evidence provided until the time of decision.
Tribunal’s consideration of the request for further time
The applicant’s Counsel submitted, on the face of the above refusal letter from the Tribunal, the Tribunal refused the further time solely on the basis that the applicant had already had sufficient time, rather than a consideration of the relevance of the report. On the other hand, the Minister said the said letter is a notification letter as to the refusal and the reasons for the refusal are set out in the Tribunal’s reasons at [76] to [78], which were as follows:
Mental Health
[76] As outlined above the applicant’s representative has submitted that a psychological assessment report was requested by the Tribunal after the hearing based on the facts exhibited during the hearing. It is submitted that the applicant attempted suicide in the past and his current mental state is believed to be a product of the persecution he experienced in Bangladesh. It is also submitted that the applicant is going to be persecuted in addition for the status of his mental health condition.
[77] Firstly, contrary to the representative’s submission the Tribunal did not request that a psychological assessment report be provided. Rather, the representative asked for further time in order for the applicant to consult a psychologist. During the hearing the Tribunal queried the value of him doing so, expressly noting that the production of a psychological report at this stage of the proceedings would not establish a history of treatment for a diagnosed condition. Regardless, the Tribunal agreed to wait until 26 August 2020 for the submission of medical reports. On 26 August 2020 the Tribunal was advised that two days prior, the applicant had only just attended a consultation with his general practitioner. Nevertheless, the Tribunal subsequently granted an additional extension of time for a psychological assessment report to be provided by 28 September 2020. On 23 September 2020 the Tribunal was advised that the earliest date it could expect to receive the report is 26 November 2020. On 2 October 2020 the Tribunal declined the request for a further extension of time to produce a psychological report but informed the applicant that any further information provided prior to the time of decision would be taken into consideration. The Tribunal received no further information from the applicant. For reasons outlined below the Tribunal has decided to proceed with the review in the absence of a further report.
[78] During the hearing the applicant advised the Tribunal that he made a suicide attempt in 2014. His representative has submitted that his condition is a result of the political persecution he suffered in Bangladesh but as can be seen from the above reasoning the Tribunal is of the view he did not suffer any past harm for the reasons claimed. The available medical reports also draw a connection between the applicant’s mental health and his claimed fears of returning to Bangladesh on account of his past experiences and future fears. However, the Tribunal considers those remarks are merely a repetition of information relayed to the medical professionals by the applicant himself. The Tribunal accepts the applicant may be suffering from depression, anxiety and stress and that a further psychological report will likely re-confirm this. For this reason, and given the amount of time already afforded to the applicant to provide another report, the Tribunal but did not see any benefit in delaying the outcome of the review unnecessarily by waiting for a further psychological assessment. The Tribunal accepts, on the available information, that the applicant did attempt suicide in 2014 but is unable to conclude that it was due to any past harm he suffered in Bangladesh.
The Minister correctly accepted that a failure to accede to a reasonable request for further time to provide evidence can constitute procedural unfairness (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li) at [19] per French CJ). Where an applicant seeks more time to provide evidence, the Tribunal may be required to consider why the applicant requires more time. That would generally include matters relating to the further evidence that is to be supplied, the reason that the evidence has not been provided to date and the length of time required: Minister for Immigration and Boarder Protection v Pandey (2014) 143 ALD 640; [2014] FCA 640 at [32] per Wigney J.
Pursuant to s 363(1)(b) of the Act, at the relevant time, the Tribunal had a discretion to adjourn the review from time to time. The Tribunal was clearly aware of the discretionary power. Therefore, to determine whether the Tribunal’s decision to refuse the further time was reasonable, in the sense of having an evident and intelligible justification, I need to consider the Tribunal’s consideration of the application for further time having regard to the reasons given by the applicant’s solicitor and migration agent.
I accept the Minister’s argument, that given the Tribunal at [76] to [78] gave reasons for the refusal of the extension of time, those are the reasons for the Tribunal’s refusal rather than the comment referred to in its refusal letter set out at [15] of this judgment.
The Tribunal records at [76] of its reasons that the applicant’s solicitor and migration agent submitted that the further psychologist’s report was sought to be provided for three reasons, being:
(a)First, that the Tribunal had requested the further time after the hearing based on the facts exhibited during the hearing.
(b)Second, the applicant’s attempted suicide in the past and his current mental state is believed to be a product of the persecution he experienced in Bangladesh.
(c)Third, the applicant is going to be persecuted in addition for the status of his mental health.
I find the three reasons given by the Tribunal in its reasons, as set out in the preceding paragraph, reflect the reasons provided by the applicant’s solicitor and migration agent as set out in [14] of this judgment.
The Tribunal at [77] of its reasons, sets out part of the reasons for its refusal to grant the further time to provide the psychologist’s report, being:
(a)That contrary to what the applicant’s representative said, the Tribunal had not requested a psychological assessment report be provided.
(b)The Tribunal at the hearing had queried the value of providing a report from the psychologist now as it would not establish a history of treatment for a diagnosed condition.
(c)The Tribunal noted that despite the value of the report, it agreed to wait until 26 August 2020 for the medical report and subsequently provided a further extension of time until 28 September 2020.
(d)The Tribunal noted that on 23 September 2020, the applicant’s representative sought a further extension of time until 26 November 2020 and the Tribunal had refused for the “reasons outlined below”.
The Tribunal then identified its further reasons for not granting the further time at [78] of its reasons, being that the Tribunal:
Accepts the applicant may be suffering from depression, anxiety and stress and that a further psychological report will likely reconfirm this. For this reason, and given the amount of time already afforded to the applicant to provide another report, the Tribunal...did not see any benefit in delaying the outcome of the review unnecessarily by waiting for a further psychological assessment.
Given that the applicant was represented by a solicitor and a migration agent, who was squarely asked to provide the relevance of the further psychologist report sought to be obtained, it was reasonable for the Tribunal to determine the application for further time within the confines of the reasons provided. The Tribunal’s conduct in acting reasonably may well have been different if the applicant had not been represented and depending on the sophistication of the applicant as a self-represented litigant. However, in this case the applicant was represented by a solicitor and a migration agent and the Tribunal was acting reasonably in determining whether to grant the further time having regard to the specific reasons provided by the applicant’s representative as to the relevance of the psychologists report.
I find the applicant’s representative had not told the Tribunal that the further report was also relevant to proving that the applicant’s current mental health affected the evidence he gave at the Tribunal hearing and therefore was relevant to the Tribunal’s assessment of the applicant’s credibility. Given the applicant was legally represented at the Tribunal hearing, and no such relevance was alluded to, it was reasonable for the Tribunal not to consider the evidence was relevant to issues of the applicant’s credibility. Further, the Tribunal could not have been expected to be so alerted to the fact that the psychologist’s evidence might be relevant to credibility, because the psychologists own letter said that the applicant was being seen so the psychologist could ascertain the applicant’s “psychological symptoms”. Fairly read, this meant that the psychologist was to provide an opinion as to the applicant’s symptoms, being depression, anxiety and stress, which symptoms the Tribunal acceped.
Further, the applicant’s Counsel submitted at the hearing before me, that the psychologist report may have provided opinion evidence as to the consistency of the applicant’s current condition with past history and therefore may be corroborative evidence of the applicant’s evidence as to his claims. As noted by Drummond J in Subramaniam v Minister for Immigration & Multicultural Affairs [2002] FCAFC 255 at [34], such evidence may be corroborative and relevant. However, the difficulty for the applicant in this case, is that as I have said he was represented by a solicitor and a migration agent and when the Tribunal asked the representative to articulate the relevance, the solicitor and migration agent did not tell the Tribunal that the psychologist’s report may be relevant as being opinion evidence as to the consistency of the applicant’s current condition with past history and therefore be corroborative. Rather, the applicant’s representative said, “we strongly believe his current mental state is a product of persecution he experienced in Bangladesh”. This is quite different from saying that the psychologist’s opinion was sought as to the consistency of the applicant’s current condition with past history. Further, the psychologist’s letter provided to the Tribunal said the applicant was being seen so the psychologist could ascertain the applicant’s “psychological symptoms”. The psychologist did not say an opinion was sought as to the consistency of the applicant's current condition with past history and that such opinion could be provided. Given these matters, it was reasonable for the Tribunal to think that the psychologists report was being obtained to ascertain the applicant’s psychological symptoms.
Against this backdrop, I find the Tribunal did engage with the reasons provided by the applicant’s migration agent and solicitor as to the relevance of the psychologists report and provided a reasonable evident and intelligible justification for refusing further time, being that the psychologist’s report was likely to reconfirm that the applicant was suffering from depression, anxiety and stress and given that the Tribunal accepted that the applicant may be suffering from those psychological symptoms, there was no benefit in delaying the outcome of the review.
As no jurisdictional error has been disclosed, the application must be dismissed.
COSTS
I will hear the parties as to costs.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 16 April 2025
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