Plaintiff M94/2020 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] HCATrans 198

[2020] HCATrans 198

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M94 of 2020

B e t w e e n -

PLAINTIFF M94/2020

Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE BY VIDEO CONNECTION

ON MONDAY, 23 NOVEMBER 2020, AT 9.29 AM

Copyright in the High Court of Australia

MR M.J. KENNEALLY:   May it please the Court, your Honour, I appear for the plaintiff.  (instructed by MP Migration Law)

MR T.B. GOODWIN:   If the Court pleases, I appear for the defendant, your Honour.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Kenneally.

MR KENNEALLY:   Your Honour, this is an application for an extension of time.  The applicant’s case is it should be granted due to the underlying reason for the delay, being negligence by the migration agent, and the substantive merits in the application. 

In terms of the merits the applicant’s application for a protection visa was rejected, fundamentally because it was found he could reasonably relocate within Afghanistan to avoid significant harm.  The question the delegate needed to consider was whether it was reasonable having regard to this plaintiff’s personal circumstances in the place of relocation.

The delegate failed in two respects.  It assumed the plaintiff had been employed in Australia when he had not and it failed to consider the impact of relocation on the plaintiff’s mental health.  Given the significance of those two errors, the statutory task was not completed.  The circumstances assessed simply were not this plaintiff’s and a critical issue relating to relocation, on the delegate’s own reasons, his mental health, was never assessed in the place of relocation.

HIS HONOUR:   Just pausing there, Mr Kenneally, was it submitted to the delegate that the plaintiff’s mental condition would likely be detrimentally affected by removal to the place to which, ultimately, it was determined he should go?

MR KENNEALLY:   No, it was not, your Honour.  The submission is put on the basis that it clearly emerged from the materials before the delegate.

HIS HONOUR:   Is that to say there was any particular evidence before the delegate of inadequacy in the available mental health treatment services in the place to which the plaintiff was to be sent?

MR KENNEALLY:   Yes, your Honour, in that I will – firstly, there was some evidence of the treatment he received in Australia.

HIS HONOUR:   Yes.

MR KENNEALLY:   Which was psychotherapy and medication.  There was no submission put by the applicant or his representatives that the treatment would be inadequate in Mazar‑e‑Sharif, but there was, based on the country information, which the delegate considered, very clear evidence that there were potential difficulties with accessing treatment in Mazar‑e‑Sharif.  So there was no express submission, but there was material in the country information.

HIS HONOUR:   That EASO report, was it, that the delegate had regard to tended to suggest that, even if the conditions were not as good as they might be thought in this country, they were at least up to a standard that was acceptable for a single man?

MR KENNEALLY:   Those reports suggested there was some treatment available, your Honour, and as to whether it was acceptable for a single man the submission would be that would be a finding for the delegate to have made.  We have extracted two extracts of that material.

HIS HONOUR:   Yes.

MR KENNEALLY:   The critical and specific extract relating to Mazar‑e‑Sharif is at page 18 of the plaintiff’s instructor solicitor.

HIS HONOUR:   Yes.

MR KENNEALLY:   This is from an EASO report in the footnote.  It is not the EASO report referred to expressly in the reasons.  It is the second‑last paragraph on that page, your Honour, that details the treatment that was available to the plaintiff in Mazar‑e‑Sharif.

HIS HONOUR:   Yes, I see, thank you.

MR KENNEALLY:   Critically, what the plaintiff says is that that showed that there was some access to medication.  There was unlikely access to psychotherapy and there were potentially issues about accessing people who could make decisions about that treatment, which all leads to the conclusion that it would have been open for a delegate to find that there was adequate treatment available for the plaintiff to control his condition.  That is not the plaintiff’s complaint.  The plaintiff’s complaint is that the delegate never considered that issue in relation to Mazar‑e‑Sharif and when reviewing the country information there was a real issue to be considered.

HIS HONOUR:   Yes.

MR KENNEALLY:   In terms, your Honour, of the plaintiff’s first ground, the first step I want to begin with is turning to the delegate’s reasons at page 125.  A critical passage which both parties place weight on is the delegate’s consideration of the country information, or conclusion as to the country information in the second‑last paragraph on that page.  It is the passage beginning, your Honour:

The EASO report advises that in general, Mazar‑e‑Sharif could be considered reasonable for a single able‑bodied adult man who have previously lived in Afghanistan, including where he has no support network in the internal relocation area.

The delegate goes on to emphasise that there would be hardships but applicants could achieve subsistence, shelter and hygiene subject to their individual circumstances and additional vulnerabilities. 

The plaintiff’s case is that having made those findings on the country information, the delegate then needed to turn to this plaintiff’s individual circumstances because that finding did not decisively conclude that he could reasonably relocate because he was able‑bodied.  It left open questions to be assessed, in particular his own circumstances and his vulnerabilities.  The delegate then makes the critical error in the first paragraph on page 126 in noting that the plaintiff had been employed and acquired financial means in Australia.

HIS HONOUR:   Yes.

MR KENNEALLY:   Those were, as I understand it to be accepted, not the plaintiff’s circumstances but rather the circumstances were as expressed in the protection visa application that he had not worked in Australia.

HIS HONOUR:   What appears from the visa application as I see it is under the heading “Current Employment” - “Unemployed”, then the rest of it, which was required to be filled out in full is effectively not filled out, but there is a reference elsewhere to having then spent five years as a shopkeeper in Iran.  Am I correct?

MR KENNEALLY:   Yes, your Honour.

HIS HONOUR:   That is the only evidence of employment available anywhere in the material before the delegate?

MR KENNEALLY:   Yes, your Honour.  That is my understanding from my review and I understand that to be – I will leave that to my learned friend to confirm that is a decision of the Minister as well.

HIS HONOUR:   Thank you.

MR KENNEALLY:   The issue then, your Honour, is whether this error is an error of fact within jurisdiction or whether it is an error of such significance that the statutory task to assess this plaintiff’s circumstances was not completed.  The plaintiff argues that the error around employment is that significant because, fundamentally, these were not the plaintiff’s circumstances that he had worked in Australia and they were given significant weight in the delegate’s conclusion.

In that first passage, your Honour, at page 126 where the delegate mentioned that the plaintiff has worked, it is the decisive reason for the delegate finding that the plaintiff could use the skills to find work and adapt in Mazar‑e‑Sharif.  The delegate gives that weight, in my submission, quite obviously because of the immediate recency of that experience and that demonstrated skill, but also the delegate expressly notes that it is given weight to the plaintiff finding work in Australia in the final sentence there because Mazar‑e‑Sharif in Afghanistan is a country with a culture more similar to the one that he grew up in. 

It is significant for two reasons.  Further to that, while there was evidence the plaintiff had worked in Iran, the delegate makes no express reference to that other experience.  The experience the delegate expressly weighs in its conclusion that he can work is his experience in Australia.

HIS HONOUR:   What do you get from the fact that the delegate does not refer to the employment in Iran?

MR KENNEALLY:   Only, your Honour, that it was not as significant as the employment in Australia, that the recent employment history in Australia, or the recent demonstration by the plaintiff that he could adapt and resettle in a new country was what the delegate gave the most significant weight for.  I do not submit that the employment in Iran was not considered at all.  I accept that it is captured in the fifth paragraph down, I believe, where there is a general reference to the plaintiff’s work history.

HIS HONOUR:   Yes.

MR KENNEALLY:   The second way, your Honour, in which this error was significant was in relation to the assessment of the plaintiff’s mental health.  The delegate identifies the mental health as an issue for relocation and the submission of the plaintiff is it is a matter that clearly emerged from the reasons because the delegate has identified it as a vulnerability and has then found, on the basis of treatment and the fact that the plaintiff has engaged in employment in Australia, that it would not be so significant to compromise or limit his resilience to relocate.

Given these two passages, your Honour, firstly that it is given significant weight in finding the plaintiff could work, and, secondly, that the employment error is significantly relied on to find that the plaintiff does not have a vulnerability, for those reasons it is not merely a peripheral error of fact, it is an error that as a result constructively led to the delegate not to assess this plaintiff’s individual circumstances, but effectively a different set of circumstances that bore no relation to his.

HIS HONOUR:   Yes.

MR KENNEALLY:   Briefly, your Honour, in relation to the Minister’s arguments regarding materiality, to some extent I have addressed them already by emphasising the significance of these matters relating to the employment.  The only two matters I wish to add are firstly, the Minister places weight on the facts that the delegate made a finding that an able‑bodied person – young male – could relocate even without a support network and that finding was enough to support the conclusion with his general history of having worked in Iran and travelled.

The plaintiff’s response is the delegate’s finding as to an able‑bodied male is the starting point of the analysis, not the end.  It sets the framework and that framework required consideration of whether this plaintiff was a candidate that could succeed in relocation and that required consideration of his circumstances and vulnerabilities and the error of fact fatally affected that consideration.

Secondly, your Honour, I add this is not a case on the reasons where it is overwhelmingly clear that there were separate and independent reasons for finding the plaintiff could relocate or it was overwhelmingly obvious the plaintiff could relocate to Mazar‑e‑Sharif.  He had not lived in Afghanistan since he was eight years old and the delegate accepted that there would be hardships.  For those reasons, in addition to what I have already said about the significance of the employment error, there was a possibility of a different result.

In relation, your Honour, to the second particular of ground 1, which is that the delegate failed to consider the impact of relocation on the plaintiff’s mental health – and I add that this in particular is effectively reframed in ground 3 as a failure to ask the right question, the argument is that the delegate’s consideration on the third paragraph down, at page 126 of the plaintiff’s affidavit, was the entirety of the submission regarding his mental health and it focused entirely looking backwards at his experience in Australia, that he had worked here and that he had received treatment here.

There is no evidence that the delegate then turned its mind to would he receive adequate treatment in Mazar‑e‑Sharif, and I emphasise the word “adequate” because this is not a case where the plaintiff argues that the delegate had to consider if the treatment was the same.  The delegate only had to consider if it was adequate to control the mental health such that it would not compromise the plaintiff’s capacity to find work, accommodation and resettle.

The Minister argues, your Honour, that the delegate implicitly considered this issue in its first paragraph of the assessment, which is the last paragraph on page 125.  The plaintiff’s response, your Honour, is threefold.  Firstly, this paragraph where the delegate finds that the applicant would be able to draw on the Hazara community in Mazar‑e‑Sharif for medical, education or work or other needs was a passage about whether it would be reasonable or practicable for the plaintiff not to leave Mazar‑e‑Sharif.

The delegate was considering would he need to travel from Mazar‑e‑Sharif to another city or province in Afghanistan to access basic services.  For that reason, it is submitted that all that finds is that there is a basic level of service in that city or province such that the plaintiff would not need to travel somewhere else to access services.  Secondly, the plaintiff argues that given the mental health was a significant vulnerability, that the paragraph where the delegate addresses it is the whole of its reasoning and, thirdly, and most importantly, it is argued that it was not an obvious finding that there would be adequate mental health treatment available in Mazar‑e‑Sharif. 

As I have already indicated to your Honour, we have put extracts of the country information before the delegate simply to demonstrate that there was some shortage of availability of services and some limitation on those services, that there was a question that required express reasoning from the delegate to either find that that treatment was adequate or, if it was not adequate, to still find that the plaintiff would be able to control his mental health condition.

HIS HONOUR:   Is this put upon the basis that although there was no submission put to the delegate to that effect, it was so obvious that the delegate had to do it?

MR KENNEALLY:   Yes, your Honour, and the basis upon which we put that submission that it was so obvious that the delegate had to do it is firstly that the delegate identified it as a vulnerability and, secondly, that the country information was so very clear that the standards in Afghanistan were not as high as Australia and, again, there was no need to make a finding about living standards but it was very obvious that there may be some disruption in the plaintiff’s treatment.

At the very least psychotherapy was not available at all – sorry, I should rephrase that, your Honour.  On the very least on the basis of the country information that I have reviewed there was no evidence

psychotherapy was available.  The delegate may have come to a different conclusion.

Those, your Honour, are the submissions in relation to ground 1.  In short it is submitted those two errors, in effect, resulted in the delegate not completing that statutory task, assessing this plaintiff’s circumstances and, in particular, in relation to mental health, assessing them in the place of relocation.

HIS HONOUR:   Yes.

MR KENNEALLY:   In relation to ground 2, your Honour, this is the argument that the delegate’s reasons were irrational and it focuses entirely on the employment error.  It is put on the basis, not that the ultimate conclusion that relocation was unreasonable – was irrational, but that a central and significant step in that reasoning process that the plaintiff had been working was irrational and therefore the state of satisfaction had not been rationally reached.  Unless there is anything further I can assist the Court with, your Honour, in relation to ground 2, those are the only submissions I wish to make on it.

HIS HONOUR:   Thank you, Mr Kenneally.

MR KENNEALLY:   Finally, your Honour, I have effectively addressed ground 3, which is that the delegate asked the wrong question in relation to relocation by focusing on mental health only in Australia and not asking the question about whether the plaintiff’s mental health would deteriorate due to lack of treatment in Mazar‑e‑Sharif. 

The only point I wish to add, your Honour, to that submission – I will add to that submission is that it is accepted that the delegate overall did identify the right question that a plaintiff’s circumstances have to be considered and they have to be considered in the place of relocation, but in relation to a significant part of that assessment, one of the issues, the wrong test was applied.  The focus was exclusively on the plaintiff’s mental health in Australia and because of the significance of that error, the delegate has effectively failed in total to ask the correct question.

Unless there is any matter I can assist the Court with further, your Honour, those are the submissions for the plaintiff.

HIS HONOUR:   Thank you very much, Mr Kenneally.  Mr Goodwin.

MR GOODWIN:   If the Court pleases.  Focusing on the substantive merits of the application, the plaintiff essentially attacks two issues that the delegate had regard to.  One is mental health concerns of the plaintiff suffered in Australia and the impact on those mental health concerns upon his return to Afghanistan, and the second is a finding of fact that the plaintiff was employed in Australia and the effect of that finding being an error of fact and whether that error of fact has affected the exercise of jurisdiction by the delegate.

The Minister submits in regards to the first issue that on a fair reading of the delegate’s decision, there was proper consideration of the issue of the plaintiff’s mental health concerns, referable both to the context in which it arose and the circumstances associated with return to Mazar‑e‑Sharif. 

In terms of the second issue, the Minister admits that the delegate made an erroneous finding of fact associated with the plaintiff being employed in Australia.  I think it is right to say that there was no evidence to support such a finding, particularly in light of the plaintiff’s visa application and the fact that he had said he had been unemployed during the period that he was in Australia. 

But the Minister submits two arguments in response.  First, the error of fact did not affect jurisdiction such to arise to the level of jurisdictional error, so in that respect it was simply a mere erroneous finding of fact and, second, in the alternative, that if it was – I should put it this way.  In the alternative, the error was immaterial such that it did not arise to jurisdictional error in that it could not have made a realistic difference to the outcome in light of the multifaceted and complex basis upon which the delegate considered the issue of relocation.

HIS HONOUR:   Yes.

MR GOODWIN:   If I can briefly speak to the issue of delay, your Honour, of course the plaintiff seeks an ‑ ‑ ‑

HIS HONOUR:   Just before you go to delay, on the first of those two principal arguments advanced by the Minister that the error of fact did not rise to the level of jurisdiction, would you accept that because it was…..finding of fact for which there was no evidence it was in truth an error of law?

MR GOODWIN:   I would not put it that highly, your Honour, because in my submission it did not affect the statutory task that the delegate was tasked with and, therefore, it did not arise to the level of an error of law despite there being no evidence to support it.  I do not think I could put it any more highly than that. 

HIS HONOUR:   I understand you say it was not sufficiently important to be…..but is not the position that a finding of fact for which there is notice is an error of law?  I have in mind, for example, Australian Broadcasting Tribunal v Bond.

MR GOODWIN:   Yes.  If that be so, and in that respect I would say that the error was an error of law so characterised was not one that arose to jurisdictional error primarily for the reasons that the Minister has outlined in the response, namely that it did not affect the jurisdiction of the delegate in the sense that it was not material to the delegate’s finding. So in that respect, if accepting that it is an error of law, then the Minister’s arguments on materiality really go to whether the error arises to one of jurisdiction.

HIS HONOUR:   Accepting that it is an error of law, the question of whether it is a jurisdictional error of law is then one of whether the legislation – this goes, I suppose, to the Migration Act, either explicitly or implicitly, or is that error, namely taking into account something for which there was no evidence and thus taking into account an irrelevant consideration, might it not be thought that it is implicit in the relevant provisions of the Migration Act that a delegate is, if you like, prohibited from taking into account irrelevant considerations?

MR GOODWIN:   Yes, I would accept that, your Honour, yes.

HIS HONOUR:   So when we come to the question of materiality, could it have made a difference if the delegate had not made that error and, given that the delegate has thrice, I think, referred to the man being employed in Australia and its significance as it portends for his ability to cope in Mazar‑e‑Sharif, it does not appear to be something that was at least capable of affecting the delegate’s decision?

MR GOODWIN:   Your Honour, I would highlight that in the context of the overall reasoning of the delegate, particularly in regard to the overall issues raised by the plaintiff in relation to the issue of relocation and the delegate’s consideration of relevant country information that was relevant on the basis that it spoke to the plaintiff’s actual personal circumstances and then assessed whether it was reasonable in the sense of practical for the plaintiff to return, in all those circumstances, the erroneous finding of fact did not have a material difference on the decision but rather, reading the decision as a whole and having regard to what the delegate had taken into account, specifically in regards to the plaintiff’s personal circumstances, notwithstanding the error of fact associated with the plaintiff’s employment in Australia, in the Minister’s submission it could not have made a difference to the outcome if the delegate had found that the plaintiff had not worked in Australia, but had been unemployed.  That is made out by the way that the delegate really deals with the issue. 

So focusing directly on this issue – focusing directly on the issue of the erroneous finding of fact, at page 16 of the delegate’s decision at page 124 of the affidavit, the delegate obviously turns their mind to the correct test in the first paragraph under “Relocation”, and then considers the plaintiff’s evidence on relocation and what he has raised in that regard, and your Honour will see from the fourth dot point from the bottom that the plaintiff stated that:

the job market is bad and unemployment is high, particularly for youth -

Then, turning over the page at page 125, the delegate takes into account a number of matters.  The first point is that he is an “adult male of working age”.  The second and third dot points relate to travelling by himself to Indonesia and by himself to Afghanistan and from Indonesia.  The fifth dot point is that the plaintiff:

has never lived in Mazar‑e‑Sharif and has not disclosed any family or friends who live there –

Then the seventh dot point is that the plaintiff:

has mental health concerns, namely depression –

then that the plaintiff:

has undertaken a major trip to Australia by himself –

and then the erroneous finding of fact that the plaintiff:

has gained employment in Australia. 

All of those factors were considered in terms of the personal circumstances of the plaintiff and that is important because essentially the delegate is taking a holistic view of the plaintiff’s personal circumstances in reaching its ultimate conclusion. 

Importantly, the delegate then goes on to consider the specific circumstances associated with return to Mazar‑e‑Sharif, and the delegate has had regard to what it describes as the following elements, and these include the availability of basic infrastructure such as, in the second subpoint, “basic health care”.  I just note that in response to the issue on mental health concerns.  Then in the final subpoint:

the availability of basic subsistence that ensures access to food hygiene and shelter such as through employment, existing financial means, or support by a network -

Then the delegate goes on to say:

In assessing the above, I have considered the [EASO report].  This report provides an assessment of the conditions in Mazar‑e‑Sharif and it addresses each of the above‑mentioned elements in relation to Mazar‑e‑Sharif as a relocation area.

Then there is a description of the EASO report that advises that relocation could be considered reasonable to Mazar‑e‑Sharif:

for a single able‑bodied adult man who have previously lived in Afghanistan, including where he has no support network in the internal relocation area.  Although the situation will entail certain hardships, it can still be concluded that such applicants will be enable to ensure their basic subsistence -

So that is directly referable - the idea of basis subsistence is referable to issues including employment.  So it is clear that the delegate is essentially taking the approach of considering what the plaintiff has raised in respect of the potential hardships of his return, his personal circumstances or characteristics that must be taken into account, and a number of things are relevant in that respect and then what the country information shows about the circumstances in Mazar‑e‑Sharif.  It is taking into account all those matters at that point the delegate sets out the assessment of whether the plaintiff – or whether it is reasonable for the plaintiff to return to Mazar‑e‑Sharif.  So it is in that context that the assessment must be read.

So, turning then to the assessment, the delegate highlights that job opportunities in Afghanistan are limited, but states that while these factors may make it more difficult to find employment, the delegate is not satisfied this would make it unreasonable for him to relocate to this area to avoid harm, that he may need to draw upon the Hazara community for support. 

It is then at that point over the page at 125 that the delegate highlights a number of issues that are directly referable to both his personal circumstances as well as the country information that the delegate is taking into account, but particularly the EASO report.  The delegate highlights that the plaintiff:

is of working age which would assist in his access to basic subsistence, in particular with regard to the opportunity to engage in employment.

He is single, does not have any dependants, he is educated, and then it is at that point that the delegate mentions that he:

has demonstrated an independent ability to acquire financial means in Australia –

So the Minister accepts that the matter was taken into account.  It is clear on the reasons of the delegate that the delegate did have regard to the erroneous finding of fact.  Notwithstanding that, reading the delegate’s decision as a whole, there are a number of issues that have been taken into account referable to the country information that has been taken into account regarding the circumstances in Mazar‑e‑Sharif, and the headline of that country information really was that single able‑bodied men who have previously lived in Afghanistan would be able to relocate despite not having the types of social supports that one might expect someone to have. 

So in that sense of that global picture, the delegate is clearly considering the personal circumstances of the plaintiff in that context and, while taking into account the erroneous finding that the plaintiff has worked in Australia, that would not have made a difference to the ultimate outcome because of the nature of the delegate’s reasoning in that more general context associated with country information it had about who could – about the type of person for which it was reasonable for them to return, and then applying that particular profile, so to speak, to the plaintiff’s personal circumstances and finding that overwhelmingly the plaintiff met that profile.

HIS HONOUR:   Mr Goodwin, does the EASO report’s use for the adjective “able‑bodied” assume sound mental condition?

MR GOODWIN:   I would not read it that finely.  I think in terms of able‑bodied, I think that essentially means a physical capacity to work.  I do note, in fairness, that the delegate highlights that - and this is on page 125 in the final paragraph just above “Assessment” that applicants will be able to:

entail certain hardships . . . taking into account that their individual circumstances do not pose additional vulnerabilities.

It might be that the comment regarding…..would capture potential mental health concerns, and I think that is probably the more appropriate way to put it in terms of the findings of the EASO report.

HIS HONOUR:   That is to say that it is assumed that someone who is able‑bodied is of sound mental condition?

MR GOODWIN:   Well, it is ‑ ‑ ‑

HIS HONOUR:   Mens sana in corpore sano.

MR GOODWIN:   Yes, at least on a holistic view that there was – that mental health concerns would have been relevant to consideration of whether it was ‑ ‑ ‑

HIS HONOUR:   An able‑bodied ‑ ‑ ‑

MR GOODWIN:   Whether a person was able to – whether it was reasonable for a person to relocate.

HIS HONOUR:   Fair enough, thank you.  …..I think from delay.

MR GOODWIN:   Your Honour, those issues are really the more important ones, so I am glad for the opportunity to make submissions on the issue.  Perhaps I will come to delay at the very end, your Honour, in respect of the issues that are being raised, and focus now on substantive merit and just say something very briefly on delay at the very end.

Finally, in terms of looking at the delegate’s decision - because I think really it is a point of reading of the delegate’s decision that either the plaintiff or the Minister succeeds.  So, just to follow through on the delegate’s reasoning process, the delegate mentions – this is on page 126 in the second complete paragraph – that the delegate acknowledges that the applicant has mental health concerns but:

that they have not impacted on his ability to engage in employment in Australia and he has sought treatment for these conditions.

So it is at that point again that the issue of employment is taken into account.  Then the delegate finds that the plaintiff:

does not suffer from any serious health condition which would impact on his ability to subsist in Mazar‑e‑Sharif. 

Then again the delegate takes into account a number of personal circumstances that do go to generally the issue of his ability to subsist, including to have financial means of supporting himself, and there are a number of factors taken into account.  I will not labour all of them, but your Honour can see that even though the plaintiff had not resided in Afghanistan since he was eight years old, he had returned and independently travelled to Iraq on a number of occasions and to Indonesia, again referable to the EASO report that:

it can be presumed that an Afghan national who previously lived in Afghanistan will have sufficient local knowledge which would enable him to reasonably settle in Mazar‑e‑Sharif, even without a support network and given his international travel history, the applicant has a demonstrated capacity to look after himself and live independently.

Then it is clear that, in the critical paragraph, the delegate again is holistically considering the plaintiff’s circumstances, including his age, gender, religion, and vulnerabilities, and finds that the applicant:

could utilise his skills, work experience and life experience gained from his youth spent in Afghanistan, international travel, education and work history to seek work opportunities on his return to Afghanistan.  I also note the applicant has identity documents which will assist him to establish employment and accommodation in Mazar-e-Sharif.

So it is clear that there has been a whole range of issues taken into account, an extensive range of issues taken into account, in determining whether the plaintiff could seek work opportunities upon his return to Afghanistan, which includes his education, his skills, his work experience more generally, which I submit would encompass, and I think my learned friend accepted, would encompass his work experience in Iran, his international travel, which was directly related to his capacity to live independently and support himself, and all of those issues have been taken into account.

Now, the Minister accepts that one of the findings of fact taken into account is the applicant’s employment in Australia, for which there was no evidence to support that finding, but despite that, reading it as a whole, and considering the way in which the delegate reasoned to their ultimate outcome meant that that particular finding was not significant, and immaterial to the ultimate exercise of jurisdiction that the delegate was tasked with, namely, to consider whether it was reasonable, in the sense of practicable, for the plaintiff to return to Afghanistan. 

Your Honour, that really deals with at least what the Minister submits in regard to the issue of the plaintiff’s employment in Australia.  If I can then turn to the issue of the mental health concerns of the plaintiff, there are a number of issues to take into account in considering whether the delegate erred in considering the mental health concerns of the plaintiff. 

It is first important to note that the plaintiff did not raise the issue expressly as one that would affect his capacity or that suggested it was unreasonable for him to relocate to Mazar-e-Sharif.  The second issue is that the evidence on the issue of the plaintiff’s mental health concerns was limited and raised in a very specific context, and I say that because it was not raised in the context of any sense of hardship associated with a return to Mazar-e-Sharif, but for different reasons. 

If your Honour goes to page 51 of the plaintiff’s materials, which should be a statutory declaration of the plaintiff.  At paragraph 9 of that statement at the bottom of the page, the plaintiff mentions his marital relationship, and that, in the final sentence, over the page, on page 52, that since his arrival in Australia and until his separation, he has been subjected to many forms of emotional, psychological, and physical abuse, and then, in the next paragraph, as a result of that abuse he has sought professional assistance from a psychologist, and the psychologist is currently preparing a report for the department.  Then, if your Honour goes to page 61 of the plaintiff’s materials.

HIS HONOUR:   Yes.

MR GOODWIN:   There is then a psychologist report.  It is unclear whether it is the one referred to by the plaintiff, but that is unlikely because I believe ‑ ‑ ‑ 

HIS HONOUR:   Mr Goodwin?

MR GOODWIN:   …..his application.  Yes, your Honour?

HIS HONOUR:   I am sorry, your sound dropped out for a moment.  You are back on again, thank you.

MR GOODWIN:   My apologies, your Honour, I will make sure I am speaking clearly.  So it is unclear whether this - well, it is unlikely that this report was the report referred to that would eventually be provided to the Department by the plaintiff because I believe all of this material was supplied as part of the visa application, but in any event it goes to what was raised, and again you will see from this report dated 13 April 2017, if your Honour goes down to the third line, it states that:

Clinical assessment indicated that he suffered a significant depressive condition and high levels of emotional stress and anxiety.  He reported that he had been married 1 month before . . . He reported that the dominant causal factor in his psychological distress was the pressure, conflict and uncertainty that he felt in his marital relationship.

So again, it is in that context in which the issue is being raised.  Then again, on the next page, on page 62, there is a medical certificate that states that the plaintiff is suffering from:

depression and anxiety because of family issues and spouse abuse.

So, again, the issue is being considered in that very specific context associated with the plaintiff’s marital relationship.  The final reference I wanted to take your Honour to was in exhibit SAJ‑2, which is the post‑hearing submissions, which commence at page 69 of the material.  You can see at the very bottom of that page and then going over to page 70 that it is really just a recitation of the plaintiff’s own evidence in regards to the nature of his mental health concerns and the context in which they arose.

So it is really in that context that the delegate is considering the issue, that it has not been raised as an issue of hardship upon return but arises from the circumstances of the plaintiff’s marital relationship and so that is relevant to, I suppose, how the delegate should be expected, in exercising their jurisdiction, to consider the issue of the plaintiff’s mental health concerns in regards to whether it is reasonable to expect him to return.  It is really in the context of taking into account the plaintiff’s own personal circumstances.

Then again, and without going into detail as I have already done in terms of the delegate’s decision, I simply note that at page 125, at page 17 of the delegate’s decision, there is a consideration, or it is made clear by the delegate, that there is consideration of the healthcare available in Mazar-e Sharif - this is in the middle of the page in terms of the dot points under “In assessing whether it is reasonable to expect the applicant to settle in Mazar-e Sharif”, and is directly a consideration of the availability of basic infrastructure such as “basic health care”.

Then again, after that, there is a direct reference to the EASO report, “In assessing the above”, including the availability of “basic health care”, so it is incorrect to state that the delegate had no consideration of the country information that went to that issue, and that must include, in considering the issue of basic healthcare, the material that is being exhibited to the plaintiff’s solicitor’s affidavit in this matter.

So there has been a turning of the mind to the adequacy of care in Mazar‑e Sharif and then in determining the actual consideration there is - turning to the actual assessment of the issue the delegate acknowledges, on page 126, the mental health concerns of the plaintiff, and then states that it has:

not impacted on his ability to engage in employment in Australia and he has sought treatment for these conditions.

So in my submission, really, if this issue is to be attacked, it must be on the basis of the erroneous finding of fact associated with the ability to engage in employment in Australia rather than, as an independent issue, because it is clear that the delegate generally considered, or adequately considered, the…..mental health concerns when reading the decision of the delegate in context, and there were a number of other issues taken into account, including the support of the Hazara community in regards to accessing mental healthcare, or accessing healthcare, I should say. 

So considering all of those matters, the delegate properly exercised its jurisdiction in relation to the particular issue of the mental health concerns of the plaintiff.

HIS HONOUR:   Just in passing, you refer to the delegate as “it”.  Is it a man or a woman?

MR GOODWIN:   I am not too sure, your Honour.  That is partly why I have used the pronoun “they”.

HIS HONOUR:   …..

MR GOODWIN:   You can see on page 19 of the delegate’s decision on page 127 that the delegate’s name is “Centaine”, and I have not taken the leap to guess at the gender of the name “Centaine”, your Honour.

HIS HONOUR:   Assuming that is not a surname.

MR GOODWIN:   Yes, exactly, your Honour.  Those are the matters I wanted to raise in relation to the substantive merits, unless your Honour has any particular questions.

HIS HONOUR:   No, thank you. 

MR GOODWIN:   The only - very briefly on delay, your Honour, I note that the plaintiff’s affidavit generally sets out an explanation for the delay, and the Minister does not seek to impugn any of that evidence.  All that the Minister refers to in regard to delay is that the fact of the delay, which is significant at least in terms of its time being just over or around about a year’s delay, that on that basis the case should really be an exceptional one in respect - following the decision of Justice McHugh in Marks.  So it is really in that context that the substantive merits of the application should be considered.  That is all I wanted to say on delay, your Honour.

HIS HONOUR:   Thank you very much, Mr Goodwin.

MR GOODWIN:   Thank you.  Those are submissions of the Minister.

HIS HONOUR:   Mr Kenneally, is there any reply?

MR KENNEALLY:   Your Honour, the first point I wish to respond to is in relation to the holistic assessment, or the conclusory assessment of the delegate at page 126 of the plaintiff’s material.  This is the passage, your Honour, that begins with:

Having regard to the circumstances that the applicant as listed above including his age, gender, religion and vulnerabilities I find the applicant could utilise his skills, work experience and life experience gained from his youth spent in Afghanistan, international travel, education and work history to seek work opportunities on his return in Afghanistan.

The plaintiff’s submission, your Honour, is that reasoning and the recitation of those factors cannot be separated from the finding that the plaintiff had applied those skills and those experiences in Australia and obtained employment.  That was the critical evidence, that was critical evidence that the plaintiff could resettle in a foreign country and the delegate expressly stated that it had found that. 

But also note that the plaintiff’s capacity to resettle in Australia is the only country he had resettled in as an adult.  He had moved to Iran in 1999 and it is in that context he had obtained employment in Iran.  So the only evidence that he had been able to exercise these skills and experience was the delegate’s erroneous assumption that he had done so in Australia.  Unless there is anything further I can assist with, your Honour, those are the only submissions in reply for the plaintiff.  If the Court pleases.

HIS HONOUR:   Thank you, Mr Kenneally. 

Gentlemen, I propose to reserve my decision.  I am grateful to counsel for their assistance.  As you would appreciate, I need to get the decision out fairly quickly because very shortly I shall no longer be here.

Adjourn now sine die.

AT 10.32 AM THE MATTER WAS ADJOURNED