FJN17 v Minister for Immigration
[2019] FCCA 274
•8 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FJN17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 274 |
| Catchwords: MIGRATION – Immigration Assessment Authority – safe haven enterprise visa – whether an error of fact made by the Authority amounted to jurisdictional error – whether the Authority made findings for which there was no evidence – whether the Authority failed to consider a claim or integer of a claim made by the applicant. |
| Cases cited: Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1; [2018] HCA 34 Minister for Immigration and Border Protection v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 Sidhu v Minister for Immigration and Border Protection (2018) 359 ALR 1; [2018] HCA 34 |
| Applicant: | FJN17 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File number: | MLG 2673 of 2017 |
| Judgment of: | Judge Riley |
| Hearing date: | 16 November 2018 |
| Date of last submission: | 16 November 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 8 February 2019 |
REPRESENTATION
| Counsel for the applicant: | Siobhan Kelly |
| Solicitors for the applicant: | Victoria Legal Aid |
| Counsel for the first respondent: | Tim Goodwin |
| Counsel for the second respondent: | No appearance |
| Solicitors for the respondents: | Clayton Utz |
ORDERS
The decision of the Immigration Assessment Authority made on 3 November 2017 in matter number IAA17/02616 be set aside.
The matter be remitted to the Immigration Assessment Authority for determination according to law.
The first respondent pay the applicant’s costs of the proceeding fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2673 of 2017
| FJN17 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
And
| IMMIGRATION ASSESSMENT AUTHORITY |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Immigration Assessment Authority. In that decision, the Authority affirmed a decision of a delegate of the Minister for Immigration and Border Protection not to grant the applicant a safe haven enterprise visa.
The applicant’s claims
The applicant summarised his claims in his written submissions to this court as follows:
3. The applicant is a citizen of Sri Lanka. He was born in [a particular town], Eastern Province, Sri Lanka. He is of Tamil ethnicity and is an adherent of the Hindu religion.
4. In November 2012, the applicant, his sister and her husband, two of the applicant’s nieces and his brother in law, fled Sri Lanka. They travelled by boat to the Cocos Islands. The boat was then intercepted by the Australian Navy. The applicant arrived in Australia on 24 November 2012. On arrival the applicant was deemed, by operation of the Migration Act in its then form, to be an irregular maritime arrival.
5. On 16 March … [2013] the applicant underwent an irregular maritime arrival interview. In the course of that interview, the applicant said that he came to Australia because:
(a) he lived with his sister and she had a problem and decided to leave;
(b) he had a problem with the Karuna group, who had slapped him once and attacked people;
(c) the Karuna group came to his house and were looking for his sister’s husband and they asked him where he was;
(d) he said he didn’t know, and they slapped him and gave him a warning; and
(e) these events had happened three weeks before he and his sister left Sri Lanka.
6. On 22 April 2016, the applicant applied for a SHEV. On 26 April 2016, the applicant made a statutory declaration in support of his application in which he said:
(a) his sister’s family, with whom he lived, had some trouble with the Karuna group;
(b) he understands it was to do with the Tamil political candidate from his province;
(c) the Karuna group had warned his brother in law not to support the Tamil candidate, but his brother in law had been involved in the campaign, distributing posters, for example;
(d) about fifteen days before he left Sri Lanka, he was home alone;
(e) a group of men in plain clothes entered the house;
(f) the men were carrying guns;
(g) one of the men said to him in Tamil “Where is the family?”;
(h) the applicant told them that they had gone to his mother’s house, in case he got them into trouble;
(i) the man with the gun made a threat, and said “next time I see you and your family, wherever I see them, I will kill them”;
(j) the applicant presumed that the man believed him to be his brother in law’s son;
(k) the man hit him across the face with a closed first (sic) and left with the other men;
(l) the applicant later learned that the men drove to his mother’s house, where they asked his female cousin where the family was;
(m) the applicant was frightened and ran to his uncle’s shop located behind the home to tell him what had happened;
(n) his sister and brother in law came home, and the applicant told them that the men had warned him that they would return, and that their lives would be in danger;
(o) they packed up their belongings and left that night;
(p) they drove through the night and arrived at Vargarai in the middle of the night;
(q) his brother in law then transferred his work contract to someone else and made arrangements for them to leave Sri Lanka; and
(r) fifteen days later, they left Sri Lanka by boat.
7. On 13 January 2017, the applicant underwent a protection visa interview. In the course of that interview, it is recorded that he said:
(a)that his “big sister” (not the one with whom he fled) had been “disturbed by unidentified people” and that his mother told him that she had gone “into hiding or to some foreign country”;
(b)that his brother in law had issues with the Karuna group because:
(i) he was doing road contracts and was “putting the roads”; and
(ii) he was helping someone in the elections;
(c) his brother in law supported the Tamil political candidate by putting up posters, visiting houses and asking for votes;
(d) that the applicant personally had no issues before the incident in his sister’s home;
(e) that he knew the men who came to his home were from the Karuna Group because he had seen and heard them and had been told by his mother that there was fighting between two groups;
(f) that he told the men that his sister and brother in law were at his mother’s house, rather than at work, because of the threat to kill them and he was scared and “just trying to adjust the situation”;
(g) that he did not know whether his brother in law had any issues prior to the event in his sister’s home;
(h) that when the man punched him in the face the man said he would kill the whole family and that the applicant believed that if he went back to his mother’s house he was putting his mother’s life in danger;
(i) that the Karuna group had members in the village who would be able to identify him and harm him if they chose; and
(j) his brother in law was wealthy, and this made his brother in law vulnerable to blackmail.
8. On 15 January 2017, Playfair filed written submissions in support of the applicant’s claims.
9. Through the above materials, the applicant expressed a fear of harm:
(a) from the Karuna group, on the basis of imputed political opinion, being an imputed political opponent of the Karuna group, anti-government or a supporter of Tamil political candidates;
(b) from the Karuna group, on the basis of his imputed political opinion, being an imputed supporter of the Liberation Tigers of Tamil Eelam;
(c) from the Karuna group, on the basis of his Tamil ethnicity;
(d) on the basis of his Tamil ethnicity;
(e) due to his membership of a particular social group, being a family member of a perceived wealthy business man;
(f) due to his membership of a particular social group, as an individual suffering with poor mental health who has attempted suicide; and
(g) from the Sri Lankan Government as a failed asylum seeker.
10. He also claimed complementary protection, on the basis of:
(a) significant harassment by para-military and criminal gangs, namely the Karuna group;
(b) significant economic hardship that threatens his capacity to subsist;
(c) denial of access to basic services, where the denial threatens his capacity to subsist;
(d) denial of capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist; and
(e) threats to his life and liberty.
(footnotes omitted)
The Authority’s reasons
The applicant summarised the Authority’s reasons for decision in his written submissions to this court as follows:
13. The IAA accepted that the applicant had lived with his sister and brother in law in Sri Lanka. The IAA also accepted the applicant’s narrative about the events leading to his departure from Sri Lanka, including that:
(a)while the applicant was home alone, a group of men came to the home and started searching the house;
(b)in the course of the search, the applicant was assaulted;
(c)the applicant’s brother in law was involved in political activity;
(d)supporters of certain political councillors were intimidated after the 2012 elections;
(e)… the Karuna group was active in the applicant’s area in 2012;
(f)it was possible that the Karuna group sought to intimidate the applicant’s brother in law for his political activity and imputed political opinion during or shortly after the 2012 elections;
(g)… the applicant’s brother in law was a wealthy Tamil businessman;
(h)it was possible that the applicant’s brother in law was targeted by reason of his wealth.
14.[The] IAA also accepted that the applicant was suffering from mental health conditions but declined to make a finding as to the diagnosis.
15.The IAA accepted that the applicant had a subjective fear of the Karuna group. The IAA accepted that the Karuna group was involved in extra-judicial killings, disappearances and kidnappings for ransom. The IAA was not satisfied that the applicant’s brother in law would be pursued or harassed on return and, consequently, was not satisfied that the applicant faced a real chance of harm emanating from his brother in law’s political involvement.
16.The IAA did not accept that the applicant would be perceived as wealthy himself or would face harm due to this connection to his brother-in-law’s wealth. The IAA did not accept that, even if the assault on the applicant was perpetrated by members of the Karuna group, its supporters would identify him on his return or that the threats made in 2012 would be carried out.
17.The IAA did not accept that the applicant had any links to the LTTE. It did not accept that the applicant was at risk of harm by reason of his Tamil ethnicity.
18.The IAA found that the applicant’s mother and four siblings still live in Kottaikallaru, and that the applicant had not claimed that any of his family had suffered harm at the hands of the Sri Lankan authorities or criminal gangs. The IAA found that the applicant had not provided information that his family had been of interest to the authorities since he left Sri Lanka.
19.The IAA concluded that although the Karuna group is still active, there was not a real chance that it would subject the applicant to harm based on his political opinion, association with a wealthy Tamil businessman or his Tamil ethnicity or any combination of those circumstances.
20.The IAA found that because the applicant had availed himself of mental health services in Australia, he would do so in Sri Lanka. The IAA also found that the applicant would have access to his family network for support to seek mental health treatment and eventual employment. The IAA was not satisfied that the stigma associated with seeking health health (sic) care, or the lack of services for mental illness in Sri Lanka, was a result of “systemic and discriminatory conduct” on the part of the state. The IAA was not satisfied that the applicant would be prevented from accessing health services.
21.The IAA accepted that it was likely that the applicant would be questioned by Police on his return to Sri Lanka. The IAA accepted that the applicant would be detained for a brief period, pending a hearing on bail. The IAA was satisfied that these consequences would result from the applicant having breached the Sri Lankan Immigrants and Emigrants Act 1949.
22. The IAA was not satisfied that … the applicant would suffer persecution on the basis of departing the country illegally, having sought asylum in Australian (sic) and being returned or any combination of those factors.
23.It was accepted that the health care available in Sri Lanka is not commensurate with that in Australia. However, the IAA was not satisfied that the applicant’s inability to access the same level of mental health care constituted significant harm.
24.The IAA further accepted that the applicant would be detained … [on] return to Sri Lanka and potentially detained on remand for a number of days pending bail. It did not accept that poor prison conditions constituted significant harm. It did not accept that being subjected to questioning or fined constituted significant harm.
25.For these reasons, the IAA concluded that the applicant was not entitled to complementary protection.
(footnotes omitted)
Ground 1
The first ground of review in the application filed on 7 December 2017 and amended on 23 October 2018 (“the application”) is:
The IAA constructively failed to discharge its statutory task by misconstruing the applicant’s claim, failed to apply itself to the real question to be decided or misunderstood the nature of the opinion it was to form.
Particulars
1.At paragraph [5] the IAA summarised the applicant’s claims. In the sixth dot point of paragraph [5], the IAA recorded:
When he told his mother what happened, this (sic) mother told people that T had gone into hiding or to some foreign country. (error in the applicant’s written submissions)
2.The IAA understood … “T” to be the sister with whom he lived in Sri Lanka and with whom he left to Australia.
3.In fact, the applicant said [that it] was … his “big sister” (not being the sister he lived with, and with whom he travelled to Australia) [who] was disturbed in Sri Lanka by unidentified people and his mother told him that his “big sister” had “gone into hiding” or “to some foreign country”.
4.This was not a statement about what the applicant’s mother told people about the fate of “T”, but a statement about what had befallen another of the applicant’s sisters.
5.The IAA stated that the applicant had “not provided any information to suggest that any of his family members remaining in Sri Lanka have come to the attention of the Karuna group, either because of their political opinion, links to the LTTE or for the purpose of extortion”. That statement was wrong. The applicant had made such a claim and had offered evidence in support of it. The evidence described above was that which the IAA said was lacking – namely, evidence of adverse consequences for a member of the applicant’s family after his departure. If accepted, it was capable of bearing on the question of whether the applicant was at risk of harm if he returned to Sri Lanka on the basis of his association with his brother in law.
6.The IAA misconstrued the applicant’s claim. In doing so, it failed to apply itself to the real question to be decided and/or misunderstood the nature of the opinion it was to form. For these reasons, the decision is affected by jurisdictional error.
The Minister conceded that the Authority made an error of fact in its reference to T having gone into hiding or to a foreign country, when the applicant had claimed that it was another of his sisters who had done that. However, the Minister maintained that the error of fact was an error within jurisdiction. The Minister relied on Minister for Immigration and Citizenship vSZNPG (2010) 115 ALD 303; [2010] FCAFC 51 at [28], where the Full Court of the Federal Court said:
…an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claims is not jurisdictional error, so long as the error, whichever it be, does not mean that the RRT has not considered the applicant’s claim…
The Minister also relied on Sidhu v Minister for Immigration and Border Protection [2017] FCA 889 where Derrington J said at [26]:
The authorities are patently clear that an appellant wishing to disturb a Tribunal’s decision must identify something more than a merely erroneous finding of fact. The proper enquiry for this Court in reviewing the decision of the Tribunal, is whether the Tribunal has failed to perform the statutory task imposed upon it by the relevant provisions of the Act (Minister for Immigration & Border Protection v MZYTS and Another (2013) 230 FCR 431 at 442, [31]).
The Minister submitted that the Authority’s factual error was not so grave as to amount to jurisdictional error. The Authority relied for that proposition on Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1; [2018] HCA 34 at [30], where Kiefel CJ, Gageler and Keane JJ said:
Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of “the possibility of a successful outcome”, or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was “so insignificant that the failure to take it into account could not have materially affected” the decision that was made.
(footnotes omitted)
The Minister also referred to various other facts that the Authority found and submitted that they were sufficient to support the Authority’s conclusions. However, the Minister’s submissions in that regard essentially invited the court to embark upon merits review.
The essential point is that the Authority relied in its reasoning on its erroneous view of the applicant’s claims to conclude that the applicant:
has not provided any information to suggest that any of his family members remaining in Sri Lanka have come to the attention of the Karuna group, either because of their political opinion, links to the LTTE or for the purpose of extortion.
That was one of the planks on which the Authority supported its conclusion in paragraph 20 of its reasons for decision that the applicant would not face a real chance of harm emanating from his brother-in-law’s political involvement. That paragraph in full is as follows:
Even if it could be said with any certainty that S was intimated (sic) by the Karuna Group for his political activity and imputed political opinion during or immediately after the 2012 provincial elections, the applicant has not submitted that he supports S’s political views or has engaged in any political activity within or outside Sri Lanka. Further he has not provided any information to suggest that any of his family members remaining in Sri Lanka have come to the attention of the Karuna Group, either because of their political opinion, links to the LTTE or for the purpose of extortion. Country information indicates that the political situation has improved in recent years, democratic elections have been held on a regular basis in Sri Lanka since independence and the most recent elections in 2015 proceeded relatively smoothly. The Sirisena government is considered a ‘national unity’ government and Tamil candidates won seats in the Parliament in the elections. Noting the change in the political climate, the evidence about the nature of S’s role with the political candidate, and the passage of time, I am not satisfied that S would be pursued or harassed on return. As a consequence I am not satisfied the applicant faces a real chance of harm emanating from S’s political involvement.
(footnote omitted)
In my view, the error of fact in the present case was critical to the Authority’s reasoning process. If the Authority had not made that error, it is possible that the outcome could have been different. Therefore, the error of fact in this case was a jurisdictional error.
Ground 2
The second ground of review in the application is:
The IAA erred by making findings for which there was no evidence.
Particulars
1.At paragraph [29], the IAA concluded that, if return[ed] to Sri Lanka, the applicant would have access to his family in [his home town] “for support to seek health care and eventual employment”. There was no evidence before the Tribunal that supported that conclusion, nor was it an inference that had “some basis” in the materials.
2.There was evidence before the IAA that the applicant had left his mother’s home because she was impoverished following the death of his father and was unable to support him. His mother’s impoverishment and inability to provide support to the applicant was the principal reason he left the family home and lived with his sister. There was also evidence before the Tribunal that the sister with whom he had lived was in Australia and his “big sister” had gone into hiding.
3.This is not a case in which there was simply no evidence to support the conclusion that the applicant would have access to family to seek support, it was a case in which the evidence was to the contrary.
4.Further, the finding was that the applicant’s family would provide a specific form of support, namely, support “to seek health care and eventual employment”. The evidence before the Tribunal was that “Sri Lankan families hid mental illness from society to avoid discrimination”. That evidence was directly contrary to the conclusion reached by the IAA.
5.There was no contrary evidence that the applicant’s family would support him in this way and it cannot be said that it is a “social commonplace” that families will support each other to seek such support in light of the country information that was before the IAA.
6.For these reasons, the IAA made a critical finding without any evidence. The Decision is thereby vitiated by reason of jurisdictional error.
This ground concerns paragraph 29 of the Authority’s reasons for decision, which is as follows:
The applicant has provided a link to an article from The Colombo Telegraph ‘Tackling the Burden of Suicide in Sri Lanka’. The article states that patients are subjected to discrimination, especially by employers, which has only proven to exacerbate the condition. Self-stigmatisation has led to significant delays in seeking aid; patients were often withdrawn opting for secrecy rather than disclos[ing] any emotion. The applicant claims that he has availed himself of mental health services in Australia and on that basis I consider that he would be willing to do so in Sri Lanka. Furthermore, the applicant is not currently in education or work in Australia. He is also estranged from his sister. If the applicant is returned to Sri Lanka he will have access to his family network in [his home town] for support to seek health care and eventual employment.
The Minister submitted, correctly, that the no evidence ground can only succeed if there is no evidence at all which supports the impugned finding.
The applicant maintained that, leaving aside his impoverished mother, he had no family in Sri Lanka. The Minister submitted that there was evidence that the applicant had his mother and four siblings in his home town.[1] In response to the claim that the applicant’s mother was impoverished and unable to assist, the Minister noted the evidence to the effect that the applicant’s mother had assisted him since he arrived in Australia by sending him his birth certificate.
[1] CB6 - 8
It seems to me that the evidence identified by the Minister is sufficient for the finding that the applicant would have access to his family for support upon his return to Sri Lanka. It is also worth noting that the finding was that the applicant would have access to his family for support, and that he would then seek health care, as he had done in Australia. There was not a finding that the applicant’s family would obtain health care for him. Ground 2 is not made out.
Ground 3
The third ground of review in the application is:
The IAA failed to consider an integer of the applicant’s claim and/or failed to give active intellectual consideration to that claim.
Particulars
1.The applicant contended that the combination of employment discrimination coupled with inadequate mental health services would result in economic hardship to the point where he will be not be able to subsist.
2.The reasoning of the IAA was that if the applicant returns home, he will have access … [to] his family network for support to seek health care and eventual employment.
3.An essential part of the applicant’s case was the economic hardship that would result from a lack of employment. The applicant claimed that the economic hardship would be sufficiently severe as to threaten his subsistence.
4.The IAA’s reasoning on this ground did not extend beyond the finding that the applicant would have access to his family network for “support to seek health care and eventual employment”.
5.The IAA made no finding about whether the applicant’s subsistence would be threatened while he sought such health care.
6.If it had done so, the IAA would have been compelled to give active intellectual consideration to the evidence that the applicant’s mother earned a small income following his father’s death and was unable to support the applicant financially. It would have been required to engage with the evidence that the applicant had left the family home because of his mother’s inability to financially support the whole family and to engage with the applicant’s evidence that his “big sister” was in hiding or had left the country and would not, therefore, be in a position to provide him with economic support.
7.There was no basis for any finding that any person in Sri Lanka could provide the applicant with economic support while he obtained mental health care and/or sought employment.
8.The Tribunal failed to consider this integer of the applicant’s claim and failed to give active and intellectual engagement to material before it.
9.Further, the IAA did not engage with the question of whether the applicant would face employment discrimination. It appears to have been assumed that obtaining treatment would remedy the effect of any employment discrimination that exists. If that is so, then there was no evidence before the Tribunal to support that assumption.
10.The Tribunal did not engage with whether there is state protection in Sri Lanka from discrimination in employment. That question was not to be answered solely by reference to whether the discrimination was “systemic and discriminatory”. The Tribunal failed to have regard to … [this] aspect of the applicant’s claim. In the alternative, the Tribunal’s reasons do not show active intellectual engagement with this aspect of the claim.
In relation to this ground, the Authority said:
28.The applicant fears that, if he returns to Sri Lanka, he will struggle to find employment due to the cultural stigmatisation which surrounds mental health. He is also concerned that he will not be able to access adequate health services or mental health support. The applicant submits that both these factors will cause him economic hardship to the extent that he will not be able to subsist.
29.The applicant has provided a link to an article from The Colombo Telegraph ‘Tackling the Burden of Suicide in Sri Lanka’. The article states that patients are subjected to discrimination, especially by employers, which has only proven to exacerbate the condition. Self-stigmatisation has led to significant delays in seeking aid; patients were often withdrawn opting for secrecy rather than disclos[ing] any emotion. The applicant claims that he has availed himself of mental health services in Australia and on that basis I consider that he would be willing to do so in Sri Lanka. Furthermore, the applicant is not currently in education or work in Australia. He is also estranged from his sister. If the applicant is returned to Sri Lanka he will have access to his family network in Kottaikallaru for support to seek health care and eventual employment.
30.I am also not satisfied that the stigma associated with seeking mental health care or the lack of services for mental illness in Sri Lanka is the result systemic and discriminatory conduct on the part of the state. The Colombo Telegraph claims that there has been a greater focus by the Ministry of Health on mental health in Sri Lanka in the years post conflict. The Government has introduced mental health policies and interventions and there has been an increase in mental health facilities since the 2004 tsunami. Currently there are only 58 medical officers and 56 nurses trained in mental health in Sri Lanka - approximately 2 per district. There are shortages in mental health professionals and facilities in Sri Lanka but I am not satisfied that the applicant will be prevented from accessing health services.
31.I am not satisfied that the applicant has a well-founded fear of persecution because of his mental health if he returns to Sri Lanka.
(footnotes omitted)
The Minister submitted that the Authority gave active intellectual consideration to the claim that the applicant would not be able to subsist due to employment discrimination against those with mental health difficulties. The Minister noted that the Authority accepted that there was employment discrimination in Sri Lanka against those with mental health difficulties. However, the Minister submitted, the employment discrimination in Sri Lanka was somewhat ameliorated by the family support the applicant would receive, and, in any event, the harm was not the result of systemic and discriminatory conduct on the part of the state, but due to shortages of mental health professionals.
However, the applicant submitted that the Authority did not consider:
a)whether the applicant’s family could support him financially for the required period of time, whatever that might be;
b)whether the applicant would be able to subsist while he was seeking mental health treatment;
c)whether any mental health treatment the applicant obtained would be sufficient to enable him to work;
d)whether he would be able to find a job, notwithstanding his history of mental ill-health and the acknowledged discrimination against people with a history of mental ill-health; or
e)whether there was state protection in Sri Lanka against employment discrimination in Sri Lanka.
I accept the applicant’s submissions on this ground. The Authority simply did not turn its mind to the matters raised. The Authority skimmed over the issues, with a nebulous assertion of family support without elaborating on what that support might be, or how it might work in practice. This ground is made out.
Ground 4
The fourth ground of review in the application is:
The IAA erred by failing to consider an integer of the applicant’s claim.
Particulars
1.The applicant contended that, given his personal circumstances, even a short period of detention or incarceration would constitute serious harm or degrading treatment.
2.The IAA failed to consider whether even a short period of detention or incarceration might constitute degrading treatment by reason of the applicant’s mental health conditions.
3.The applicant claimed in the post-interview submissions of his representative that his fragile mental state, and the severe psychological deterioration he will suffer on coming into contact with authorities, will render him so vulnerable that the punishment and treatment he will face in prison, even while on remand for a short period, will rise to the level of degrading treatment.
4.The IAA accepted that the applicant may face a brief period of detention. That finding directly engaged the applicant’s claim that the applicant would suffer harm “even while on remand for a short period”.
5.The IAA concluded that the detention of the applicant on his return to Sri Lanka was a process and penalty imposed as a consequence of the applicant breaching the I&EA (and, presumably, therefore not for a Convention reason).
6.The IAA did not address the question of whether the [I&E] Act provisions have a discriminatory impact on persons with a mental illness or fragile mental state.
7.The IAA also did not reach any conclusion on whether the applicant would in fact suffer the harm alleged, nor whether such harm would constitute serious harm in the circumstances of the applicant.
The Authority appears to have accepted that the applicant had made three suicide attempts. The Authority accepted that the applicant may be held in remand on return to Sri Lanka for a short period. The Authority did not consider the applicant’s risks in remand as a person who suffers from serious mental health issues.
The Minister submitted that:
a)in relation to serious harm, the Authority found that the law pursuant to which the applicant might be held on remand was a law of general application which was not applied discriminatorily; and
b)in relation to significant harm, the Authority found that there was no intention to inflict significant harm.
On these bases, the Minister submitted that the Authority was not obliged to consider the impact of the applicant’s mental illness if he were held in remand.
The Minister has identified a complete answer to this ground. It is not made out.
Conclusion
As two of the applicant’s grounds have been made out, the Authority’s decision will be set aside, the matter will be remitted for determination according to law, and the Minister will be required to pay the applicant’s costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 8 February 2019
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