FJT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FedCFamC2G 95

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

FJT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 95  

File number(s):	MLG 2692 of 2017
Judgment of:	JUDGE EGAN
Date of judgment:	17 February 2022
Catchwords:	MIGRATION – application for protection visa – failure by Tribunal to actively intellectually engage with an integer of the applicant’s claims – jurisdictional error established – application granted.
Legislation:	Migration Act 1958 (Cth) ss 65, 36(2)(aa) and 5(1)(b).
Cases cited:	Nabe v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1. AYY17 v Minister for Immigration and Border Protection & Anor (2018) 261 FCR 503.
Division:	Division 2 General Federal Law
Number of paragraphs:	21
Date of last submission/s:	2 February 2022
Date of hearing:	16 February 2022
Solicitor for the Applicant:	Ms S Verma
Counsel for the Applicant:	Mr A Aleksov
Solicitor for the First Respondent:	Mr E Taylor
Second Respondent:	Submitting appearance save as to costs

ORDERS

MLG 2692 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FJT17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	17 FEBRUARY 2022

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 20 January 2022 be granted.

3.A writ of certiorari issue quashing the decision of the Tribunal made on 14 November 2017.

4.A writ of mandamus issue, directed to the Administrative Appeals Tribunal, requiring it to determine, according to law, the Applicant’s application for review of the Second Respondent’s decision, and that the matter be remitted to the Administrative Appeals Tribunal for rehearing.

5.For the purpose of the Administrative Appeals Tribunal again determining the Applicant’s application, that it be constituted by a different member than the member who handed down the decision on 14 November 2017.

6.The First respondent pay the Applicants’ costs of and incidental to the Application for Review, to be agreed or, failing agreement, to be assessed.

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 EGAN

Introduction

1. The applicant is a citizen of Pakistan who arrived in Australia on 6 February 2014 as the holder of a student visa.

2. On 21 May 2014, the applicant applied for a Protection (Class XA) visa.

3. On 8 July 2015 and 21 December 2015, the applicant attended interviews with a delegate of the Minister for Immigration.

4. On 19 January 2016, the delegate refused the applicant’s application for a visa under s. 65 of the Migration Act 1958 (Cth) (the Act).

5. On 27 January 2016, the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision.

6. On 27 June 2017, the applicant attended a hearing before the Tribunal.

   The Applicant’s Claims

7. At [12] of its reasons, the Tribunal summarised the applicant’s claims as follows:

   •“The applicant claims to fear persecution in Pakistan from both the Taliban and the Pakistan Army. His key claims as summarised are:

   •He lived in the family home in [place omitted] village, Swat, Khyber Pakhtunkhwa province.

   •In late 2008 the applicant's brother [name omitted] who was temporarily staying in Swat, was abducted by the Taliban as they wanted him to provide medical treatment to talibs. Just as he was abducted, the army fired on the talibs, and the brother escaped in the commotion and returned to Karachi where he had studied nursing. The next morning the Taliban beat the applicant and father and threatened to take the applicant unless the brother returned.

   •The Taliban became enemies of the family and later took over an uncle's home in the village. The applicant and his father confronted the Taliban about this.

   •In April 2009 the Taliban abducted and mistreated the applicant and asked him to fight but when he refused they allowed him to perform domestic services in their compounds. Many times he tried to escape and was beaten.

   •On 28 July 2009 during Operation Rah-e-Rast the Army captured the Taliban compound and arrested talibs and the applicant. The army tortured him and he declared his innocence. He told them about a Taliban compound which the army attacked and killed Taliban Commander Mustafa. He informed on other talibs and pointed out their houses. He was released in August 2009 after a Village Defence Committee leader and Awami National Party (ANP)members intervened on his behalf.

   •In early December 2011 the army arrested and questioned the applicant for 17 days until the father got him released.

   •A friend of his had been killed by the army.

   •In early May 2012 he joined a village rally that was protesting against the army's cruel treatment of innocent people. The army arrested many protesters.

   •The applicant was sent to Karachi to an uncle's house for safety. But he returned to his village because in Karachi on 22 June 2012 a talib (whose brother he had informed on) from his home area saw him in the market.

   •After his return to the village, from 16 to 29 January 2013 the army arrested, detained, questioned and tortured him. He was released on condition he report every fortnight. The army kept questioning him in 2013.

   •After release, he lived at home and studied in nearby Mingora. Some nights he did night watch duty. ·

   •He departed Pakistan from Islamabad airport on 5 February 2014 and breached the army's reporting conditions when he departed Pakistan.

   •After he came to Australia the army beat the father and demanded the applicant return to Pakistan”.

8. At [13] of its reasons, the Tribunal identified the applicant’s claims as to his having a well-founded fear of returning to Pakistan as follows:

   “[13]The applicant claims he has a well-founded fear of returning to Pakistan arising from his:

   •Religion: He fears the Taliban, Sunni extremist groups and agents will harm him because he is a liberal, Sunni Muslim.

   •Political opinion: He fears the Taliban, Sunni extremist groups and agents will harm him because of his political opinion (actual or imputed) as an anti-Taliban and anti­ Sunni extremist man who had:

   •been an actual and perceived informer to the Pakistan army

   •been a member of the Village Defence Committee

   •a profile as a student studying and seeking asylum in a Western country

   •Political opinion: He fears the Pakistan authorities will harm him because of his political opinion (actual or imputed} against the Pakistan authorities, on account of being discovered by the army in Taliban custody and the army's subsequent mistreatment of him.

   •Membership of a particular social group, of: young Pashtun Sunni Muslim males from Swat; students in Khyber Pakhtunkhwa province; returnees from a Western country; failed asylum seekers imputed with a Western lifestyle.”

9. It is of note that though the Tribunal, at [14] of its reasons, recorded the evidence before it as including a psychology report dated 3 August 2015, [1] the applicant’s submissions dated 5 August 2015, [2] and the applicant’s submissions of 11 July 2017, the Tribunal failed to identify, in [12] and [13] of its reasons, the applicant’s particular claims about the mental health impact upon him of returning to Pakistan, as succinctly submitted in such documents [3]. The Court infers that by failing to so refer to such mental health submissions when identifying what the relevant claims of the applicant were, the Tribunal did not consider them to be of significance. Why else would the Tribunal leave them out of those paragraphs which purportedly identified the applicant’s claims?

   [1]           Exhibit 1 – Court Book (CB)  – pp. 112-115.

   [2]           CB pp. 60–111.

   [3]           See references at CB pp. 78-79, 113-115, 227-228 and 235-236.

   Consideration of the Ground of Review

10. By an Amended Application filed on 20 January 2022, the one Ground of review relied upon was as follows:

    “1.The Tribunal failed to assess an integer of the applicant’s claims relating to his mental health.”

11. It was asserted on behalf of the applicant that the submissions which went to the applicant’s claim that he would suffer an exacerbation of an existing psychological post-traumatic stress disorder constituted a valid claim for complimentary protection under s.36(2)(aa) of the Act. Under s.5(1)(b) of the Act, the term “cruel or inhuman treatment or punishment” was defined as follows:

    (a)“severe pain or suffering, whether physical or mental, is intentionally infliction on a person; or

    (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel of inhuman in nature; but does not include an act or omission:

    (c)that is not inconsistent with Article 7 of the Covenant; or

    (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the covenant.”

12. It was conceded on behalf of the first respondent that if the Court was of the view that the Tribunal had not intellectually engaged in a meaningful way with the applicant’s mental health claims in its reasons, then it was open for the Court to grant the Amended Application for Review.

13. The Tribunal at [73] and [83] of its reasons did address the question of the applicant’s mental health, finding as follows:

    “[73]The applicant and his representatives submit that he will be unable to get mental health treatment in Pakistan and what there is, is expensive. At the hearing I discussed the January 2016 DFAT report that stated health care in Pakistan is generally free and accessible to all Pakistanis, although the health care system suffers from a lack of funding and limited capacity. The September 2017 DFAT report does not change this broad assessment. I acknowledge that the mental health sector in Pakistan is under-developed and under pressure, may be expensive and takes time to access, and almost all of it located in the cities. But as I pointed out to him, country information⁹ shows medical and mental health treatment and appropriate medicines are available in Pakistan and ostensibly would be accessible by him. Indeed, I also find that the family operate a pharmacy and so there is local access to prescription drugs. There is no evidence before the Tribunal that suggests he would be denied treatment or that treatment would be withheld from him for any reason. In sum, I find that medical and mental health treatment and appropriate medicine is available in his home province now and in the reasonably foreseeable future, if he chooses to seek such care. I do not accept that the scarce psychological support and counselling in his home area and province, limited by location and in size, amounts to serious harm. Also, as I do not accept he will feel in fear of his life for the reasons he claims when he is living at home, I do not accept the mental health treatment he did access would be ineffective or hindered for that reason.

    
    
    

    …

    [83]I accept the applicant may face dislocation when he returns to Pakistan, as        he has not been there since February 2014. But in light of the foregoing I consider the applicant will be able to return to his family and family home without difficulties and make his way in life from the time he arrives. I accept the applicant has psychological problems and may well continue to have this condition in Pakistan. Whilst I acknowledge that in Australia he manages to get a good level of support, I do not accept the submissions that on his return to Pakistan he will be unable to access support or that support would be withheld or denied him. In my foregoing discussions I acknowledged that the mental health sector in Pakistan is under-developed and under pressure, may be expensive and takes time to access, and almost all of it located in the cities. But as I pointed out to the applicant, country information shows medical and mental health treatment and appropriate medicines are available in Pakistan and ostensibly would be accessible by him. There is no material before the Tribunal that suggests he would be denied treatment or that treatment would be withheld from him for any reason. In sum, I find that medical and mental health treatment and appropriate medicine is available in his home province now and in the reasonably foreseeable future, if he chooses to seek such care. I do not accept that the scarce psychological support and counselling in his home area and province, limited by location and in size, amounts to significant harm.”

14. It was submitted on behalf of the applicant that the treatment of the applicant’s claims by the Tribunal was perfunctory, and that the finding of the Tribunal that mental health treatment for the applicant was “available” ignored reality. It was further submitted that the Tribunal had failed to address the practicability or otherwise of the applicant actually being able to access such treatment, particularly in circumstances where the Tribunal acknowledged that psychological support and counselling in the applicant’s home area was scarce, and limited by location and in size. [4]

    [4]           [73] of the reasons of the Tribunal.

15. The Court does not accept the submissions made on behalf of the first respondent to the effect that the Tribunal’s reasons reflected a thorough engagement with the applicant’s claims. The Tribunal failed to consider the practical difficulties which might be faced by the applicant in receiving even the most basic of mental health treatment. It gave lip service to the contents of the psychology report of Mr Evans. The Tribunal failed to address the question as to whether it was reasonably practicable for the applicant to be returned to Pakistan in such circumstances.

16. The Court finds that the Tribunal failed to actively intellectually engage on a question which was central to the applicant’s claim for complementary protection. It did not relevantly address a clearly articulated claim made to it.

17. The Tribunal is required to consider claims that arise squarely on the material before it. As was said by Black CJ, French and Selway JJ in Nabe v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 at [58], [61] and [68]:

    [58]The review process is inquisitorial rather than adversarial.  The Tribunal is required to deal with the case raised by the material or evidence before it – Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated – Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293 – 294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant – Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it – SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs(2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.

    …

    [61] In STYB v Minister for Immigration & Multicultural & Indigenous Affairs[2004] FCA 705, Selway J questioned whether the comments made by Merkel J in Paramananthan accurately reflected the position. He said (at [15]):

    ‘Whether or not those comments were correct when they were made, they may not now accurately reflect the jurisdiction of this Court.  That jurisdiction is limited to the identification of jurisdictional errors.  The question in this context is whether the Tribunal has made a jurisdictional error in not considering a claim that has not been made.  In my view it does not make a jurisdictional error in such circumstances, providing, of course, that it correctly identifies the legal issues relevant to the claim that is made: contrast the majority and minority reasons in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs(2003) 203 ALR 112.’

    We are of the view that the observations by Merkel J in Paramananthan, by the Full Courts in Sellamuthu and Sarrazola (No 2) and by Cooper J in SDAQ are consistent with the proposition that the Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it.  The Tribunal’s obligation is not limited to procedural fairness in responding to expressly articulated claims but, as is apparent from Dranichnikov, extends to reviewing the delegate’s decision on the basis of all the materials before it.  

    …

    [68] Although such a claim might have been seen as arising on the material before the Tribunal it did not represent, in any way, ‘a substantial clearly articulated argument relying upon established facts’ in the sense in which that term was used in Dranichnikov.  A judgment that the Tribunal has failed to consider a claim not expressly advanced is, as already indicated in these reasons, not lightly to be made.  The claim must emerge clearly from the materials before the Tribunal.  In our opinion the judgment that the Tribunal, by reason of the error it made about the appellant’s involvement with PLOTE, failed to consider an unexpressed claim of want of effective State protection against persecution by PLOTE, is not open having regard to the thresholds required for such a judgment by the authorities to which we have referred.  This case does demonstrate an unfortunate factual error which, as Tamberlin J found, contributed to the Tribunal’s adverse finding as to credibility and could have affected the outcome of the review by the Tribunal.  It did not, however, constitute jurisdictional error in the sense earlier discussed.  It was, as the members of the Full Court found on the first occasion, an error of fact within jurisdiction”

18. A Tribunal is required to consider clearly articulated argument and claims which clearly emerged from the evidence. As was said by Collier, McKerracher and Banks-Smith JJ in AYY17 v Minister for Immigration and Border Protection & Anor (2018) 261 FCR 503 at [18]:

    “[18] It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act (as discussed, for example, in BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:

    •The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 (Htun) per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.

    •The Tribunal is only required to consider such claims where they are either:

    a.   the subject of substantial clearly articulated argument, relying on established facts; or

    b.   clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE) per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 (AWT15) per Barker J (at [67]).

    •These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:

    … A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).

    (Emphasis added.)

    As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):

    a)   such a finding is not to be made lightly (NABE at [68]);

    b)   the fact that a claim might be said to arise from materials is not enough (NABE at [68]);

    c)   to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 (SZUTM) per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:

    [37] While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.

    [38]Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.

    d)while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR77 per Flick J (at [21]); and

    e)understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.”

1. The Tribunal’s failure to properly address the issues before it was an error which was jurisdictional in nature.

2. The Amended Application for Review is granted. It is ordered that the decision of the Tribunal handed down on 14 November 2017 be quashed, and that the matter be remitted to a differently constituted Tribunal for rehearing.

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

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       17 February 2022