GDV18 v Minister for Immigration

[2020] FCCA 1507

FEDERAL CIRCUIT COURT OF AUSTRALIA

GDV18 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1507

Catchwords:
MIGRATION – Immigration Assessment Authority – Application for a Safe Haven Enterprise (SHEV) visa – whether the Authority constructively failed to exercise its jurisdiction, by failing to consider a claim based on material against the complimentary protection criterion – whether there is legal unreasonableness – whether jurisdictional error made out – no jurisdictional error made out – the application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 5J(1)

Cases cited:

Carrascalao v Minister for Immigration and Border Protection (2017) 347 ALR

173

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR

259

Minister for Immigration v Yusuf (2001) 180 ALR 1

SZSGA v Minister for Immigration and Multicultural Affairs and Citizenship

(2013) FCA 774

WAEE v Minister for Immigration and Multicultural and Indigenous Affairs

(2003) 236 FCR 593

Applicant: GDV18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3302 of 2018

Judgment of: Judge Humphreys

Hearing date: 9 June 2020

Date of Last Submission: 9 June 2020

Delivered at: Parramatta

Delivered on: 9 June 2020

REPRESENTATION

Counsel for the Applicant: Ms Yu

Solicitors for the Applicant: Michelle Tzu-Shen Yu, Barrister

Counsel for the Respondents: Ms Hooper

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The name of the first respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 3302 of 2018

GDV18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

(As revised from the transcript)

Introduction

1. The applicant is a citizen of Egypt. The applicant first arrived in Australia as an unauthorised maritime arrival on 16 July 2013.

2. On 26 April 2017, the applicant lodged an application for a Safe Haven Enterprise (Protection) Visa.

3. On 21 September 2018, a delegate of the Minister for Immigration, (“the delegate”) refused to grant the applicant a protection visa.

4. The applicant was referred to the Immigration Assessment Authority (“the Authority”) for a merits review.

5. In a decision dated 30 October 2018, the Authority affirmed the delegate’s decision to refuse the applicant a protection visa.

6. The applicant now seeks judicial review of the Authority’s decision.

The Immigration Assessment Authority’s Decision

1. In light of the very limited scope of the ground of appeal, which is set out below, it is not necessary to summarise the Authority’s decision in detail, as the relevant areas of the decision are adequately dealt with in both the applicant’s and the first respondent’s submissions and subsequent consideration.

Grounds of Appeal

1. In an amended application filed on 22 April 2020, the applicant seeks to rely upon a single amended ground of appeal. As the first respondent did not oppose the grant of leave to the applicant to rely upon this amended application, leave was granted.

2. The amended ground of appeal is as follows:

   Ground 1

   The second respondent (the IAA) constructively failed to exercise its jurisdiction by failing to consider a claim arising on the material against the complementary protection criteria in

   
   

   s 36(2)(aa) of the Migration Act 1958.

   Particulars:

   a)   The IAA, at [44] of its decision, found there was a claim for protection arising on the material on the basis the applicant’s mental health and membership of a particular social group (ie people with mental illness). Relevantly, at [45] of its decision, the IAA accepted that, among other things, the applicant has ‘schizophrenia and PTSD, with symptoms of depression and anxiety and a history of self-harm’.

   b) At [45] to [53] of its decision, the IAA assessed the claim referred to above in (a) against the criterion in s 36(2)(a) of the Act. In doing so, the IAA found, (at [50] to [51] of its decision), that people with a mental illness, such as the applicant, may suffer social stigma and have a difficulty in accessing public health services in rural areas. Further, the IAA stated, at [53] of its decision, that it was satisfied that any social stigma the applicant may experience as a result of having a diagnosed mental health condition did not amount to serious harm, and that the applicant would not be denied treatment for reasons relating to his membership of a particular social group.

   c) At [68] of its decision, the IAA found that the applicant did not meet the complementary protection criterion in s 36(2)(aa) of the Act because there were no substantial grounds for believing that there was a real risk that the applicant would suffer significant harm.

   d) In arriving at the conclusion set out in (c) above, the IAA did not give any proper, realistic or separate consideration to whether the applicant’s mental health condition gave rise to a real risk of significant harm as defined in s 36(2A) of the Act. This was relevant to the IAAs decision to affirm the refusal of the applicant’s visa application. Consequently, the IAAs decision was affected by jurisdictional error.

The Applicant’s Submissions

1. Counsel for the applicant notes that the only issue now relied upon, is whether or not the Authority constructively failed to engage its jurisdiction by failing to consider a claim arising on the material against the complementary protection criteria in s 36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”).

2. In relation to this ground, a decision-maker may constructively have failed to exercise jurisdiction by taking into account a relevant consideration, or failing to take into account relevant considerations. (see Minister for Immigration v Yusuf (2001) 180 ALR 1 at [41]).

3. Counsel for the applicant submits that where a claim is considered, it is necessary for the decision-maker to give proper, genuine and realistic consideration to the relevant claim or evidence (see Carrascalao v Minister for Immigration and Border Protection (2017) 347 ALR 173 at [35]).

4. In the present case, the Authority was correct to treat the applicant’s mental health as giving rise to a claim arising on the material and then conducting an assessment as to whether or not the applicant was owed protection under the protection obligations pursuant to s 36(2)(a) of the Act.

5. However, Counsel for the applicant submitted that the Authority did not conduct an assessment of this issue under the complementary protection criteria in s 36(2)(aa) of the Act. It is submitted that the Authority failed to give any proper, realistic or separate consideration, as to whether the applicant’s mental health condition gave rise to a real risk of significant harm, as defined in s 36(2A) of the Act.

6. Counsel for the applicant submitted that in the absence of any express reference in the Authority’s reasons to whether the applicant’s mental health condition gave rise to a real risk of significant harm, as defined in s 36(2A) of the Act, the matters cannot be said to have been considered by the Authority, as a part of its reasons at [56] to [57], or elsewhere.

7. Counsel for the applicant submits that had the applicant’s mental health condition been properly considered in its assessment of whether or not he met the criteria in s 36(2)(aa) of the Act, the outcome of the Authority’s decision may have been different, such that the Authority’s error was material to its decision to affirm the refusal of the applicant’s visa.

The First Respondent’s Submissions

1. Counsel for the first respondent first notes that the Authority’s reasons should not be read “minutely and finally with an eye keenly attuned to the perception of error” (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272]).

2. Counsel for the first respondent concedes that on the material before the Authority, that the applicant feared harm in Egypt due to his mental health condition. It was dealt with in the context of a consideration under s 36(2)(a) of the Act. The complaint of the applicant solely relates to whether or not the claim was properly considered under s 36(2)(aa) of the Act.

3. In WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (“WAEE”) at [506], the Full Court of the Federal Court, consisting of French, Sackville and Hely JJ, stated at [47]:

   The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn, where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of the applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

4. There is no error in a decision-maker, making findings of fact in the context of consideration of the applicant’s application in s 36(2a) of the Act and then applying those same factual findings in the consideration of s 36(2)(aa) of the Act (see SZSGA v Minister for Immigration and Multicultural Affairs and Citizenship (2013) FCA 774 (“SZSGA”) at [54] to [56], per Robertson J). However, the decision-maker must engage with the language of s 36(2)(aa) of the Act and consider the claim by reference to that provision.

5. In the current case the Authority considered new information submitted by the applicant in regards to his mental health and also obtained, and considered new information as to the treatment of people with mental illness in Egypt.

6. It is submitted by Counsel for the first respondent that at paragraphs 9 to 44 of its decision, the Authority appreciated the existence of the applicant’s claim and made dispositive findings in relation to both

   
   

   ss 36(2a) and (aa) of the Act. In the course of its consideration of the criteria in s 36(2)(a) of the Act, the Authority found, based on country information, that persons with a mental illness in Egypt may suffer social stigma and have difficulty accessing public health services.

7. While the Authority was satisfied that the applicant may suffer some social stigma in a rural community, it was satisfied that there was no real chance that the applicant would suffer “serious harm”, having regard to s 5J(5) of the Act. The Authority was satisfied that the applicant would not be prevented from accessing mental health services for a s 5J(1) of the Act reason. The Authority was satisfied that the applicant’s return to Egypt would be such that the applicant would be in a: “…safe and secure environment with the social support of his family” and that any social stigma he may experience because of his mental health condition did not amount to serious harm.

8. In relation to the complementary protection criteria in s 36(2)(aa) of the Act, the Authority found, at paragraph 59 of its decision, that it was satisfied there was “…no real risk the applicant would suffer significant harm from members of the Muslim Brotherhood, or any other group, or Egyptian authorities … or as a consequence of being a failed returned asylum seeker or having a mental health condition” (emphasis added).

9. These factual findings were pertinent to the assessment of the criterion in s 36(2)(aa) of the Act. At paragraph 67 of its decision, the Authority found, in considering the treatment the applicant would experience as a whole, the Authority was not satisfied that it accumulatively amounted to significant harm, nor was there a real risk he would suffer significant harm based on the cumulative effect of his circumstances or profile.

10. It is submitted by Counsel for the first respondent that this demonstrated that the Authority gave consideration to the treatment of the applicant that the applicant would experience in assessing his complementary protection claims. Given this was a cumulative finding, it cannot be suggested that an individual finding that had already been made was capable of producing a different result.

11. It is for this reason that the finding in paragraph 67 of the Authority’s decision, is one of greater generality and subsumes any other finding that can be made on the applicant’s mental health claims alone.

12. Finally, it was submitted that the applicant had failed to discharge the burden of proof with respect to the materiality of the error alleged, even if there is one (see Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123) at [30] to [3].

Consideration

1. Section 36(2A) of the Act defines significant harm to include the following, at:

   Subparagraph (d):

   “The non-citizen will be subjected to cruel or inhuman treatment or punishment or – ”

   Subparagraph (e):

   “The non-citizen will be subject to degrading treatment of punishment”.

2. Cruel of inhuman treatment or punishment is further defined in s A of the Act to include, at:

   Subparagraph (a):

   “Severe pain or suffering, whether physical or mental, which is intentionally inflicted on the person;”

   or:

   “Pain and suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all of the circumstances, the act or omission could be reasonably regarded as cruel or inhuman in nature”.

3. The Court pauses here to simply point out the very circular nature of subparagraph (b), in relation to the definition: “Degrading treatment or punishment” is further defined in s 5 of the Act to include:

   “An act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission (a) that is not inconsistent with Article 7 of the Covenant, or (b) that causes, and is intended to cause, extremely humiliation arising only from, inherent or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant”.

4. The applicant’s sole complaint is that the Authority failed to properly consider whether or not the applicant would be harmed if he was returned to Egypt with a mental health condition, pursuant to s 36(2)(aa) of the Act. Put another way, the complaint is that the discussion in the complementary protection part of the decision is insufficient in relation to the applicant’s claims regarding mental health. At paragraphs 7 to 8 of its decision, there is no doubt, that there was material before the Authority, which was accepted, that indicated that the applicant suffers from schizophrenia, PTSD and previous self-harm.

5. The issue of fear of harm for reasons of mental illness was dealt with by the Authority extensively at paragraphs 44 to 53 of its decision. This included consideration of the applicant’s current mental health, his current treatment and diagnosis, together with an analysis of the availability of public health care in rural areas of Egypt based on relevant country information. The Authority was satisfied that the applicant may suffer some social stigma in a rural community, but with the support of his family it was not such that he would be prevented from accessing mental health services for any reasons contained in s 5J(1) of the Act.

6. That section includes being persecuted for reasons of being a member of a social group. In this context the Authority interpreted this to mean a person suffering from mental illness. In relation to complementary protection, at paragraph 59 of its decision, the Authority states that, for the reasons discussed above in relation to its assessment under s 36(2A) of the Act, it was not satisfied there was a real risk to the applicant of significant harm as defined in s 36(2A) of the Act for reasons including having a mental health condition.

7. The Court is satisfied that the Authority did properly turn its mind, under the complementary protection analysis, to the issue of harm that the applicant might suffer by reason of his mental health status. This included the statement that it had considered both the individual and cumulative issues faced by the applicant and the conclusion that it did not amount to significant harm. The Court agrees with the first respondent that there was no error by the Authority in making findings of fact, in the context of s 36(2)(a) of the Act and then applying those to a consideration to the complementary protection requirements under

   
   

   s 36(2)(aa) of the Act (see SZSGA).

8. Further, given that there was a specific reference to the applicant’s mental health status within the complementary protection assessment, specifically at paragraph 59 of the Authority’s decision, the Court cannot accept the applicant’s submission that the Authority failed to properly consider it. To make this finding would be to read the Authority’s reasons with “an eye too finely attuned to error” (see WAEE). Even if the Court is wrong in this conclusion, the Court is not satisfied, on the basis of materiality, that the alleged error would have made a difference to the overall outcome.

9. The Authority made clear findings that the applicant would not suffer serious harm under section 36(2)(a) of the Act. If the Authority had engaged in a more extensive discussion of the issue under the complementary protection requirements, the Court remains satisfied that it would still have come to the same conclusion that it did, that the applicant did not face a real risk of significant harm due to his mental health conditions if returned to Egypt. In these circumstances, no jurisdictional error is made out.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Deputy Associate:

Date: 12 June 2020