GBN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 153
•27 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
GBN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 153
File number(s): MLG 3539 of 2018 Judgment of: JUDGE CHAMPION Date of judgment: 27 February 2024 Catchwords: MIGRATION – Judicial review – Protection visas – Whether the Tribunal failed to consider claims which squarely arose on the material – Where Second Applicant diagnosed with post-traumatic stress disorder (PTSD) – Where there was Country Information as to the scarcity of mental health services in Sri Lanka – Where the link between the PTSD and risk of serious harm because of scarcity of mental health services did not squarely arise on the material in absence of evidence as to the nature of the PTSD and the Second Applicant’s treatment needs –Where First Applicant’s claim as to domestic violence considered and not accepted – Application dismissed Legislation: Migration Act 1958 (Cth) ss. 5AAA, 5J, 36 Cases cited:
BYV18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1068
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496
CAF17 v Minister for Home Affairs [2019] FCA 2203
Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 73 ALD 321, [2003] HCA 26
Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136, [2001] FCA 1802
Minister For Immigration and Border Protection v WZAPN (2015) 254 CLR 610, [2015] HCA 22
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1, [2004] FCAFC 263
NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695
Plaintiff M1/2021 v Minister for Home Affairs (2022) 178 ALD 304; [2022] HCA 17
Division: Division 2 General Federal Law Number of paragraphs: 72 Date of last submission/s: 7 February 2024 Date of hearing: 7 February 2024 Place: Melbourne Counsel for the Applicants: Mr S Sharify Solicitor for the Applicants: Sabelberg Morcos Lawyers Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 3539 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GBN18
First Applicant
GBO18
Second Applicant
GBP18 (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
27 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to the “Minister for Immigration, Citizenship and Multicultural Affairs.”
2.The application is dismissed.
3.The First and Second Applicants pay the First Respondent’s costs fixed in the amount of $8,371.30.
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 CHAMPION:
INTRODUCTION
The Applicants seek protection visas. The First Applicant (GBN18) is a female citizen of Malaysia of Tamil ethnicity (CB 484). The Second Applicant (GBO18) is a citizen of Sri Lanka and the husband of the First Applicant (CB484, [14]). The Third Applicant (GBP18) and the Fourth Applicant (GBQ18) are the First Applicant’s children (CB301) and are citizens of Malaysia. The Third and Fourth Applicants did not advance any independent claims for protection.
There are two grounds of review.
There was material before the Tribunal that the Second Applicant had been diagnosed with post-traumatic stress disorder (PTSD). There was Country Information before the Tribunal that there was a scarcity of mental health services available in Sri Lanka. The issue for decision under Ground 1 is whether the Tribunal failed to consider an integer of the Second Applicant’s claim which squarely arose on the materials that he would suffer serious harm if he returned to Sri Lanka because of his PTSD and the scarcity of mental health services in Sri Lanka. Even though the Tribunal did not refer to the country information as to the scarcity of mental health services in Sri Lanka, the very limited nature of the material before the Tribunal as to the Second Applicant’s PTSD and the absence of material that there was a real risk of “serious harm” to him if he could not access treatment for PTSD meant that the Tribunal did not fail to consider a claim which squarely arose on the material. Alternatively expressed, any error of the Tribunal and not referring to the country information as to the scarcity of mental health services in Sri Lanka was not material. Ground 1 has not been made out.
Ground 2 is that the Tribunal failed to consider the First Applicant’s claim that she would suffer domestic violence if she returned to Malaysia. The Tribunal considered the First Applicant’s claim as to domestic violence but did not accept it as one of a series of claims it rejected in the course of its overarching adverse findings as to the Applicants’ credibility. Ground 2 has not been made out.
The application will be dismissed. My reasons follow.
Procedural Matters
I admitted a court book into evidence: Ex. CE1 (CB1–522).
I treat the Affidavit of Ms Emma Nguyen made 23 January 2024 as read. The Applicant tendered the DFAT Country Information Report Sri Lanka (23 May 2018) annexed to Ms Nguyen’s affidavit: Ex A1.
The Tribunal’s decision
The Tribunal published a decision in which it traversed in some detail the Applicants’ various claims: CB491–522. Because of the circumscribed focus of the judicial review grounds, it is not necessary to traverse all of the Applicants’ claims or the detail of the Tribunal’s decision in this judgment.
Tribunal’s finding that the Applicants were not witnesses of truth
Nonetheless, at the outset, it should be noted that the Tribunal rejected the Applicants’ accounts of their experiences in Malaysia and Sri Lanka almost in their totality.
The Tribunal recorded strongly worded adverse assessments as to the Applicants’ credibility.
The Tribunal expressed itself as follows: “Key aspects of A1’s and A2’s claims are thus lacking in credibility. … [their] credibility is so affected that the lack of believability permeates throughout other claims they make” (CB513, [241]).
Further, the Tribunal held at [253] (CB521):
The Tribunal finds that A1 and A2 are not witnesses of truth and finds there is no real chance that the applicants will suffer serious harm, or harm of any kind if returned to Malaysia and Sri Lanka, and for these reasons the Tribunal finds that A1, A2, A3, and A4 do not have a well-founded fear of persecution. The Tribunal notes that A3 and A4 are minor children who did not give evidence and have not expressed their claims independently in this matter and hearing.
[Emphasis added]
In their judicial review application, the Applicants did not challenge the strong adverse credibility findings against them or otherwise contend that the Tribunal’s strong adverse credibility findings against them were vitiated by jurisdictional error: Cf, i.e., CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496, [38]–[39].
JUDICIAL REVIEW APPLICATION
Ground 1: Did the Tribunal fail to consider an integer of the Second Applicant’s claim which clearly arose from the material that he would suffer serious harm because of his PTSD and a lack of mental health services in Sri Lanka?
Ground 1 is that the Tribunal failed to consider an integer of the Second Applicant’s claim “which clearly arose from the material that he would suffer serious harm by reason of a lack of mental health services in Sri Lanka”. The particulars are as follows:
a. The Second Applicant claimed that he suffered from PTSD.
b. There was country information before the Tribunal which stated that mental health services were seriously deficient in Sri Lanka.
c. The Tribunal concluded there was no connection between the PTSD and serious harm.
Legal principles
The relevant legal principles were not in dispute. The dispute was confined to the application of those relevant principles to the facts of this case.
A failure to make a finding on “a substantial, clearly articulated argument relying upon established facts” can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 73 ALD 321, [2003] HCA 26, [24] (Gummow and Callinan JJ); [95] (Hayne J).
The Tribunal’s statutory duty on review also extends beyond an obligation to consider substantial, clearly articulated arguments to encompass an obligation to consider an unarticulated claim raised “squarely” on the material. For a claim not “expressly advanced” to attract the review obligation, the claim must be “apparent on the face of the material before the tribunal.” It may be contrasted with a claim which “depends for its exposure on constructive or creative activity by the Tribunal”: NABE v Minister for Immigration and Multicultural And Indigenous Affairs (No. 2) (2004) 144 FCR 1; [2004] FCAFC 263, [58]. The Tribunal need not consider a claim the exposure of which depends on the Tribunal’s “creative activity.”
In NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 Allsop J, having referred to Dranichnikov and to NABE, said as follows at [15]:
A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.
Allsop J’s analysis provides a useful demarcation line: the Tribunal must consider a claim that arises “tolerably clearly from the material itself” but, on the other side of the demarcation line, need not “undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been.” Allsop J also noted a distinction between a claim which arose “tolerably clearly from the material” and “an argument reflecting careful thought having been given, after-the-fact, to the record”: NAVK, [16]. Further, Greenwood J has observed that whether an applicant has sufficiently raised the relevant issue is a matter of substance not of form and is “not to be treated as an exercise in 19th century pleading”: CAF17 v Minister for Home Affairs [2019] FCA 2203, [57].
In Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136, [2001] FCA 1802, Allsop J (Spender and Merkel JJ agreeing) held at [42] that the review function of a tribunal is to consider all claims made by an applicant and all its essential integers, which “is to be distinguished from errant fact finding” which in the context I take to refer to the fact that the metes and bounds of the inquisitorial process are still framed by the case the applicant advances. The Tribunal’s fact-finding obligation is not at large.
Further, s. 5AAA(2) of the Migration Act 1958 (Cth) provides that it is the responsibility of the visa applicant to specify all particulars of his or her claim and to provide sufficient evidence to establish the claim.
The material before the Tribunal as to the Second Applicant’s PTSD, the scarcity of mental health services in Sri Lanka and the risk of “serious harm”
There was no material as to the Second Applicant’s PTSD before the delegate
In order to form a view as to whether the Tribunal failed to consider an integer of the Second Applicant’s claim which squarely arose on the material, it is necessary to identify the material before the Tribunal as to the issues of the Second Applicant’s PTSD, the scarcity of mental health services in Sri Lanka and the risk of “serious harm.”
Before the delegate’s decision on 31 December 2015, and particularly in submissions he made to the delegate, the Second Applicant made no mention of PTSD or any other condition affecting his mental health: CB210–218. As a result, the delegate’s decision did not refer to PTSD: see CB317–319. As a further result, the delegate also had no occasion to consider the scarcity of mental health services in Sri Lanka.
The psychologist’s letter – 1 December 2015
Subsequently, on 22 September 2017, whilst their review application was pending in the Tribunal, the Applicants’ then lawyers wrote in a submission in support of the review application (CB372):
The applicants’ claims are based on the following:
[…]
i.Applicant two’s current mental health.
The lawyers attached to the submission what was described as a “Referral letter to treating Psychologist in relation to applicant two’s PTSD and other mental conditions” (CB372). The actual attachment to the submissions was a letter of a clinical psychologist dated 1 December 2015 addressed to the referring general practitioner in which the clinical psychologist wrote as follows (CB370):
[The Second Applicant] has been suffering from post-traumatic stress disorder in relation to his experience in the Army in an overseas country. He had to flee his country and had a great deal of difficulties in his new country where he met his wife. They produced two children. Now, that the family settled in Australia the children's in to be doing well.
[The Second Applicant] has also reported severe sleep difficulties where he only manages to get some three hours sleep. He has been troubled by images and memories of horrible experiences he has had to endure while in the Army overseas.
[The Second Applicant] has engaged very well for the purposes of assessment and treatment and has reported large improvements in his condition. However, more treatment is recommended. Would you kindly review [The Second Applicant] and consider extending his treatment further?
PROVISIONAL MULTIAXIAL DIAGNOSIS
AXIS 1 (Clinical Disorders and conditions that need Clinical attention):
PTSD, depression, insomnia
[…]
[Emphasis added]
The Applicants’ lawyers’ submission to the Tribunal
The first day of the Tribunal hearing occurred on 25 October 2017. The Applicants’ lawyers made a further submission on 24 October 2017 and the Applicants attested to its accuracy (CB405). The Applicants submitted (CB400) with apparent reference to the psychologist’s letter dated 1 December 2015:
In a psych report from … [a psychologist] the applicant is diagnosed with post-traumatic stress disorder and suffers sleeping difficulties due to rumination of horrible experiences endured during his service in the army. The applicant is also in need of surgery due to an injury inflicted by torture whilst serving in the military. To summarise, the report entails that the applicant's condition has improved but will no doubt worsen on prospect of being returned to either Sri Lanka or Malaysia.
[Emphasis added]
I note the lawyers’ prognostication that the Second Applicant’s condition would “no doubt worsen on the prospect of being returned to Sri Lanka or Malaysia” adds a gloss to the psychologist’s opinion dated 1 December 2015. The psychologist did not express an opinion on the effect on the Second Applicant’s PTSD should he return to Malaysia or Sri Lanka.
Country Information
The Tribunal said that it had “examined [the]… most recent country information reports from DFAT on … Sri Lanka 23 May 2018”(CB510, [212]). It held that (CB510, [216]):
The problems in A1’s and A2’s evidence and contentions affect the credibility of the applicants to such a degree that the Tribunal – whilst still giving regard to the issue and discrimination facing the applicants in both Malaysia and Sri Lanka – finds that the country information does not add to the persuasiveness of the applicants’ case.
Accordingly, the Tribunal’s reference to the Country Information was at a high level of generality. The Tribunal did not specifically refer in its reasons to the information in the DFAT Country Report on Sri Lanka (23 May 2018) (Ex. A1) as to the scarcity of mental health services in Sri Lanka at 2.16 which was as follows:
Mental health services are scarce and institutional capacity to respond to mental health needs is weak. Mental illness is not widely discussed in Sri Lankan society and the stigma attached to those who seek treatment discourages others from doing so. Anecdotal evidence suggests a high incidence of trauma-related illnesses following the conflict, especially in the Northern and Eastern Provinces. Collective trauma, a lack of mental health support and high unemployment, especially among the young, have contributed to an increase in alcohol and drug abuse, suicide, domestic and societal violence in recent years.
[Emphasis added]
The Tribunal’s decision
The Tribunal’s decision refers to the Second Applicant’s claims related to his mental health as follows (CB498, [110]; CB 506, [195]):
110. He is also very depressed. Every Wednesday he goes to see the doctor. He needs peace of mind. He needs protection.
[…]
195. A2 also claims that he has experienced post-traumatic stress disorder (PTSD) and had been treated for this condition two months before the hearing.
As noted, however, the only expert evidence which underpinned the Second Applicant’s statements at the Tribunal was set out in the psychologist’s letter dated 1 December 2015 (CB370).
The Tribunal’s finding as to this issue was as follows (CB521-522, [251]; [257]):
251.Whilst the Tribunal gives regard to a referral letter to a treating psychologist in relation to PTSD and other mental conditions regarding A2, we do not find that there is a linkage shown between this and suffering serious harm, or harm of any kind if returned to another country including his home country…
[…]
257. The Tribunal does not accept the applicants’ claims that they have suffered, or are still going through, emotional and psychological effects of all that A2 has been through in the last years, or that they are traumatised over his situation, arising out of any connection with applicants’ claims. The Tribunal gives regard to a referral letter to a treating psychologist in relation to PTSD and other mental conditions regarding A2, but does not find that there is a linkage between this and a real risk that any of the applicants will suffer significant harm, or harm of any kind if they return to Malaysia or Sri Lanka.
[Emphasis added]
The Applicants’ submissions
The Applicants did not submit that the claim that the Second Applicant was at risk of serious harm because of his PTSD and the scarcity of mental health services in Sri Lanka was the subject of a substantial, clearly articulated argument: see, T2/16-29; Cf. Dranichnikov. The Applicants submitted that this was a case in which the Tribunal nonetheless had an obligation to consider the claim because it “squarely” arose on the material: NABE, [58].
The Applicants submitted that the lack of “linkage” between the Second Applicant’s PTSD and suffering “serious harm” (CB521, [251]) was a consequence of “the Tribunal failing to consider the lack of mental health services in Sri Lanka as an integer of the Second Applicant’s claim” (AS, [9]).
Analysis
The Tribunal held its hearing in October and November 2017. As noted, the expert material as to the Second Applicant’s PTSD was limited to a clinical psychologist’s letter dated 1 December 2015. The lawyers had provided the psychologist’s letter to the Tribunal on 22 September 2017 and put submissions as to its legal significance on 24 October 2017.
The Tribunal twice held (CB5212–522, [251]; [257]) that “we do not find that there is a linkage shown between this and suffering serious harm” [emphasis added]. The Tribunal did not expressly refer to the country information as to the scarcity of mental health services in Sri Lanka.
Having said that, in fairness to the Tribunal, it did expressly consider the mental health claim to the extent that it referred to the psychologist letter and further observed there was no “linkage” between the Second Applicant’s PTSD and serious harm.
Ground 1 may be considered in at least two ways.
Any failure to consider the scarcity of mental health services in Sri Lanka in isolation was not material
The first way in which Ground 1 may be analysed is to acknowledge the accuracy of the Applicants’ observation that the Tribunal did not refer in its reasons to the country information as to the scarcity of mental health services in Sri Lanka.
In my view, the country information had the character of evidence rather than an integer of the claim. Nonetheless, in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 Robertson J noted that there may be no clear distinction between claims and evidence. Robertson J said if there was an issue as to a failure to deal with evidence “the fundamental question must be the importance of the material to the exercise of the Tribunal’s function.” While a failure to deal with some “insubstantial or inconsequential” evidence may not establish jurisdictional error, in contrast, a failure to deal with substantial and consequential evidence may establish jurisdictional error.
The Tribunal’s failure to consider the evidence of a scarcity of mental health services in isolation was not material. The country information as to a scarcity of mental health services only assumed the character of substantial and consequential evidence by reference to other factors. Its substantiality depended upon other facts personal to the Second Applicant: specifically, the nature and extent of the Second Applicant’s PTSD, his treatment needs and the consequences for him of not being able to access treatment. In particular, its substantiality depended on whether the unavailability of treatment for his PTSD meant that there was a real chance he would suffer serious harm if he returned to Sri Lanka where he could not access treatment.
Accordingly, whether there was a jurisdictional error because of a failure to consider a claim which squarely arose on the material requires a consideration of whether the Tribunal’s failure to engage with the evidence of a scarcity of mental health services in Sri Lanka was material in the context of other factors personal to the Second Applicant.
Was the Tribunal’s failure to consider the country information as to the scarcity of mental health services in the context of other factors a material error?
The second way (and more meaningful way) in which to analyse Ground 1 is to consider the Tribunal’s failure to consider the scarcity of mental health services in the broader context of the other material before the Tribunal as to the Second Applicant’s PTSD. For the reasons set out below, because (as the Tribunal did expressly consider) the Second Applicant did not put material before the Tribunal as to the “linkage” between the inter-linked facts and issues of the Second Applicant’s PTSD diagnosis — his need for treatment as to it and his risk of “serious harm” if he could not access treatment for PTSD — the Tribunal did not make any jurisdictional error as to how it considered the claim exposed on the material.
The Applicant did not put material before the Tribunal that there was a real chance of “serious harm” for him because of his PTSD and the scarcity of mental health services in Sri Lanka. The concept of “serious harm” within the meaning of s. 5J(4)(b) of the Act requires a qualitative judgment, involving the assessment of matters of fact and degree: Minister For Immigration and Border Protection v WZAPN (2015) 254 CLR 610, [2015] HCA 22 [41]; [51].
Even though there was material before the Tribunal of a PTSD diagnosis and a scarcity of mental health services in Sri Lanka, there was an informational gap in the material as to whether those two matters — without material as to the connection between them — established a risk of “serious harm.” An assessment of the risk of serious harm would depend on a qualitative judgement: issues of “fact and degree” as to the gravity of the Second Applicant’s PTSD and the consequences for him if he could not access treatment as to it. It was not obvious that because the Second Applicant had in the past been diagnosed with PTSD and there was a scarcity of mental health services in Sri Lanka, that, without more, an integer of his claim was that he was at risk of “serious harm” if he returned to Sri Lanka. The informational gap was as to any material as to whether if his PTSD went untreated because of the lack of mental health services that would create a real risk of “serious harm” to him. It remained for the applicant to specify the particulars of his claim: s. 5AAA(2).
The Tribunal discharged its statutory duty to consider the material as to the PTSD as far as it went: namely, the letter of the clinical psychologist dated 1 December 2015. The psychologist’s letter set out that as of 1 December 2015 the Applicant had been diagnosed with “PTSD, depression, insomnia” had suffered “sleep disturbances” and further treatment was recommended but also said that there had been “large improvements” in his condition. The psychologist wrote his letter nearly 2 years before the Tribunal hearing and it was not updated. As a result, there was no expert psychological material before the Tribunal as to the current nature and extent of the Second Applicant’s PTSD, as to whether the Second Applicant required ongoing treatment for his PTSD, the potential risk or adverse consequences for him if his PTSD was not treated and whether the PTSD had improved or had worsened in the nearly 2 years which had elapsed since December 2015. The Second Applicant’s statements to the Tribunal that he had been treated for PTSD two months previously (CB506, [195]) did not shed any further light on whether there was a risk of serious harm if he returned to Sri Lanka where he could not access treatment.
The Tribunal did not commit a jurisdictional error in failing to consider whether the fact of PTSD and a scarcity of mental health services in Sri Lanka — without more — meant that there was a risk of serious harm to the Second Applicant if he returned to Sri Lanka.
The Second Applicant might have made a claim (but did not) that the combination of his PTSD diagnosis, the nature and extent of his PTSD, his treatment needs for his PTSD and the consequences of not being treated for his PTSD because of the scarcity of mental health services in Sri Lanka meant that he was at risk of serious harm if he returned to Sri Lanka. The difficulty was that the Second Applicant did not put material before the Tribunal as to several of those key elements that comprise this analysis: the nature and extent of his PTSD in 2017, his treatment needs for it and the consequences for him of not being treated for his PTSD.
PTSD and an absence of available mental health services in Sri Lanka were serious matters. Nonetheless, there was an informational gap as to what an absence of treatment as to PTSD meant for the Second Applicant. It was not for the Tribunal to fill that informational gap. The Tribunal correctly observed, to make good the claim it required the “linkage” material as to the nature and extent of the Second Applicant’s PTSD, his treatment needs for his PTSD and the consequences of not being able to access that PTSD treatment, particularly as to whether he was at risk of serious harm if he did not access such treatment because it was unavailable in Sri Lanka.
For a claim to arise squarely on the material, it was for the Applicant to put this material as to serious harm before the Tribunal. The Tribunal was not required to engage in “creative activity” (NABE, [58]) to identify further potential claims and then to analyse them.
BYV18 v Minister for immigration, Citizenship and Multicultural Affairs
This case is to be distinguished from BYV18 v Minister for immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1068. In BYV18, although the receiving country was Pakistan, there was material about a lack of mental health services in Pakistan, as there was material about a lack of mental health services in Sri Lanka in this case.
There are at least 2 points of distinction between BYV18 and the current case.
First, in BYV18, the applicant put material before the Tribunal that his mental ill-health was of a grave nature. He made a statutory declaration that his mental health was becoming “worse and worse,” that he had thought about ending his life “many times,” that he needed frequent treatment and counselling and that his mental health would deteriorate significantly if he were to return to Pakistan: BYV18, [80]. The material as to the applicant’s mental ill-health in BYV18 was of a different grade and level of detail to the material in this case: the risk of serious harm was self-evident. In contrast, in this case, the nature and extent of the Second Applicant’s mental ill-health and his treatment needs were unclear.
Secondly, in BYV18, the Court found that the Tribunal “simply did not address” the Applicant’s claim that he suffered from mental ill-health. In this case the Tribunal did address the Second Applicant’s claim of mental ill-health — it expressly had regard to it — to the extent that material was before it but found that the material was insufficient to give rise to a protection obligation because the Second Applicant had not put material before the Tribunal that proved the linkage between his PTSD and a risk of serious harm.
In conclusion, the claim that the Second Applicant was at risk of serious harm because of his PTSD and a scarcity of mental health services does not squarely arise clearly from the material but required an “independent analytical exercise” and “the discovery of potential claims which might be made, but which have not been”: NAVK, [15]. It required the Tribunal to engage in the kind of “creative activity” — the searching out of further claims — that the Full Court said was outside the limits of the statutory review duty in NABE (at [58]). The potential claim might have focused on the reasons it was claimed that the PTSD taken together with a scarcity of mental health services would give rise to a risk of serious harm: the “linkage” issue. This claim has only been more enunciated now on a judicial review application — after the event — it did not squarely arise on the material before the Tribunal: NAVK, [16].
Materiality
Any failure by the Tribunal to consider the country information as to the scarcity of mental health services could not be material (in the sense discussed in authorities in the High Court including MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17, [2]) in the absence of evidence that there was a real chance of serious harm to the Second Applicant if his PTSD went untreated. I repeat that any failure to consider that evidence of the scarcity of mental health services in Sri Lanka in isolation was not material.
Ground 1 has not been made out.
Ground 2: Did the Tribunal fail to consider a claim by the First Applicant that she would suffer from domestic violence if she returned to Malaysia?
Ground 2 is that the “Tribunal failed to consider a claim by the First Applicant that she would suffer from domestic violence if returned to Malaysia.” The Applicants particularised Ground 2 as follows:
a. In rejecting this claim, the Tribunal stated that the claim was not pursued with any level of detail and that it was not the Tribunal’s role to make an applicant’s case for them.
b. The aforementioned constituted a wilful dereliction of the Tribunal’s duty to consider claims made before it.
c. Accordingly, the Tribunal failed in its duty to review the First Applicant’s claim.
Legal Principles
The Tribunal had to “read, identify, understand and evaluate” the Applicants’ claims. It had to “bring its mind to bear” on what was said. The weight to be afforded to the claims was a matter for the decision-maker. Further, the decision-maker had to engage with the claims within the bounds of “rationality and reasonableness”: Plaintiff M1/2021 v Minister for Home Affairs (2022) 178 ALD 304; [2022] HCA 17. As the plurality held in Plaintiff M1/2021:
The requisite level of engagement — the degree of effort needed by the decision-maker — will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
[Footnotes omitted]
At several points of its reasons, the Tribunal engaged with the First Applicant’s claims as to domestic violence. The Tribunal noted that the First Applicant:
(a)feared persecution on the ground (among others) that she is a member of a particular social group, women in Malaysia suffering domestic violence (CB485, [33]; CB 491, [86]);
(b)claimed “to have suffered domestic violence at the hands of her first husband, without any protection from state authorities and maintained the physical and psychological scars from the same” (CB486; [34]);
(c)claimed that if “she remained in Malaysia her ex-husband [would] carry out a threat to harm her and [would] abduct the children” (CB486, [35]); and
(d)claimed that she was the victim of “severe domestic violence”: (CB 486, [40]). She said that her first husband was a drinker and that “invariably [led to] physical violence and forced sex” (CB486; [41]).
Having noted each of these claims earlier in its reasons, towards the end of its reasons, the Tribunal held as follows at [246] as to the First Applicant’s domestic violence claims:
The Tribunal does not accept:
[…]
·That she received threats of domestic violence from her first husband and threats that he will take away the children even though she had custody of them.
·That A1 continues to fear that if she remained within Malaysia, her ex-husband will carry out his threat to harm her and will abduct the children either to remote parts, or to Indonesia, and she would have no means of recovering them. The applicant did not pursue these claims about threatened family violence or taking children away with any level of detail and it is not the Tribunal’s role to make an applicant’s case for them. What was claimed on this topic was made early in the piece (2013) and has not been elaborated upon. We note from the delegate’s decision that the applicant confirmed to the Department that she does not suffer from domestic violence or suffer from psychological illness.
[Emphasis added]
The Tribunal’s reference to the delegate’s decision that the First Applicant “confirmed to the Department” that she did not suffer from domestic violence was a reference to the delegate’s decision as follows (CB320):
The applicant agreed that while she had suffered domestic violence in a previous relationship she suffered no current persecution due to the domestic violence.
Analysis
The Applicants framed their submissions as to this ground in various ways which included that the Tribunal ignored the claim or did not have an “active intellectual process” (AS, [17]) as to it.
Having regard to those passages set out from the Tribunal’s decision above, the First Applicant has not made out that the Tribunal failed to bring its mind to bear upon her claim to fear domestic violence from her ex-husband should she return to Malaysia.
The Tribunal’s engagement with the claim as to domestic violence
Contrary to the First Applicant’s submission, the Tribunal did bring its mind to bear on the claim — it expressly referred to the claim at several points in its reasons — but it did not accept the claim for reasons which included that the First Applicant had said to the delegate that she “suffered no current persecution due to the domestic violence” (CB320).
More importantly, the Tribunal simply did not believe the First Applicant’s narrative almost in its totality. One claim, among many claims, the Tribunal rejected was that the First Applicant had received threats of domestic violence from her previous husband. This was not a case in which the Tribunal failed to consider the claims of domestic violence. In contrast, the Tribunal actively engaged with, and brought its mind to bear upon, the First Applicant’s claims of domestic violence and, having done so, rejected those claims.
The Applicants make no claim that the Tribunal unreasonably engaged with the claim of domestic violence
The Applicants exclusively framed Ground 2 in terms of a failure to consider an integer of the claim. As set out above, the Tribunal’s identification of the domestic violence claim, consideration and express rejection of it means the Applicants cannot sustain an argument that the Tribunal failed to consider the claim.
There is no ground of review that the way in which the Tribunal engaged with the Applicant’s claim to fear serious harm because of her previous husband’s threats of domestic violence was outside the bounds of rationality and reasonableness: Cf. Plaintiff M1/2021, [25].
In oral argument, the Applicants expressly disavowed any suggestion that an aspect of Ground 2 was that the way in which the Tribunal considered this claim was unreasonable: T18/5-6.
I repeat that the Applicants did not challenge the strong adverse credibility findings against them: Cf, i.e., CQG15 (above).
Ground 2 has not been made out.
DISPOSITION
I will dismiss the application. I will order that that the First and Second Applicants pay the First Respondent’s costs fixed in the amount of $8,371.30. I do not intend to make any costs order against the Third and Fourth Applicants who are children.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 27 February 2024
SCHEDULE OF PARTIES
MLG 3539 of 2018 Applicants
Fourth Applicant:
GBQ18
0
13
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