MZAIP v Minister for Immigration

[2016] FCCA 2425

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAIP v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2425

Catchwords:
MIGRATION – Review of conduct leading to recommendations of Independent Merits Review Assessor – whether recommendations made according to law – whether Independent Merits Review Assessor failed to accord the applicant procedural fairness – whether Independent Merits Review Assessor applied the correct legal principles – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth) s.425

Cases cited:

Minister for Immigration and Citizenship v SZNVW and Anor 183 FCR 575; 114 ALD 666; [2010] FCAFC 41

Minister for Immigration and Multicultural Affairs, Re: Ex parte Applicant S154/2002 (2003) 75 ALD 1; (2003) 201 ALR 437; (2003) 77 ALJR 1909; [2003] HCA 60

Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; (2009) 259 ALR 429; (2009) 83 ALJR 1123; [2009] HCA 39

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 41 ALD 1; (1996) 136 ALR 481; (1996) 70 ALJR 568; [1996] 9 Leg Rep 2; [1996] HCA 6

Applicant: MZAIP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ROGER SHANAHAN IN HIS CAPACITY AS INDEPENDENT PROTECTION ASSESSOR

File Number: MLG 1484 of 2014

Judgment of: Judge McNab

Hearing date: 22 June 2016

Date of Last Submission: 22 June 2016

Delivered at: Melbourne

Delivered on: 14 October 2016

REPRESENTATION

Counsel for the Applicant: Ms Karapanagiotidis

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the Respondents: Mr Knowles

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The Applicant’s amended application filed 2 November 2015 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1484 of 2014

MZAIP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

ROGER SHANAHAN IN HIS CAPACITY AS INDEPENDENT PROTECTION ASSESSOR

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By an amended application filed 2 November 2015, the applicant is seeking by judicial review:

   a)a declaration that a recommendation of the Independent Protection Assessor (“the Assessor”) stating that the applicant not be recognised as a person to whom Australia had owed protection obligations, was not made in accordance with law, and

   b)an injunction restraining the Minister from relying upon the recommendation of the Assessor.

Grounds of Review

1. The grounds of the application as stated in the Amended Application filed 2 November 2015 are as follows:

Ground 1

1. The Independent Merits Reviewer (“the Reviewer”) denied the applicant procedural fairness by taking into account and relying on the Protection Obligations Evaluation (“POE”) Interview.

Particulars

(a)   The reviewer erred in taking into account inconsistent evidence the applicant gave in the POE interview of 9 February 2012, including the applicant’s supplementary statement of the same date.

(b)   The applicant lacked the mental capacity to take part in the interview of 9 February 2012 (See report of Dr Nicholas Owens, 24 June 2014).

(c)   The applicant’s lack of capacity at the POE was material to the reviewer’s assessment, as it relied upon a number of inconsistencies from this interview as referred to at paragraphs [85], [95] and [104] of its recommendation.

(d)   Reliance upon the earlier POE interview by the reviewer has resulted in significant unfairness to the applicant and has rendered unfair the reviewer’s process in assessing the applicant’s claims.

Ground 2

2. The Reviewer denied the Applicant procedural fairness by not taking into account a relevant consideration: the Applicant’s capacity to participate in the POE interview.

Particulars

(a)   The applicant refers to and relies upon the particulars of ground [1].

Ground 3

3. The Reviewer denied the Applicant procedural fairness by failing to undertake an inquiry into whether the Applicant had capacity to participate in the POE Interview.

Particulars

(a) The Reviewer was clearly on notice of the applicant’s serious mental illness and his treatment issues.

(b)   At the hearing, the Reviewer noted in its decision that ‘when inconsistencies were put’ to the Applicant he claimed to have been at Greylands hospital and this might account for them (paragraphs [61], [67]).

(c) In these circumstances the assessor should have made inquiries and/or requested an expert opinion as the Applicant’s capacity at the earlier interview.

Ground 4

4. The Reviewer made a finding without evidence and/or a finding which was unreasonable in that it lacked an evident and intelligible justification.

Particulars

Departure from Iran

(a)   The reviewer found that the applicant was not of interest to the Iranian authorities, ‘given the fact that he was able to leave on his normal passport from Iran without hindrance from the authorities’ (paragraph [91]).

(b) There was no evidence before the reviewer that only persons who were not of interest to the Iranian authorities could leave Iran on their passports without hindrance.

Treatment by the Basij

(c) The applicant claimed that on one occasion the Basij had taken him to the Basij station and had given him 80 lashes and additional punishment for drinking alcohol.

(d) The reviewer found implausible the applicant’s claim that he would be taken from his car, bound by the hands and administered the punishment by the Basij without recourse to legal avenues first (paragraph [90]).

(e) There was no evidence before the reviewer to indicate that the Basij first provide proper legal avenues to persons they have detained.

Ground 5

1. The Applicant’s Outline of Submissions filed 30 November 2015 alleges a further ground of review:

   The reviewer denied the applicant procedural fairness by failing to assess the applicant’s claim that he was at risk of significant harm because of his mental illness.

Background

1. The applicant is an Iranian citizen born on 26 April 1981.

   
   

   On 23 October 2011 the applicant arrived at Christmas Island as an unlawful non- citizen.

The Protection Obligations Evaluation

1. On 6 February 2012, the applicant requested a Protection Obligations Evaluation (“POE”) and in support of that request, he claimed that upon any return to Iran, he would face a real chance of serious harm at the hands of the Iranian authorities on account of:

   a)his atheism;[1]

   b)his involvement in political demonstrations in Iran which included a claim that his expulsion from Azad University in 2001/2002 was due to his political views and involvement in protests against the Iranian government;[2]

   c)his homosexuality; and

   d)his application was supported by the statutory declarations dated 6 February 2012[3] and 9 February 2012.[4]

   [1] Court Book 165

   [2] Court Book 164

   [3] Court Book 142-144

   [4] Court Book 153-154

2. On 9 February 2012 the applicant attended a POE Interview at which he was represented and gave evidence with the assistance of a Farsi interpreter. At the interview, supplementary claims were made by the applicant including that:

   a)he would face a real chance of serious harm at the hands of the Iranian authorities on account of his homosexuality;[5] and

   b)that he had only observed, and not been directly involved in, political demonstrations.[6]

   [5] Court Book 162

   [6] Court Book 164

3. On 29 February 2012, the officer found that the applicant was not a refugee within the meaning of the Refugees Convention (and the Refugees Protocol) (together, “the Convention”). The officer did not accept the applicant’s claims due to adverse credibility findings about his evidence. The officer gave written reasons for his decision.[7]As a result of these findings, the matter was referred to an Independent Protection Assessor for an Independent Protection Assessment.

   [7] Court Book 161-172

Independent Protection Assessment

1. On 12 April 2012, the applicant attended interviews with an officer of the Department and stated that he had been beaten by the Basij because of his atheism.[8]

   [8] Court Book 194

2. The applicant, who had representation, was interviewed by the Assessor on 17 May 2012. The applicant’s representative lodged written submissions which sought to explain, inter alia, the applicant’s previous failure to mention his homosexuality.[9]

   [9] Court Book 215-295

3. At the interview, the applicant said he realised he was gay when he was 17 or 18; had his first relationship when he was 21; and had three boyfriends but casual sex with 20 to 30 other men. He also said that he began a relationship with a man two months before he left Iran.[10]

   [10] Court Book 473

4. On 18 July 2012, after the interview, the applicant’s representative submitted to the Assessor that the applicant suffered various mental health conditions. The representative claimed that as a consequence, the applicant would face a real risk of significant harm in Iran due to:

   a)a purported lack of mental healthcare services in Iran; and

   b)that as a consequence of his mental health conditions, his ability to give evidence may have been affected, including his ability to recall past events and clearly articulate his fears of harm for the future during the hearing.

5. Written submissions were lodged by the applicant together with excerpts from the applicant’s medical records. The applicant submitted:

   [The applicant] … has been taking medication for his psychotic illness and anxiety. We submit that his mental health may have affected his ability to give evidence. In particular, his ability to accurately recall past events and his ability to clearly articulate his fears of harm for the future may have been adversely affected during the Independent Protection Assessment hearing. We ask that this be taken into account when making your decision.[11]

   [11] Court Book 375

6. On 30 July 2012 the Assessment was issued. The Assessor recommended that the applicant not be recognised as a person to whom Australia owed protection obligations under the Convention or otherwise.

The Assessor’s Findings and Reasons

1. The Assessor set out the applicant’s claims and evidence and did not accept that the applicant was a person to whom Australia owed protection obligations under the Convention. That recommendation was based on the following findings and reasons.

2. Mental Health

   The Assessor was not satisfied that the applicant would face a real risk of significant harm in Iran on account of his status as a person suffering from a mental illness. The Assessor had taken into account that the applicant has mental health issues and noted that at the time of the interview the applicant was on a regime of medication. In this regard, he was satisfied that the applicant “…was able to effectively participate in the interview and review process. Even taking this into account I found the claimant’s evidence to be contradictory and embellished and the witness himself to lack credibility”[12] and that “Iran has a robust mental health system.”[13]

   [12] Court Book 471 at [84]

   [13] Court Book 474

3. Credibility

   The Assessor found that the claimant lacked credibility due to the inconsistencies in his evidence and the lack of plausibility in his claims. The assessor did not accept the applicant’s claim to fear harm because of his implied political opinion or his homosexuality.[14]

   [14] Court Book 472 at [95] – [97]

4. Atheism

   The assessor formed the view that the applicant’s claims to fear persecution because of his atheism were contradictory and implausible and provided reasons.[15]

   [15] Court Book 474 at [104]-[106]

5. Evidence at the hearing before the Court

   The applicant relied upon an affidavit of Laura Jean Minette Free sworn 14 June 2016, which annexed health incident reports involving the applicant contained in International Health and Medical Services (“IHMS”) files and medical reports from Dr Nicholas Owens, dated 24 June 2014 and 6 September 2015 respectively. Dr Owens gave evidence at the hearing before this court.

6. Dr Owens was a psychiatrist engaged on behalf of the applicant in order to assess and provide an opinion on the applicant’s capacity to take part in the POE interview on 9 February 2012. No issue arose in relation to Dr Owens’s expertise.

7. Dr Owens gave evidence that he had approached the task of considering the applicant’s capacity to take part in the POE interview as follows:

   The notion of capacity to participate in an interview or to answer questions or to make a decision is something that has a number of elements to it and in my experience these elements are common to a number – a range of different experiences or different situations where capacity needs to be tested. Examples include fitness to plead or to stand trial, testamentary capacity, capacity to make decisions about treatment, and I think participating in an interview where one is answering questions that are giving a reflection of one’s experiences; in other words, questions that are seeking specific information that require one to reflect in order to give complete balanced answers, I think, is another sort of situation. In order to determine whether someone has full capacity in any of these situations, one has to consider a number of factors and these factors include the ability to understand the information that is relevant to answering these questions, to be able to use that information or weigh it up appropriately in order to give an accurate answer to a question. It also includes the ability to recall, or remember all the information that is relevant to answering the question, and it includes an ability to communicate that information in a way that’s clear and rational and consistent. Now, in order to determine whether or not the applicant had capacity at the time that he was having that interview on 9 February, I’m clearly limited in my assessment by the fact that I didn’t assess him on that date or, indeed, any time around that time, so I’m limited to the materials that I’ve been given to read in order to make an inquiry into that.[16]

   [16] Transcript of Proceedings before this court, p.8 (line 10-30).

8. Dr Owens gave evidence before the court that he formed the conclusion that it was more likely than not that the applicant lacked capacity because the things that he said in the interview seemed to have been inconsistent with each other and somewhat incongruous.[17]

   [17] Transcript of Proceedings before this court, p. 8 (line 30-40).

9. Dr Owens stated:

   There were periods during the interview when he appeared to be confused about what he was asked, and given that the interview took place during a period of several weeks when the evidence from the clinical notes in the detention centre suggest that his mental health was deteriorating to the point that about two weeks after the interview he ended up being admitted to a psychiatric hospital in an acutely psychotic state. So, given that context, I think that a likely explanation for his difficulty in attending to the questions asked in giving consistent answers was related to his mental state deteriorating at that time. That in a nutshell is my reasoning behind why I have come to that conclusion.[18]

   [18] Transcript of Proceedings before this court, p. 8 (line 40).

10. In his report dated 24 June 2014, Dr Owens conducted a detailed and comprehensive review of the medical records held by the Department. Without reciting in detail all the matters set out in the report, it is notable that Dr Owens made reference to the following matters arising from those records:

    a)the applicant presented with symptoms of psychosis when reviewed by a mental health nurse on 2 November 2011 at the Curtin Immigration Detention Centre. At that point he reported that the Iranian police had implanted a chip in his tooth and ear in 2005 and by which they were monitoring his activities. At that time he denied any prior psychiatric history;

    b)on 12 December 2011, the applicant was examined by a visiting psychiatrist Dr Stephen Fenner at which time he repeated his view that he had been rendered unconscious a few years ago and that a computer chip had been placed in his tooth filling and elsewhere in his body for the purposes of monitoring his activities. He then claimed that he had come to Australia so that he could have scans to detect the computer chips and have them removed;

    c)that the applicant was admitted as an involuntary patient to a hospital in Perth from 14 December 2011 to 28 December 2011; at the time of his hospitalisation he described the delusional ideas in relation to his tooth filling as well as ideas that he was “chosen by God.” The applicant was prescribed antipsychotic medication and discharged;

    d)the review by Dr Owens refers to reported instances of the applicant refusing to take anti-psychotic medication from about 8 January 2012 and when he attended a mental health clinic on 23 January 2012 he reported that his mood was normal and denied psychotic symptoms and indicated that he did not want to take antipsychotic medication. Significantly, the report then provides that the applicant was assessed by a psychiatrist, Dr Morton, on 15 February 2012, who concluded that the applicant was psychotic and that he was admitted as an involuntary patient to Bentley Hospital between 16 February 2012 and 24 February 2012.

    e)the discharge notes from the Bentley Hospital indicated that the applicant had consulted someone at the detention centre the previous day and that he had reported that he believed that he had a chip in his tooth which was able to broadcast his thoughts to the Iranian authorities. The admission notes to the Bentley Hospital summarised that the applicant had:

    i)well systemised persecutory delusions;

    ii)delusions of reference;

    iii)impaired insight and judgement; and

    iv)he was judged to be at risk of aggression secondary to persecutory delusions.

    Upon his release from hospital the applicant was prescribed further antipsychotic medication.

11. As I have stated above, the material set out by Dr Owens is a detailed account of the history revealed by the medical records which he was provided to review for the purposes of his report. The report of Dr Owens concluded with his opinion in respect of the capacity of the applicant to participate in the interview on 9 February 2012 in the following terms:

    Overall, my view is that on balance, the likelihood is that he was unwell throughout this period, but was either deliberately concealing his psychotic thinking from mental health staff, or felt unable to divulge his mental state owing to paranoia and regarded this secondary to his mental illness. It follows that he was likely to have been unwell at the time of the interviews on 23 January 2012, and 9 February 2012, even if his illness was not directly apparent upon listening to the audio recording of the interview of 23 January 2012.

12. In respect of the interview of 17 May 2012, Dr Owens was of the opinion that the applicant had the capacity to participate in the Independent Protections Assessment held on that date.

13. In the second report of Dr Owens dated 6 September 2015, he provided an opinion as to the applicant’s ability to be consistent over the course of three interviews conducted on 9 February 2012, 12 April 2012 and on 17 May 2012. At page 19 of the Court Book, Dr Owens concluded:

    The second interview was conducted about six weeks after his discharge from hospital, after a seven week period of compliance with antipsychotic medication. The third interview was conducted about three months after discharge from the second admission, and after he had been compliant with antipsychotic medication for three months. As a result, his ability to be consistent in his information across the three interviews was reduced. It would appear that he provided the most comprehensive information in the final interview, including some ability to weigh up and clarify things that he had reported in the previous interviews. To my mind, this reflects the benefit that consistent treatment had provided.

1. In relation to the evidence provided by Dr Owens, in my opinion his evidence was measured and the conclusions he reached were readily apparent and reasonably based on the material that he had reviewed. He gave no impression of seeking to advocate on behalf of the applicant.

Grounds of Review

Ground 1

The Assessor denied the Applicant procedural fairness by taking into account and relying on the Protection Obligations Evaluation Interview.

1. The applicant submitted that he lacked the mental capacity to take part in the interview of 9 February 2012 with the POE officer. It was said that this lack of mental capacity was material to the Assessor’s assessment and findings as the Assessor relied upon a number of inconsistencies from that interview. The recommendation made by the IHMS Manager that the applicant was fit to be interviewed, was “based on an informal encounter” with a mental health nurse. The applicant puts at [32] of his Outline of Submissions that therefore there had been no fitness and/or mental health assessment of the applicant to see if he was mentally fit for the interview.

2. It was accepted by both parties that the assessor was obliged to afford the applicant procedural fairness.

3. It was submitted by the first respondent that the applicant must prove that:

   a)he was unfit to take part in an interview with an officer of the Department on 9 February 2012; and

   b)as a result of his unfitness at the time of the first interview, the assessor failed to afford him an opportunity to be heard.

The First Respondent’s Submissions

1. The first respondent submits that it was not sufficient for the applicant to state that at the time of the interview on 9 February 2012, he suffered from a disability and the disability affected him in some way that, in turn, affected his ability to participate in that interview.[19] Rather, the applicant must prove that any unfitness on his part was so sufficiently serious that it deprived him of the opportunity to be heard at the interview. The first respondent submits that the Court must consider whether or not the applicant has proved that he was deprived of the ability to give evidence and take part in the proceedings in any meaningful way.[20] It is also relevant that the applicant was represented at all times by legal representatives who could, and did, make submissions on behalf of the applicant about issues pertinent to the review.[21]

   [19] First Respondent’s Outline of Submissions at [4.2]

   [20] Ibid at [4.4]

   [21] Ibid at [4.5]

2. The first respondent submits that the Court must consider the weight to be given to an expert opinion regarding the applicant’s condition at the time of the interview; the evidence which includes the assessment of the applicant by the officer conducting the interview and any recordings or transcript of the interview. The first respondent suggests at [4.9] that the transcript of the interview demonstrated that neither the applicant nor his representatives complained of any inability to give evidence or take part in the interview. The transcript also demonstrated that the applicant was able to respond substantially to the questions asked of him. The first respondent puts that when the transcript is considered as a whole, the answers of the applicant are not suggestive of an inability to give evidence and take part in the interview in a meaningful way.

3. It was said that the existence of a medical condition which contributed to difficulties on the part of an applicant in the presentation of his or her claims and evidence does not render the interview process procedurally unfair. The first respondent further states that, in any event, the applicant had not established that by reason of any medical condition experienced by him at the time of the interview with the Department’s officer on 9 February 2012 and the time of the interview with the Assessor on 17 May 2012, he was denied procedural fairness.

4. The first respondent puts that the Assessor had taken into account the applicant’s mental health and had considered inconsistencies that were not confined to those apparent in the applicant’s interview on 9 February 2012 and the interview on 17 May 2012.[22] The first respondent further states that the Assessor was entitled to take into account clear inconsistencies in the applicant’s evidence about key aspects of his claims and find that the applicant’s medical condition did not account for those inconsistencies. The Assessor did so, in the light of any difficulties that the applicant might have had in recalling details of his claims due to his mental health.[23] The first respondent states that it was open to the Assessor, even allowing for those difficulties, to find, as a matter of fact, that the applicant was not a credible witness.[24] In addition, the Assessor was under no obligation to undertake an inquiry into the applicant’s medical condition.

   [22] First Respondent’s Outline of Submissions at [4.12]

   [23] Ibid at [4.13]

   [24] Ibid

5. The first respondent submits at [4.15] that the applicant has neither specified any critical fact which might have been the subject of an obvious inquiry nor has he shown how the existence of any critical fact might have been ascertained. The first respondent adds that the applicant had not established that any failure by the Assessor to make an inquiry supplied a sufficient link to the outcome so as to constitute a constructive failure to exercise jurisdiction.

Consideration of Ground 1

1. The real issue in this case, as identified by the applicant in his grounds of appeal, is whether, by reason of his condition and the responses given at the first interview when he was subject to that condition, he was denied procedural fairness on 17 May 2012 when he was interviewed by the Assessor.

2. I accept the submissions made by the first respondent that:

   a)the applicant and his representative made claims before the assessor relating to the applicant’s mental health. The letter from the representative to the Assessor dated 18 July 2012 was specifically directed to the applicant’s mental health and stated:

   (the applicant) has been taking medication for his psychotic illness and anxiety. We submit that his mental health may have affected his ability to give evidence. In particular, his ability to accurately recall past events and his ability to clearly articulate his fears of harm for the future may have been adversely affected during the independent protection assessment hearing. We ask that this be taken into account when making your decision.[25]

   b)The applicant told the Assessor that he may have said things previously under the influence of medication, but what he said on 17 May 2012 was true;[26]

   c)the Assessor was aware of applicant’s mental health and took it into account in his assessment of the applicant’s evidence;[27]

   d)the assessor invited the applicant to comment on inconsistencies in his evidence in support of his claims including his claimed atheism and homosexuality;[28] and

   e)the applicant, by his representative, filed written submissions in relation to the applicant’s mental health.[29] The Assessor made reference to those submissions and took them into account.

   [25] Court Book 375 to 376 and 467 at [61] and [67]

   [26] Court Book 468 at [71]

   [27] Court Book 470 at [82] and [84]

   [28] Court Book 466 to 468 at [58] – [62], [67] – [71]

   [29] Court Book 375 to 376

3. In my view, the applicant has established, on the balance of probabilities that he was unable to participate in a meaningful way in the interview of February 2012. The evidence of Dr Owens establishes that in the period leading up to the interview, the applicant was exhibiting signs of psychosis and disordered thought. Very shortly after the interview he was admitted to a hospital as psychotic and prescribed medication to deal with that. This much is apparent from the contemporaneous notes assessed by Dr Owens. In these circumstances, having regard to the matters referred to in [22], on the balance of probabilities, the applicant lacked capacity to give considered and rational answers at the interview on 9 February 2012.

4. In my view, the reasons for decision at [82] and [84] indicate that the Assessor did take into account that the applicant had mental health issues which may have affected the answers that he gave at the interview in February 2012.[30]The Assessor was aware of inconsistencies in information provided by the applicant as between what he said in his first interview and at the interview on 17 May 2012. The applicant was given the opportunity to correct inconsistencies which were raised directly with him. The Assessor was able, and it was open to him, to find that the applicant was not a credible witness by reason of what he said on 17 May 2012.

   [30] Court Book 470 - 471

5. On 17 May 2012 the applicant was not deprived of a “meaningful opportunity” required by s.425 of the Migration Act 1958 (Cth) to give an account of his experiences; to present arguments in support of his claims; and to understand and respond to the questions put to him in relation to the inconsistencies between the accounts that he had given.[31]

   [31] Minister for Immigration and Citizenship v SZNVW and Anor 183 FCR 575 at [20]

6. In my view, the applicant has not made out a case that he was denied procedural fairness by the Assessor taking into account inconsistencies in the information provided by the applicant between the interview on 9 February 2012 and the interview on 17 May 2012.

Ground 2

The Assessor denied the Applicant procedural fairness by not taking into account a relevant consideration being the Applicant’s capacity to participate in the Protection Obligations Evaluation Interview on 9 February 2012.

1. It was submitted by the applicant that by failing to take into account the capacity of the applicant to participate in his earlier POE interview, the Assessor had denied the applicant procedural fairness. The applicant submits that all of the applicant’s answers in the POE interview and in particular, the ones relied upon by the Assessor, were unreliable and potentially incorrect.

2. As stated above, the Assessor specifically took into account the submissions made by the applicant in respect of his mental health and averted to those matters in the decision. The Assessor did take into account the applicant’s mental health.[32] The applicant has not established that the Assessor had any obligation to undertake an inquiry into his medical condition and that it was not part of the Assessor’s function to make out the applicant’s case for him in respect of a claim of mental impairment.[33] The applicant was aware of the findings of the IPA dated 29 February 2012 which made specific findings about the applicant’s mental health. It was a matter for the applicant to address the Assessor in relation to those matters at the interview on 17 May 2012.

   [32] Court Book 470 at [84]

   [33] Minister for Immigration and Multicultural Affairs, Re: Ex parte Applicant S154/2002 (2003) 75 ALD 1; (2003) 201 ALR 437; (2003) 77 ALJR 1909; [2003] HCA 60 at [1] and [57]

3. The Assessor did not have available to him the medical evidence of Dr Owens when he made the decision and nor would such an opinion have been apparent to the Assessor. It appears that was not apparent to the applicant’s legal advisers, who represented him at both the February 2012 interview and the May 2012 interview. For these reasons, in my view, the applicant has not established Ground Two.

Ground 3

The Assessor denied the Applicant procedural fairness by failing to undertake an inquiry into whether the Applicant had capacity to participate in the Protection Obligations Evaluation Interview.

1. The applicant submits that the Assessor was on notice of the applicant’s serious mental health issues and in circumstances where the Assessor should have made inquiries and/or requested an expert opinion as to the applicant’s capacity, he failed to do so. The applicant submits that if the Assessor had made the necessary inquiry into the applicant’s mental health, it would have shown that at times along the process of the applicant’s claims being considered, the applicant had been mentally unfit and lacked the capacity to participate in the POE interview.

   
   

   The failure to make the inquiry is a sufficient link to the outcome of the Assessor’s assessment so as to constitute a legal error or a denial of procedural fairness to the applicant.

2. The applicant relied on a passage of the plurality in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] which states (omitting footnotes):

   25. Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a "duty to inquire", that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.  It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.  It is not necessary to explore these questions of principle in this case…

3. For the reasons stated above, I am also of the view that Ground 3 has not been made out on the basis that the second respondent was not required to make a case for the applicant and the requirement to make enquiries only arose in exceptional circumstances.[34] It is not apparent from the transcript of the POE interview that the applicant had mental health issues which prevented him from answering questions or advancing his position. Further, the applicant’s representatives had advised the Assessor that he had mental health issues and those were taken into account.

   [34] Minister for Immigration and Citizenship v SZIAI(2009) 111 ALD 15; (2009) 259 ALR 429; (2009) 83 ALJR 1123; [2009] HCA 39 at [21] – [26]

Ground 4

The Assessor made a finding without evidence and/or a finding which was unreasonable in that it lacked an evident and intelligible justification.

1. The applicant states that there was no evidence before the Assessor that only persons who were not of interest to the Iranian authorities could leave Iran on their passports without hindrance. Therefore that finding was unreasonable.[35]

   [35] Applicant’s Outline of Submissions at [60]

2. In regards to the applicant’s treatment by the Basij, the Assessor had found it implausible that the applicant’s claim that he would be taken from his car, bound by the hands and administered the punishment (80 lashes and additional punishment from consuming alcohol) without recourse to legal avenues first.[36] The applicant states that there was no evidence before the Assessor to indicate that the Basij first provide legal avenues to persons they have detained.[37]

   [36] Applicant’s Outline of Submissions at [61]

   [37] Ibid at [63]

3. In response to the applicant’s assertions that the factual findings made by the Assessor about the applicant’s departure from Iran and the Basij were unsupported by evidence or unreasonable, irrational or illogical, the first respondent claims that the applicant is impermissibly seeking to ask the Court to embark on a review of the merits of the Assessor’s fact-finding.

4. At [4.17] of their written submissions, the first respondent states that it was open to the Assessor to make the finding that by reason of the applicant’s unhindered departure using his own passport, the applicant was not of interest to the Iranian security authorities and that there was a logical or probative basis for the finding.

5. The Assessor had found that the applicant’s claim with regards to his treatment at the hands of the Basij was implausible and that the applicant’s own evidence did not support the applicant’s claim. No jurisdictional error is to be found with this reasoning.[38]

   [38] First Respondent’s Outline of Submissions at [4.18]

6. In my view, the assessor considered the applicant’s claim in relation to the fear of persecution. The Assessor specifically stated at [76] that he had considered the country information. In essence, the applicant seeks to challenge the finding of fact and is thereby seeking that the Court embark upon an exercise of merits review. I do not accept that the findings were unsupported by evidence or that they were unreasonable, irrational or illogical.

7. Similarly, in relation to the challenges to the Assessor’s finding that it was implausible that the applicant was taken from his car, bound by his hands and administered punishment by the Basij without recourse to legal avenues first, the Assessor found at [90]:

   I am also not satisfied that the claimant was detained and lashed by the Basij for consuming alcohol. While he is correct that the punishment for alcohol consumption listed the Iranian penal code is 80 lashes, I find it implausible that he would have been would be taken from his car, bound by his hands and administered the punishment by the Basij without recourse to legal avenues first. This account is also inconsistent with his claim that he had not been arrested for his atheism or homosexuality because the Basij could not arrest people without an arrest warrant.

8. In my view, the first respondent correctly submits that the Assessor was not satisfied of the matters referred to in [90] because he found the applicant’s claims to be implausible and he explained why that was the case.

Ground 5

The Assessor denied the applicant procedural fairness by failing to assess the applicant’s claim that he was at risk of significant harm because of his mental illness.

1. The applicant claimed that he was owed complementary protection because he had a serious mental illness and health services were extremely difficult to access in Iran.[39]

   [39] Applicant’s Outline of Submissions at [65]

2. The Assessor was satisfied that ‘Iran has a robust mental health system’ and he was not satisfied that there were substantial grounds for believing that there was a real risk of significant harm to the applicant as a member of a particular social group of ‘people suffering from mental illness in Iran.’[40]

   [40] Court Book 474 at [108]

3. The Assessor had country information provided by the applicant’s advisers to inform him of this issue and that information was critical of the Iranian medical system and the availability of mental health services. The United Kingdom: Home Office, Country of Origin Information Report- Iran, 28 June 2011, provided by the applicant, stated, inter alia, as follows:

   Despite the fact that the majority of mental health professionals, including all psychiatrists currently live in cities, service delivery is very poor and disorganized where public and private sectors provide care in an uncoordinated manner and services are manly [sic] hospital- and office-based. In addition, with a [sic] very few exceptions, community-based programs for patients with severe mental illnesses are non-existent, and service disengagement and the revolving door phenomenon of discharges, and readmissions is incredibly frequent… The shortage in psychiatric beds is great and insufficient provision of community based services has increased the magnitude of the problem.[41]

   [41] Court Book 377

4. The applicant submits that by failing to assess or consider the reported problems in the provision of health services as outlined in the above report, the Assessor reached a conclusion without any intellectual assessment or consideration of the claim or the material before it.

5. In relation to the applicant’s claim that the Assessor failed to take into account the real chance of harm he faces in Iran as he would not receive treatment for his mental health, the Assessor has set out the basis for his finding and there is no substance to the ground that the decision is illogical or lacked any relevant basis.

1. At [76] of his reasons, the Assessor stated that he has considered country information provided by the claimant’s adviser, in particular, the UK Home Office report referred to above and a World Health Organisation Report titled ‘Report on Mental Health Systems in the Islamic Republic of Iran’.[42] The country information is extracted at court book page 377, and the Assessor considered that material.

   
   

   The criticism of the First Respondent is that it failed to make an assessment of the material, not that there was no material or evidence on which the Assessor could form a view.[43] Having regard to that material, it was open for the Assessor to make that finding, as he was satisfied that Iran had “a robust mental health system.” Regard must be had to all the material submitted to the Assessor. Additionally, the Assessor was not obliged to give a line-by-line refutation of evidence that was contrary to his material findings of fact. Further, it is not open to this court to turn a review of the reasons into a reconsideration of the merits of the decision.[44]

   [42] World Health Organisation 2006, ‘Report on Mental Health Systems in the Islamic Republic of Iran’, WHO Tehran.

   [43] Transcript of Proceedings before this court, page 85 at [30]

   [44] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] 185 CLR 259

CONCLUSION

1. No jurisdictional error affects the reasoning of the Tribunal. Accordingly, I order that the applicant’s claim be dismissed and the applicant pay the first respondent’s costs.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 14 October 2016