FJP17 v Minister for Immigration - [2018] FCCA 1414

FEDERAL CIRCUIT COURT OF AUSTRALIA

FJP17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1414

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant’s fears found not to be well-founded – whether the Tribunal erred by failing to take into account information on Sri Lankan mental health services in the most recent DFAT country report – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5, 36, 46A, 499

Cases cited:

SZTAL v Minister for Immigration [2017] HCA 34

Applicant:

FJP17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 681 of 2017

Judgment of:

Judge Driver

Hearing date:

30 May 2018

Delivered at:

Sydney, by telephone

Delivered on:

22 June 2018

REPRESENTATION

Counsel for the Applicant:

Ms M Saraceni

Solicitors for the Applicant:

SanLing Chan

Counsel for the Respondents:

Mr P R Macliver

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application as amended on 2 May 2018 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 681 of 2017

FJP17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 16 November 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. The following statement of background facts concerning the applicant’s claims for protection and the decision of the Tribunal on them is derived from submissions filed on behalf of the Minister.
The applicant is a citizen of Sri Lanka born on 11 January 1992 who arrived by boat on 7 February 2010.[1]
[1] Court Book (CB) 59 and 66
The applicant initially applied for a Refugee Status Assessment (RSA) which on 7 May 2010 determined that he was not a refugee. The RSA finding was the subject of three Independent Merits Review decisions (IMRs), the third being on 20 August 2012, and an International Treaties Obligations Assessment (ITOA) on 15 June 2015, and the applicant was found not to be owed protection obligations.[2]
[2] CB 130, 211, 227 and 310
On 13 April 2016 the applicant was advised that the Minister had exercised his power under s.46A(2) of the Migration Act 1958 (Cth) (Migration Act) to allow the applicant to lodge an application for either a Safe Haven Enterprise Visa (SHEV) or a temporary protection subclass 785 visa (protection visa).[3]
[3] CB 130
On 26 October 2016 the applicant lodged a protection visa application. The protection visa application was withdrawn on 2 June 2017 as the applicant lodged an application for a SHEV on 3 June 2017.[4]
[4] CB 1‑41 and 42‑95
The applicant provided a written statement in support of his SHEV application on 7 June 2017, and attended an interview with the delegate on 8 June 2017.[5]
[5] CB 96‑102
On 19 June 2017 the applicant’s representative provided written submissions to the delegate in support of the applicant’s SHEV application.[6]
[6] CB 105‑115
On 23 June 2017 the delegate refused to grant the applicant a SHEV. The applicant lodged an application for a review of the delegate’s decision with the Tribunal on 7 July 2017.[7]
[7] CB 129, 139 and 149‑153

Tribunal’s decision

The Tribunal summarised the applicant’s claims as follows:
a)the applicant would travel to Killinochchi with his older brothers to sell vegetables where he would pass through two checkpoints and LTTE[8] controlled areas. As a result of the applicant’s frequent travels the Sri Lankan security forces suspected the applicant was part of the LTTE;[9]
[8] Liberation Tigers of Tamil Eelam
[9] CB 401-402 [22]
b)as fighting between authorities and the LTTE intensified the applicant and his brothers stopped supplying the Killinochchi market. The applicant started working in Vavuniya market where the army monitored his movements;[10]
c)one day the applicant missed his bus and when he walked towards the checkpoint he was accused of being in the LTTE. The applicant was taken to Joseph Camp where he was interrogated, struck in the face and forced to work outside and cut grass. The applicant was detained for three hours and ultimately released;[11]
d)the applicant fears being killed, tortured, arbitrarily detained and harassed by the Sri Lankan authorities because of his previous experience, Tamil race and his suspected connections to the LTTE;[12]
e)claims considered by the IMRs include that the applicant’s older brother had been detained and interrogated multiple times by the Sri Lankan Army before the applicant had departed Sri Lanka and had implicated him as an LTTE operative during the interrogation, and that Sinhalese neighbours had informed the CID, the Sri Lankan Army and the “Karuna group” that the applicant was no longer in the area and he must be involved with LTTE;[13] and
f)as part of his ITOA, the applicant made further claims:
i)the Sri Lankan authorities will know that the applicant has sought protection in Australia due to the data breach;[14]
ii)there was a traffic incident in Sri Lanka in which the applicant’s cousin was injured. The applicant claims this was a targeted attack because of the applicant’s association with his cousin;[15]
iii)two strangers attended the funeral of the applicant’s father and asked where the applicant was;[16] and
iv)the applicant’s mental health status as a person with depression, anxiety and post-traumatic stress disorder.[17]
[10] [22]
[11] [22]
[12] [22]
[13] CB 403-404 [29]
[14] CB 404 [33]
[15] [33]
[16] [33]
[17] [33]
The Tribunal considered the applicant’s evidence and submissions and made the following findings:
a)the Tribunal accepted that the applicant had been detained at Joseph Camp. However the applicant’s treatment at Joseph Camp is not consistent with the treatment of Tamil males with suspected genuine involvement with the LTTE, and the applicant does not have an actual or imputed LTTE profile;[18]
b)the applicant’s evidence, taken at its highest, does not demonstrate that he faces a chance of persecution for being a young Tamil male with an imputed LTTE profile and as a returnee. Upon the applicant’s return to Sri Lanka he may face routine questioning but is not on any watch list for the purposes of adverse attention;[19]
c)the Tribunal placed little weight on the applicant’s claim about the traffic incident involving his cousin and the strangers that attended his father’s funeral. The applicant did not advance any evidence to demonstrate that these incidents were connected to malevolent intent towards the applicant by the Sri Lankan state;[20]
d)the Tribunal reviewed the country information supplied by the applicant and more recent country information from DFAT.[21] The Tribunal preferred the country information supplied by DFAT which stated that the situation for Tamils in Sri Lanka had improved significantly;[22]
e)the Tribunal found that there was nothing to suggest that either the applicant or his family hold a well-founded fear of persecution for reason of the 2014 data breach;[23]
f)the Tribunal noted that the applicant indicated that he was depressed and anxious at the outset of the hearing. However the applicant was able to articulate and fully participate in the hearing, and the Tribunal concluded that the applicant did not have a well‑founded fear of persecution, and did not face a real risk of significant harm, based on his mental health status;[24]
g)the Tribunal also considered the applicant’s concerns about the treatment by authorities of the Tamil minority in Sri Lanka generally, and the treatment of returnees/failed asylum seekers;[25] and
h)the Tribunal concluded that based on its findings with respect to country information and its earlier findings of fact about the applicant’s protection claims, it further found that the applicant would not face a real chance of persecution, nor a real risk of significant harm, for the essential and significant reason of his membership of the particular social group of returnees/failed asylum seekers of Tamil ethnicity, now or in the reasonably foreseeable future if he was returned to Sri Lanka, for the purposes of ss.36(2)(a) and (aa) of the Migration Act.[26]
[18] CB 411 [72]–[74]
[19] CB 411 [74] – [75]
[20] CB 411-412 [76]–[77]
[21] Department of Foreign Affairs and Trade
[22] CB 413-414 [89]–[97]
[23] CB 412 [78]-[79]
[24] CB 412-413 [82]–[88]
[25] CB 413-414 [89]‑[98]
[26] CB 414-415 [99]‑[101]
The Tribunal therefore concluded that for the reasons it had given, it was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Migration Act, and therefore did not satisfy the criterion in s.36(2), and it affirmed the decision not to grant the applicant a SHEV.[27]
[27] CB 415 [101]‑[104]

The current proceedings

These proceedings began with a show cause application lodged on 6 December 2017. The applicant now relies upon an amended application filed on 2 May 2018. There is one ground in that application as amended:
1. The Tribunal erred by failing to determine the Applicant’s claim for a Safe Haven Enterprise visa according to law.
Particulars
The Tribunal failed to consider DFAT country information that it was required to take into account under Ministerial Direction No. 56 (made under s.499 of the Migration Act 1958 (Cth)), particularly the DFAT Country Information for Sri Lanka dated 24 January 2017, insofar as it relates to mental health services and facilities
In addition to the court book filed on 20 February 2018, I have before me as evidence an affidavit filed on 2 May 2018 made by San Ling Chan which annexes a DFAT country information report dated 24 January 2017 (2017 Sri Lanka Country Information).
Both the applicant and the Minister filed pre-hearing submissions and also made oral submissions through their counsel at the trial of this matter on 30 May 2018.

Consideration

The applicant contends that the Tribunal made a jurisdictional error by failing to determine his claim according to law, namely by not considering the 2017 Sri Lanka Country Information that the applicant submits it was required to take into account under Ministerial Direction No. 56 (made under s.499 of the Migration Act). In particular, the applicant contends that the Tribunal failed to have regard to information in the 2017 Sri Lanka Country Information relating to health services and facilities, including mental health services and facilities.
In accordance with s.499(1) of the Migration Act, the Minister may give written directions to a person or body having functions or powers under the Migration Act if the directions are about the performance of those functions or the exercise of those powers.
Provided that the Minister is empowered to make such a direction,[28] a person or body must comply with such a direction.[29]
[28] See s.499(1)(a) of the Migration Act
[29] Section 499(2A) of the Migration Act
Ministerial Direction No. 56, titled “Consideration of Protection Visa applications”, relevantly requires decision-makers, including the Tribunal, to take account of country information assessments prepared by DFAT, where relevant.
With respect to Sri Lanka, the applicant’s country of origin, the relevant country information is the 2017 Sri Lanka Country Information.
Paragraphs [2.13] and [2.14] of the 2017 Sri Lanka Country Information deal with information about the health services (including mental health services) available and accessible in Sri Lanka, particularly relating to the Northern Province (the area in which the applicant was born and lived).
Particularly, [2.13] of the 2017 Sri Lanka Country Information relevantly states that:
Health outcomes tend to be worse in the north and east, partly as a result of the destruction of infrastructure and diminution of human capital during the conflict.
Particularly, [2.14] of the 2017 Sri Lanka Country Information relevantly states that:
Mental health services are scarce and there is a general lack of institutional capacity to respond to mental health care needs. Mental illness is not widely discussed in Sri Lankan society; this can act as a barrier against individuals seeking proper treatment. Anecdotally, DFAT understands that the prevalence of trauma-related illnesses following the civil conflict is high, especially in the Northern Province.

Matters relevantly considered by the Tribunal

The Tribunal relevantly considered and/or took into account the following matters in its decision-making process:
a)the applicant’s assertion at the start of the Tribunal hearing on 12 September 2017 that he had some concerns that he may be unable to participate in the hearing due to his mental state, including that he was very worried and upset about his mother’s recent poor health, his father’s passing in late 2016 and the lengthy separation from his family;[30]
[30] CB 399 at [5]
b)at the hearing on 12 September 2017, the applicant showed signs of distress and complained of having a lack of clarity of thought, disturbed sleep and a loss of appetite. However, after a brief adjournment, the Tribunal ascertained that the applicant was fit to proceed with the hearing;[31]
[31] CB 399 at [5]-[6]
c)the applicant’s advice that while he had mentioned his distress to his case worker, he had not sought or requested any other form of professional assistance or support for his concerns (as to his mental health status on 12 September 2017) and that the lengthy period of his detention was making his situation more stressful;[32]
[32] CB 399 at [6]
d)the various earlier applications made by the applicant (including the ITOA decision of 15 June 2015) prior to the application currently before the Tribunal for a review of the delegate’s decision refusing to grant the applicant a SHEV made on 23 June 2017;[33]
[33] CB 401 at [20] and CB 401 at [21]
e)the applicant’s mental health status or any medical requirements consequent upon the same were not matters that the Tribunal listed as matters that the applicant’s claim for protection before the delegate had been based upon;[34]
[34] CB 402 at [22]
f)notwithstanding (e) above, the Tribunal referred to the ITOA in which the applicant had made further claims of relevance to the current review by the Tribunal, including his mental health status as a person with depression, anxiety and post-traumatic stress disorder;[35]
[35] CB 404 at [33], fourth bullet point
g)relevantly, the delegate’s decision had:
i)noted that the applicant suffered from mental health issues and medical evidence had been submitted by way of psychological report(s) in support, particularly that he suffered from depression, anxiety and post-traumatic stress disorder;
ii)that there was no evidence before him that the applicant would be denied access to medical treatment in Sri Lanka if required;
iii)this claim had not been raised by the applicant in his SHEV interview or in his written application. “Having considered this claim was not raised again by the applicant as well as the findings of the ITAO”, the delegate considered it unnecessary to make new findings on this claim or to further address it;[36]
iv)made a finding that the applicant was of Tamil ethnicity from the Northern Province of Sri Lanka;[37]
v)made a finding that the applicant would not have a raised profile or be targeted for his mental health issues and further, that he would not be prevented from accessing medical treatment in Sri Lanka, if required;[38]
vi)he had taken into consideration that those of Tamil ethnicity whose place of origin was in the north of Sri Lanka did not have, among other things, the same opportunities as others in Sri Lanka;[39] and
vii)he had taken into consideration the 2017 Sri Lanka Country Information;[40]
h)the applicant informed the Tribunal that its previous recitation of his claims (including his mental health status – see previous sub-paragraph) was accurate, he had nothing further to add to his claims, there was nothing that needed to be changed with the documents in the possession of the Tribunal and he was happy for the Tribunal to proceed on the basis of the documents in its possession (including the decision of the ITOA);[41]
i)in answer to the Tribunal’s question about the availability of treatment options for his mental health status if returned to Sri Lanka, the applicant expressed his view that treatment modalities for people with mental health needs were available generally in Sri Lanka;[42]
j)it took note of the 2017 Sri Lanka Country Information;[43] and
k)it accepted that the 2017 Sri Lanka Country Information had not been revised as at the date of the hearing or decision.[44]
[36] CB 133, 134 at [6]
[37] CB 129-130 under “Part 3: Identity Assessment” and CB 134, first bullet point
[38] CB 134, ninth bullet point
[39] CB 138 under the heading for “Complementary Protection Criteria Assessment” under s.36(2)(aa)
[40] CB 138 at footnote 35 and also see Attachment A at CB140, listing the materials before the decision-maker
[41] CB 404-405 at [35]
[42] CB 405 at [42]
[43] CB 408 at [59]
[44] CB 409 at [62]

Relevant matters not considered by the Tribunal

The applicant submits that the Tribunal failed to take into account the following relevant matters:
a)the applicant, if returned, would return to his family’s ancestral lands in the Northern Province of Sri Lanka;
b)the 2017 Sri Lanka Country Information identified that “Health outcomes tend to be worse in the north and east, partly as a result of the destruction of infrastructure and diminution of human capital during the conflict”[45]; and
c)the 2017 Sri Lanka Country Information identified that “[m]ental health services are scarce…”.[46]
[45] See [2.13] of the 2017 Sri Lanka Country Information
[46] See [2.14] of the 2017 Sri Lanka Country Information

Relevant Tribunal findings

The Tribunal decision in this matter, made by a two member bench, relevantly included findings that:
a)the applicant had arrived in Australia on 7 February 2010 as an unauthorised maritime arrival;[47]
b)the applicant was born in Sri Lanka and is a national of that country. Also, the “receiving country” for the purposes of s.36(2)(aa) of the Migration Act is Sri Lanka;[48]
c)despite being obviously distressed by his personal circumstances and those of his immediate family, the applicant participated fully in the Tribunal’s proceedings and was both articulate and competent in all respects;[49]
d)based on the evidence before it, the applicant did not have a well-founded fear of persecution for the essential and significant reason of his mental health status now or in the reasonably foreseeable future if he were to be returned to Sri Lanka for the purposes of s.36(2)(a) of the Migration Act;[50] and
e)the applicant does not face a real risk of significant harm if he were returned to Sri Lanka now or in the reasonably foreseeable future for the essential and significant reason of his mental health status for the purposes of s.36(2)(aa) of the Migration Act.[51]
[47] CB 398 at [13], [17]
[48] CB 399 at [2] and CB 400 at [14], [15], [17]
[49] CB 413 at [86]
[50] CB 413 at [87] and also CB 415 at [101]
[51] CB 413 at [88] and also CB 415 at [102]
I prefer the Minister’s submissions on this ground.

As noted above, s.499(1) of the Migration Act provides that the Minister may give written directions to a person or body having functions or powers under the Migration Act about the performance of those functions or the exercise of those powers. Further, s.499(2A) provides that a person or body must comply with a direction under subsection (1).
On 21 June 2013 the then Minister issued Direction No. 56 pursuant to s.499 of the Migration Act. The purpose of the Direction was stated to be to guide decision-makers when considering an application for the grant of a protection visa and when reviewing a decision to refuse to grant such a visa.
Relevantly, clause 3 of Direction No. 56 states that:
Where the Department of Foreign Affairs and Trade has prepared a country information assessment expressly for protection status determination purposes, and that assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision. The decision maker is not precluded from considering other relevant information about the country.
It is apparent that the Tribunal did have regards to the country information contained in the 2017 Sri Lanka Country Information.[52]
[52] See the Tribunal’s reasons at [59], [61]-[64] and [90], and various footnote references
Further, clause 3 of Direction No. 56 only requires a decision-maker to take into account such a DFAT report “where relevant, in making their decision” (emphasis added).
Here, the particular information in the 2017 Sri Lanka Country Information which the applicant alleges was not taken into account is information in relation to “health outcomes” and “mental health services”.[53]
[53] See [10(b)] and [10(c)] of the applicant’s outline of submissions dated 3 May 2018 referring to [2.13] and [2.14] of the 2017 Sri Lanka Country Information
However, even if the Tribunal did not take into account the particular health/mental health information contained at [2.13] and [2.14] of the 2017 Sri Lanka Country Information, it was not bound to do so. It could not be said that that information was “relevant” to the making of the Tribunal’s decision.
While it is the case that the applicant previously claimed as part of his ITOA that he feared persecution because he suffered from mental health issues and “that would increase his profile and risk of being targeted if returned to Sri Lanka”,[54] this was not a claim that the applicant maintained in his SHEV application.[55]
[54] See the sixth paragraph of the delegate’s decision record at CB 133
[55] See the applicant’s statement in support of his SHEV application at CB 97-101 and the Tribunal’s reasons at [35] and [82]-[85]
It therefore follows that issues concerning the applicant’s mental health and country information in [2.13] and [2.14] of the 2017 Sri Lanka Country Information were not relevant to the Tribunal’s consideration of whether the applicant was owed protection obligations as a refugee pursuant to s.36(2)(a) of the Migration Act.
Nor was the information in the 2017 Sri Lanka Country Information of any relevance to the Tribunal’s assessment of the applicant’s claims to complementary protection pursuant to s.36(2)(aa) of the Migration Act.
A non-citizen will only suffer significant harm for the purposes of s.36(2)(aa) of the Migration Act if the harm is of a kind set out in s.36(2A), including, under paragraphs (d) and (e), that the non-citizen would be subjected to “cruel or inhuman treatment or punishment” or “degrading treatment or punishment”.
The fact that the 2017 Sri Lanka Country Information identified that health outcomes tend to be worse in the north of Sri Lanka, and that mental health services are scarce, cannot be relevant to whether there is a real risk that the applicant would suffer either cruel or inhuman treatment or punishment, or degrading treatment or punishment, as those terms are defined in s.5(1) of the Migration Act, if he was returned to Sri Lanka.
First, the applicant (who was represented by a migration agent) did not make any claim in his SHEV application that there was a real risk that he would suffer significant harm as defined as a result of his mental condition if he returned to Sri Lanka and the availability of mental health services in the north of Sri Lanka.
Secondly, it could not be said that a lack of mental health services in Sri Lanka generally, or in the north of Sri Lanka, is an act or omission by which severe pain or suffering, or pain or suffering which could reasonably be regarded as cruel or inhuman in nature, is intentionally inflicted. Nor could it be said to be an act or omission that causes, and is intended to cause, extreme humiliation that is unreasonable.
Further, and in any event, the necessary intention for these types of significant harm requires an “actual, subjective, intent”.[56]
[56] See SZTAL v Minister for Immigration [2017] HCA 34 at [26] per Kiefel CJ and Nettle and Gordon JJ
Here, it could not be said that, to the extent that the applicant may have difficulty accessing mental health services in the north of Sri Lanka, in the event of his return to Sri Lanka, any such difficulty involved any actual, subjective, intent on the part of any person.
I find that the Tribunal did not take into account that part of the 2017 Sri Lanka Country Information which dealt with mental health services in Sri Lanka, because the Tribunal did not consider it relevant to do so. I infer from [84][57] of the Tribunal’s reasons that the Tribunal did not consider that the applicant maintained before it his earlier claims to be at risk of harm on account of mental health conditions. This is reinforced at [42][58] where the Tribunal stated:
With respect to the applicant's mental health status, the Tribunal asked the applicant if there was any particular reason why he believed treatment options would not be available to him if he were to be returned to Sri Lanka. The applicant conceded that treatment modalities are available in Sri Lanka for people with mental health needs. However, the applicant stated that he feared that he would be persecuted on return to Sri Lanka on account of his LTTE profile and, for this reason, would be unable to access appropriate mental health care.
[57] CB 412
[58] CB 405
In other words, to the extent that the applicant maintained any claim in relation to his mental health condition, it was a claim based on a fear of discriminatory harm on account of his LTTE profile, not a claim based on differential regional treatment of mental health conditions.
I further note that the delegate considered the claims that had been made as part of the ITOA process[59] but found that it was unnecessary to revisit that consideration because nothing further had been raised by the applicant. I further note that the delegate had available to her the same country report as was available to the Tribunal.
[59] See CB 133, last paragraph
The applicant had been represented by a migration agent for the purposes of his SHEV application and the agent had made comprehensive submissions to the delegate. Further assistance was provided by volunteers at the Tamil Resource Centre. In circumstances where the applicant did not revisit his ITOA mental health claims in his SHEV application and his submissions to the Tribunal, following the delegate’s decision which declined to revisit those claims, and in circumstances where the applicant confirmed at the Tribunal hearing that he had nothing further to say, the Tribunal was entitled to conclude that there was no issue for it to resolve in respect of any issue of the adequacy of mental health services in the north of Sri Lanka.
Further, after the Tribunal hearing the Tribunal wrote to the applicant in respect of a number of issues and provided him with earlier documentation, including the earlier ITOA assessment which dealt with the applicant’s prior mental health claims. The Tribunal sought the applicant’s comment and received a submission on 24 October 2017 prepared by the Tamil Resource Centre.[60] Again, that submission was silent on the question of any revival of the earlier mental health claims.
[60] CB 381-397 and CB 406-407

Conclusion

The applicant has failed to demonstrate that the decision of the Tribunal is affected by jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 22 June 2018