RZMW v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 164
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
RZMW v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 164
File number(s): PEG 12 of 2021 Judgment of: JUDGE LUCEV Date of judgment: 14 March 2022 Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – Protection (Class XA) (Subclass 866) visa – citizen of Liberia – mental illness – provision of medication to applicant in Liberia – whether a misdirection of law – whether significant harm requires intention on the part of the government – whether a denial of procedural fairness – whether failure to put suggestion that medication might be sent to Liberia from Australia – whether misapplication of reasonably foreseeable future test – whether consideration of the nature of remission in mental illness – whether jurisdictional error
WORDS & PHRASES – “non-government actors” – “reasonably foreseeable future” – “remission”
Legislation: Migration Act 1958 (Cth) ss 5, 5H, 5J, 36, 357A, 359A, 360, 422B, 424A, 425, 476, 477, 501, 501CA Cases cited: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88; (2005) 80 ALJR 228; (2005) 222 ALR 411; (2005) 87 ALD 512
ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630
CPE15 v Minister for Immigration and Border Protection [2017] FCA 591
Degning v Minister for Home Affairs [2019] FCAFC 67; (2019) 270 FCR 451
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321
DSA16 v Minister for Immigration & Anor [2019] FCCA 1196
Hempenstall v Minister for Home Affairs [2020] FCAFC 216
Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315
Khan v Minister for Immigration and Citizenship [2011] FCAFC 21; (2011) 192 FCR 173
Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1
Minister for Home Affairs v Smith [2019] FCAFC 137
Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640
Minister for Immigration & Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181
Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration & Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1; (2004) 78 ALJR 678; (2004) 205 ALR 487; (2004) 77 ALD 296
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Minister for Immigration and Border Protection v CED16 [2020] HCA 24; (2020) 94 ALJR 706; (2020) 380 ALR 216
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 75 AAR 75; (2019) 363 ALR 599; (2019) 163 ALD 38
Minister for Immigration and Border Protection v Tran [2015] FCA 546; (2015) 232 FCR 540; (2015) 150 ALD 446
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15
Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507; (2009) 83 ALJR 1029; (2009) 258 ALR 448
Minister for Immigration and Citizenship v SZMDS and Anor [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248
Minister for Immigration and Ethnic Affairs v Guo & Anor [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481
Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14; (2002) 210 CLR 1; (2002) 76 ALJR 667; (2002) 187 ALR 574; (2002) 67 ALD 577
Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1; (2003) 195 ALR 502
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585
MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478
MZYFH v Minister for Immigration and Citizenship [2010] FCA 559; (2010) 188 FCR 151; (2010) 115 ALD 409
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27
NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 84 ALJR 507; (2010) 267 ALR 204; (2010) 115 ALD 493
SBZF v Minister for Immigration and Citizenship [2008] FCA 1486; (2008) 104 ALD 415
Singh v Minister for Home Affairs [2019] FCAFC 3
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1
SZHFX v Minister for Immigration and Citizenship [2008] FCA 726; (2008) 102 ALD 307
SZHZD v Minister for Immigration and Multicultural Affairs [2008] FMCA 4
SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486
SZNBX v Minister for Immigration and Citizenship [2009] FCA 1403; (2009) 112 ALD 475
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362; (2017) 91 ALJR 936; (2017) 347 ALR 405
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965
WZAVQ v Minister for Immigration and Border Protection [2016] FCA 188
Yang v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 258; (2003) 132 FCR 571
Texts and dictionaries: American Psychiatric Association (2013) Diagnostic and Statistical Manual of Mental Disorders: DSM-5. 5th edn. Washington, D.C.: American Psychiatric Publishing, Schizophrenia – Diagnostic Criteria
Macquarie Dictionary: "remission" Macquarie Dictionary, Macquarie Dictionary Publishers, 2022, Web, 14 February 2022
Oxford Dictionary Online: "remission, n." OED Online, Oxford University Press, December 2021, Web, 14 February 2022
The Oxford English Dictionary, Second Edition (Oxford: Clarendon Press, 1989), Vol 1
Division: Division 2 General Federal Law Number of paragraphs: 97 Date of last submission/s: 7 May 2021 Date of hearing: 7 May 2021 Place: Perth Counsel for the Applicant: Ms E. Buzo Solicitor for the Applicant: Hearn Legal Counsel for the First Respondent: Mr B. Kaplan Solicitor for the First Respondent: Sparke Helmore For the Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 12 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RZMW
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
14 MARCH 2022
THE COURT ORDERS THAT:
1.Pursuant to s 477(2) of the Migration Act 1958 (Cth) the time in which to file the applicant’s originating application for judicial review under s 476 of the Migration Act 1958 (Cth) be extended to 18 January 2021.
2.The originating application filed 18 January 2021, as amended by an amended originating application filed 15 March 2021, and as further amended by a further amended originating application filed 20 April 2021, be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
On 18 January 2021 the applicant, RZMW, filed an application for judicial review (“Judicial Review Application”) pursuant to s 476 of the Migration Act 1958 (Cth) (“Migration Act”) in respect of a decision of the Administrative Appeals Tribunal made on 16 September 2020 (“Tribunal Decision” and “Tribunal” respectively”). The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), to refuse to grant RZMW a Protection (Class XA) (Subclass 866) visa (“Protection Visa”).
On 15 March 2021 RZMW filed an Amended Judicial Review Application. On 20 April 2021 RZMW filed a Further Amended Judicial Review Application (“Further Amended Judicial Review Application”). The Further Amended Judicial Review Application contains an application for an extension of time (“Extension of Time Application”) in which to file the Judicial Review Application.
EXTENSION OF TIME APPLICATION
The Minister does not oppose the Extension of Time Application. The relevant principles with respect to the grant of an extension of time are uncontroversial: see Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315 and SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ. Having particular regard to:
(a)the Minister’s lack of opposition to the Extension of Time Application, from which it can be implied that the Minister suffers no prejudice by the grant of an extension of time;
(b)RZMW endeavouring, unsuccessfully, to file a judicial review application prior to time expiring;
(c)RZMW taking immediate steps to remedy the failure to file on time as soon as he became aware of the failure; and
(d)the fact that it is evident, at a reasonably impressionistic level, that the Further Judicial Review Application is reasonably arguable: SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [48] and [102] per Wigney J (from which an appeal was dismissed: SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158) and MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62] per Mortimer J (in a passage expressly approved by the Full Court of the Federal Court in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478 at [38] per Tracey, Perry and Charlesworth JJ),
the Court is satisfied that it is in the interests of the administration of justice to grant the Extension of Time Application: Migration Act, s 477(2). There will therefore be an order that the time for the filing of the Judicial Review Application be extended to 18 January 2021.
FURTHER JUDICIAL REVIEW APPLICATION
The three grounds of review in the Further Judicial Review Application are set out below at paragraphs [9] (ground 1), [42] (ground 2), and [64] (ground 3).
Background to the Further Amended Judicial Review Application
The relevant background to the Further Amended Judicial Review Application is as follows:
(a)RZMW was born in Liberia and in 2004, arrived in Australia as a dependent on his mother’s Refugee (Offshore) XB-200 visa (“Offshore Refugee Visa”): Court Book (“CB”) 256 at [1];
(b)on 13 February 2017 RZMW’s Offshore Refugee Visa was mandatorily cancelled under s 501(3A) of the Migration Act on the basis that he had been sentenced to a term of imprisonment of more than 12 months and was serving a full-time term of imprisonment: CB 256 at [1];
(c)RZMW applied for a revocation of the cancellation, but the revocation application was refused by the Department of Home Affairs, and that refusal was affirmed by the Tribunal (differently constituted) on 11 December 2018: CB 256 at [1];
(d)on 21 May 2020 RZMW applied for the Protection Visa: CB 256 at [3];
(e)RZMW’s protection claims arose from his experience as a child soldier in a civil war in Liberia, and, broadly put, those claims were as follows:
(i)his father was killed in front of him and he was taken by the rebels and trained as a child soldier, during which time he was cared for by the wife or girlfriend of the rebel’s grand commander: CB 260-261 at [48]-[58];
(ii)to escape the rebels, he killed the grand commander and escaped with the help of the grand commander’s wife or girlfriend, and he believes there are still people looking for him who would recognise him and seek revenge for his killing the grand commander: CB 261 at [51] and [54]; and
(iii)he is at risk due to his poor mental health, and Liberia does not have adequate medical facilities to care for him: CB 263-264 at [68]-[70];
(f)the Delegate’s Decision on 10 June 2020 was to refuse RZMW a Protection Visa: CB 205-213; and
(g)the Tribunal Decision on 16 December 2020 was to affirm the Delegate’s Decision to refuse RZMW a Protection Visa: CB 255-298.
Jurisdictional error required
The Tribunal Decision may be set aside on judicial review on the basis of jurisdictional error where the Tribunal identifies a wrong issue, asks the wrong question, ignores relevant material or relies on irrelevant material in a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, authority or powers given to the Tribunal under the Migration Act:Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”) at [32]-[33] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ, as may unreasonableness: as to which see Minister for Immigration & Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181, and the summary in Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 at [41] per Wigney J.
The Court has no jurisdiction to engage in merits review, and the Tribunal’s fact-finding is not reviewable by this Court if the findings of fact were open to the Tribunal, and otherwise made in accordance with the law: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ; Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”), CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. The weight to be given to an applicant's claims and evidence is a matter for the Tribunal to assess as part of its fact-finding function: Wu Shan Liang, CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Ground 1
Ground 1 of the Further Amended Judicial Review Application is as follows (with underlining as in the original and footnotes inserted into the text in square brackets):
Misdirection of law- The tribunal erred amounting to a misdirection of law in stating that the significant harm required the intention on behalf of the government.
Particulars
•The Tribunal stated:
The Tribunal is not satisfied therefore that there is a real risk of arbitrary deprivation of life (which requires some deliberate act, rather than the consequences of scarce medical resources, MZAAJ v MIBP [2015] FCCA (Judge Riley, 4 February 2015), or of cruel or inhuman treatment or punishment; or of degrading treatment or punishment, which require intention on behalf of the government, or of the other kinds of significant harm. [AAT Decision at [183]];
•The Tribunal also stated:
There is no information to suggest that the applicant would be denied these services by the government for any of the reasons set out in the legislation even if he did seek out services in the occasional and ad-hoc manner he has done so in Australia. [AAT Decision at [156]]
•The Act at s 36 defines significant harm as:
(2A) A non-citizen will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
•The Act does not specify that the serious harm must come from the government. The Tribunal has incorrectly applied the law by limiting its assessment only to denial of services by the government, and failed to consider possible harm from denial of services from non-government actors.
Given that the Further Amended Judicial Review Application is the third filed version of a judicial review application under s 476 of the Migration Act, ground 1 is not felicitously drafted. What it seems to be asserting, and this is consistent with the manner in which it was argued, is that the Tribunal made a jurisdictional error by failing to consider a claim made by RZMW that he might suffer harm by reason of a denial of services by non-government actors if he were to return to Liberia, and erred in law in limiting its consideration of RZMW’s claim only to a denial of services by the Liberian government. (Save for when it is directly quoting from another source, the Court has used the phrase “non-government actor” rather than “non-state actor” in these Reasons for Judgment.)
RZMW’s submissions
In relation to ground 1, RZMW’s written and oral submissions were that:
(a)the Migration Act does not specify that the serious harm must come from government sources, and the Tribunal incorrectly applied the law by limiting its assessment only to a denial of services by the government of Liberia, and by failing to consider possible harm from denial of services from non-government actors;
(b)the Tribunal was also required to consider the possibility of non-government actors engaging in cruel or inhuman treatment on the grounds of RZMW’s mental illness, and whether there was possible tolerance of that treatment including “whether the failure resulted from a state policy of tolerance or condonation of the persecution, or whether it resulted from inability to do anything about it.”: Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14; (2002) 210 CLR 1; (2002) 76 ALJR 667; (2002) 187 ALR 574; (2002) 67 ALD 577 (“Khawar”) at [29] per Gleeson CJ (emphasis in written submissions);
(c)RZMW expressly submitted to the Tribunal: CB 276 at [113], that:
“I strongly feel that Liberia does not have the support and medical care or assistance that I need for helping me with my mental state and my hand condition and I strongly feel that this will make my conditions worse.”
(d)at no point did RZMW limit his claim to that of the Liberian government intentionally withholding treatment, and, therefore, no occasion arose for the Tribunal to so limit its inquiry, and the Minister is incorrect in submitting that no occasion arose for the Tribunal to address the possibility of non-government actors engaging in cruel or inhuman treatment;
(e)it was not RZMW’s claim that he feared the Liberian government would not provide him with adequate medical services; rather, his claim was generalised and not specifically limited to the conduct of the Liberian government;
(f)it was the Tribunal’s “responsibility to demonstrate why … [the] gap between the absence of resources and the state intention is not caused by, inevitably, a non-state actor.”: Transcript at 4;
(g)based on the information before it, the Tribunal was aware that:
(i)Liberia has an inadequate healthcare system: “clearly the health system generally in Liberia suffers from under-resourcing, reflective of the state of the economy in the country”: CB 284 at [151];
(ii)individuals with mental illness, as a particular social group, are highly stigmatised and face discrimination in Liberia: CB 284 at [150], and therefore denial of health services is not a fanciful fear posed by RZMW, because on the information before the Tribunal it appears almost inevitable that RZMW will not be able to access sufficient medical treatment in Liberia;
(h)it is insufficient at law for the Tribunal to limit its inquiry into denial of services based upon the intention of the Liberian government as “persecution may also result from the combined effect of the conduct of private individuals and the state or its agents”: Khawar at [30] per Gleeson CJ. The Liberian government’s intention did not explain the lack of access to health care, and the Tribunal, therefore, had no reason to end the inquiry at government intention and was required to consider if that lack of access could be a result of persecution by non-government actors; and
(i)the Minister highlighted the Tribunal’s statement that “any difficulties with availability are due to funding only”: CB 292 at [183]. Lack of funding is not an outcome in itself and does not complete the task of assessing whether persecution exists. Persecution could be a consequence of a lack of funding. For example, lack of funding could mean that untrained or insufficiently trained healthcare workers, who hold discriminatory views towards people with mental illness, are employed and treat mental health issues in a cruel and inhumane way.
Minister’s submissions
In relation to ground 1, the Minister submitted that:
(a)the Tribunal’s focus at CB 286 at [156] was on the availability of mental health services provided by the Liberian government in Liberia. This part of the Tribunal Decision concerns the question as to whether RZMW would face a real chance of serious harm “for reasons of his membership of the particular social group of persons with mental health issues, or a similar group, on the basis of lack of availability of treatment and/or ostracism and other ill-treatment”: CB 283 at [149]. The nature of the claim under consideration explains the Tribunal’s references to “the government” at CB 286 at [156];
(b)the Tribunal’s reasons at CB 286 at [156] were not concerned with the definition of “significant harm” in s 36(2A) of the Migration Act nor the complementary protection criterion for the grant of a Protection Visa in s 36(2)(aa) of the Migration Act. The reasoning in the Tribunal Decision with respect to complementary protection appears at CB 291-293 at [179]-[187];
(c)the Tribunal’s focus on intention on behalf of the Liberian government in the final sentence in CB 292 at [183] is explained by the fact that that paragraph was directed to the question as to whether the Tribunal had substantial grounds for believing that, as a necessary and foreseeable consequence of RZMW being removed from Australia to Liberia, there is a real risk that he will suffer significant harm by reason of the government not adequately providing medical services to Liberian citizens such as RZMW, and therefore, given that the subject-matter of the reasons in the Tribunal Decision at CB 286 at [156] and 292 at [183] was the adequacy of medical services provided by the Liberian government, no occasion arose for it to address “the possibility of non-state actors engaging in cruel or inhuman treatment”;
(d)when the relevant paragraphs in the Tribunal Decision are read as a whole and in context it is apparent that the Tribunal has not limited its assessment to only denial of services by the Liberian government. The focus at CB 286 at [156] was on the availability and development of mental health services by the Liberian government in Liberia, and it also contemplates whether a denial of services could be attributed to RZMW belonging to a particular social group of people with mental health issues, the Tribunal finding no such intention on the behalf of the Liberian government;
(e)the claim (in relation to Liberian non-government actors) did not arise, and therefore was not required to be considered: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 (“NABE (No 2)”) at [60]-[61] per Black CJ, French and Selway JJ, and nor was there any obligation on the Tribunal to make general inquiries, as this is not a case that engages the very limited circumstances in which the Tribunal might be required to make obvious inquiries in relation to easily ascertainable critical facts: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15 (“SZIAI”) at [25]-[27] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ;
(f)it is apparent on the material before the Tribunal that the provision of medical care in Liberia is the responsibility of the Liberian Ministry of Health, which also facilitates the provision of such services by non-government organisations (“NGOs”), see, for example:
(i)at CB 211 fourth paragraph in the Delegate’s Decision there is a reference to health systems strengthening being a key priority for Liberia’s Ministry of Health and Social Welfare since 2006;
(ii)at CB 211 fifth paragraph in the Delegate’s Decision there is a reference to Liberia’s health policy, and towards the end of that fifth paragraph it is said that local and international NGOs have been working with Liberia’s Ministry of Health and Social Welfare; and
(iii)in the Tribunal Decision there are similar references at CB 283-285 at [150]- [151], 286 at [156] and 287 at [159],
and it was in that context that the Tribunal made its findings at CB 286 at [156] that the material did not reveal that RZMW would be denied these medical services by the Liberian government for any of the reasons set out in the Migration Act, those services including the provision of mental health services, which it was said, at CB 286 at [156], that the Liberian government had demonstrated commitment to improvement, through, for example, the Ministry of Health mental health policy and strategic plan 2016 to 2021. The same may be said about the Tribunal’s complementary protection findings at CB 292 at [183];
(g)there was no material before the Tribunal, and RZMW has not pointed to any, that would suggest that a non-government actor, such as, for example, a militant organisation, was responsible for the provision of healthcare services in Liberia, such that a question might have arisen as to whether RZMW had a well-founded fear of persecution or a question as to whether RZMW will suffer significant harm, and therefore requires complementary protection on account of an organisation of that kind depriving him of the medical services that he claimed he needed. Again, the same may be said about the Tribunal’s complementary protection findings at CB 292 at [183];
(h)RZMW raised no claim concerning possible harm from the denial of medical (including mental health) services from non-government actors in Liberia, and further, there was no evidence produced to the Tribunal that would lead it to consider this claim. No submission was made, and no evidence was proffered in support of the unmade submission, to the effect that RZMW had a well-founded fear of persecution by reason of the deprivation of medical care and services that would otherwise be provided by persons or bodies other than the Liberian government. In those circumstances, the Tribunal was not required to consider any claim in relation to the provision of mental health services by non-government actors in Liberia;
(i)in relation to the Tribunal’s reference to intention at CB 292 at [183], that is, that the Tribunal was not satisfied that the Liberian government would intentionally withhold services or medication from RZMW and that any difficulties with availability are due to funding only, the importance of there being an intention to harm a person in order to engage the complementary protection provisions is addressed in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362; (2017) 91 ALJR 936; (2017) 347 ALR 405 (“SZTAL”); and
(j)Khawar is not apt as it was decided nine years prior to the enactment of the complementary protection provisions in ss 5 and 36(2)(aa) and (2A) of the Migration Act. Complementary protection requires intention on behalf of the asserted agents of harm. Stigmatisation and discrimination are dealt with in the Tribunal Decision at CB 287-288 at [161]-[166], but those parts of the Tribunal Decision form no part of this ground of review, because CB 286 at [156], which RZMW attacks, does not concern stigmatisation, but rather the availability of medical services in Liberia.
Consideration of ground 1
Considering an applicant’s claim
It is well established that failure to consider an integer of an applicant’s claim may constitute jurisdictional error where that claim relates to a mandatorily relevant criterion under the Migration Act: Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 (“Dranichnikov”) at [24]-[25] per Gummow and Callinan JJ; Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 at [42] per Allsop J. In Htun at [42] per Allsop J, it was said that “[t]o make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on”.
The Full Court of the Federal Court in Singh v Minister for Home Affairs [2019] FCAFC 3 at [34] per Reeves, O’Callaghan and Thawley JJ observed as follows:
…a Tribunal charged with “review” may commit jurisdictional error in failing to exercise the jurisdiction it was contemplated it would exercise, if – for example – it does not engage in an active intellectual process or give proper, genuine and realistic consideration to:
•a “substantial, clearly articulated argument relying upon established facts” – see: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ, with whom Hayne J agreed;
•a claim “raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review” – see: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [63] per Black CJ and French and Selway JJ; or
•a matter “that is an essential integer to an applicant’s claim or that would be dispositive of the review” – see: ETA067 v The Republic of Nauru (2018) 360 ALR 228 at [14] per Bell, Keane and Gordon JJ.
The Tribunal is required to engage in an “active and intellectual process directed at the claim or criteria”: Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 at [45]-[46] per Lindgren, Rares and Foster JJ. While the Court can infer a failure to consider a claim if the Tribunal did not expressly mention a claim in the Tribunal Decision, it must read the reasons in the Tribunal Decision as a whole, and such an inference ought not too readily be drawn where the reasoning in the Tribunal Decision is otherwise comprehensive and the issue has at least been identified at some point: ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 (“WAEE”) at [47] per French, Sackville and Hely JJ. Further, it may be unnecessary to make a finding on a particular matter where it is subsumed in findings of greater generality: WAEE at [47] per French, Sackville and Hely JJ.
In considering the law, as set out above, the Court must consider whether:
(a)the claim was actually made and clearly articulated, or at least clearly discernible;
(b)the claim was identified and considered by the Tribunal;
(c)the Tribunal engaged in an active and intellectual process directed at the claim; and
(d)the claim, if made out, might have been dispositive of the review.
Whether claim made and clearly articulated
At CB 223 in a letter dated 15 June 2020 annexed to RZMW’s application to the Tribunal for review of the Delegate’s Decision (but addressed to “The Human Rights Safety Board”), RZMW claimed, in the context of a possible return to Liberia, that:
Liberia does not have the support and medical care or assistance that I need for helping me with my mental state and my hand condition, and I strongly feel that this will make my conditions worsen.
(also reproduced in the Tribunal Decision at CB 276 at [113])
At CB 250 in a post-Tribunal hearing letter dated 30 July 2020, RZMW claimed, in the context of a possible return to Liberia, that:
My mental health will also suffer due to not having the best of health care facilities and medical treatment that I need to help me.
(also reproduced in the Tribunal Decision at CB 264 at [69])
It is evident on a plain reading of the claims made by RZMW that they relate to medical and mental health services in Liberia generally, and did not distinguish between the provision of those services by the Liberian government and Liberian non-government actors. In relation to non-government actors it has been observed that they include and, it might be added, descend to, private individuals or citizens: Khawar at [30] per Gleeson CJ; Minister for Immigration & Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1; (2004) 78 ALJR 678; (2004) 205 ALR 487; (2004) 77 ALD 296 at [100] per Kirby J, and therefore might include individuals employed or engaged on behalf of NGOs or private service providers (recognising that in this case, the provision of private medical and, in particular, mental health services in Liberia may be very minimal).
The generality of the claims provides no basis on which to say that there was no claim made in relation to the provision or non-provision of medical and mental health services by reference to Liberian non-government actors. The requirement to consider the claim in relation to Liberian non-government actors therefore arose directly out of the claim made by RZMW. Even if the requirement to consider the claim in relation to Liberian non-government actors did not arise directly out the claim made by RZMW, it arose in any event directly out of the materials to which the Tribunal made reference in the Tribunal Decision. In this regard, RZMW referred the Tribunal to a 2017 World Health Organisation (“WHO”) report entitled “Culture and Mental Health in Liberia: A Primer” (“2017 WHO Report”): CB 283-284 at [150].
The Tribunal set out the findings from the 2017 WHO Report, including the following:
•Liberia’s mental health care system has grown from the legacy of the country’s civil war and the post-war prioritisation of trauma healing and psychosocial support: ‘the formal social sector in psychosocial support reflects a disjointed mobilization of community based rehabilitation efforts involving psychosocial counselling, peacebuilding, and conflict resolution. These efforts are often facilitated by psychosocial workers, trauma healers, health workers, social workers, NGO workers, faith-based and community-based organizations, and rapidly trained clinical staff and volunteers, and they have their roots in humanitarian post-conflict assistance…’.
…
•International and local Non-Government Organisations (NGOs) play a leading role in providing mental health services in collaboration with the WHO and the country’s Ministry of Health. Despite these collaborations, the same report says that there is a ‘recurring lack of resources dedicated to Liberian mental health’ and that the system is ‘underresourced and fragile’:
…
•Based on a 2012 report, severe mental illness and neurological disorders like epilepsy are highly stigmatised among Liberians and untreated mentally ill persons are likely to suffer from extreme abuse. People believe that mental illness is contagious, that it is caused by witchcraft and that it is retribution for misdeeds caused during the war. In order to manage the physical movements and behaviour of people with mental illness, community members may resort to extreme physical punishments like tying people down by their wrists and ankles, binding them to a tree or house or quieting them with alcohol. According to reports in 2011 and 2014, people with serious mental illnesses are often beaten, subject to witchcraft trials and raped. Mental illness continues to be regarded by many Liberians as punishment or effect of having committed evil deeds like rape or murder, as evidence that one has been a victim of sorcery or witchcraft, as consequence of engaging in sorcery, African sign, African magic, black magic or as a consequence of having violated religious totems and taboos.
The Tribunal therefore ought to have been aware from the material quoted immediately above, that mental health services were provided by non-government actors such as international and local NGOs, including the provision of community-based rehabilitation efforts facilitated by NGO workers, faith-based and community-based organisations and volunteers. At CB 267 at [162] the Tribunal said as follows (footnotes omitted) (repeating some of the final dot point quoted at [21] above):
A 2017 WHO Report says that severe mental illness and neurological disorders are highly stigmatised among Liberians and untreated mentally ill persons are likely to suffer extreme abuse. The WHO report states that Liberians believe that mental illness is contagious, that it is caused by witchcraft and that it is retribution for misdeeds caused during the war. It refers to community members managing people with mental illness by tying them down, binding them or quieting them with alcohol. The report refers to persons with mental illness being beaten and subject to witchcraft trials. The report also found that family education and community outreach can effectively persuade Liberians that individuals are suffering from a disorder and support behavioural changes in families and communities.
In relation to the question of stigmatisation, the Tribunal further observed at CB 288 at [164] that:
The Carter Centre is one NGO that has worked to reduce the stigma of mental illness, by conducting anti-stigma classes for a wide variety of audiences, including faith and traditional leaders, journalists, law enforcement officers and caregivers.
The question of stigmatisation was an essential part of RZMW’s case, and part of the reason that he claimed he might not be able to access or receive mental health services in Liberia. The Tribunal recognised this, and the effects of stigmatisation were dealt with at some length by the Tribunal: see, for example, CB 283-284 at [150], 287 at [162] and 288 at [164].
The Tribunal, in setting out these observations, principally drawn from the 2017 WHO Report relied upon by RZMW, and dealing with the delivery of mental health services in Liberia, recognised the fact that at least some of these mental health services were provided by international and state NGOs. The Tribunal also recognised the manner of the provision of mental health services extended down to the community level, so much so that anti-stigmatisation classes were undertaken by faith and tribal leaders, and caregivers, seemingly in part because “community members managing people with mental illness” were doing so in a harmful way, “tying them down, binding them or quieting them with alcohol”: CB 287 at [162]. It is no doubt correct to say, as the Minister submitted, that the Liberian government is “responsible” for the delivery of medical and mental health services in Liberia (as most governments in most countries are), but on the evidence before the Tribunal it does not follow that it was the Liberian government, and the Liberian government alone, which provided mental health services in Liberia. Indeed, on the evidence before the Tribunal, and seemingly accepted by it, the provision of mental health services in Liberia was, in part, dependent upon non-government actors, and extended to community members including faith leaders, tribal leaders and caregivers: CB 283-284 at [150], CB 287 at [162] and CB 288 at [164].
It is also not correct to submit, as the Minister did, that the issue of stigmatisation was distinct from the question of by whom mental health services were delivered. The issue of stigmatisation was inextricably intertwined with the provision of mental health services in Liberia, and RZMW’s claims encompassed the issue of stigmatisation and the possible harm arising therefrom, including harm because of the effects of stigmatisation arising from the possible non-provision of mental health services by non-government actors.
In the above circumstances, the Court has concluded that the claim in respect of the non-provision in Liberia of medical services, and in particular mental health services, arising from the activities of non-government actors was made and articulated by RZMW, or, at the very least, was clearly discernible from the materials to which RZMW referred the Tribunal, and to which the Tribunal itself referred in the Tribunal Decision.
Whether claim identified and considered
Whether active and intellectual process directed at the claim
These two issues can be considered together.
In dealing with the question of whether the claim concerning the activities of non-government actors in providing medical and mental health services in Liberia had been identified and considered, both RZMW and the Minister referred to the following paragraphs of the Tribunal Decision:
(a)at CB 286 at [156] that:
Liberia is one of the poorest countries in the world: CIA, Factbook, Liberia, accessed 2020. If there is a lack of availability of medical resources, this is a product of under-resourcing of the health system and not an intention to deny services to patients because they are members of a particular social group of people with mental health issues. In fact the government has demonstrated commitments to improvements in mental health services, for example through the Ministry of Health Mental Health Policy and Strategic Plan 2016 to 2021: Mental Health Policy and Strategic Plan Liberia, There is no information to suggest that the applicant would be denied these services by the government for any of the reasons set out in the legislation even if he did seek out services in the occasional and ad-hoc manner he has done so in Australia. The Tribunal is not satisfied therefore that lack of availability of treatment, if this is the case, would be for any of the reasons set out in the legislation.
(b)at CB 292 at [183] that:
The Tribunal has also found that there is not a real chance of serious harm due to lack of access to mental health services. The Tribunal has found that the applicant has not availed himself of regular mental health services in Australia where they are readily available and he is unlikely therefore to avail himself of them in Liberia. Furthermore the medical evidence indicates that the applicant is in remission even without regular medication, but if he were to seek out medication, he should be able to access it with help of his family or partner in Australia. Reasons for these findings are set out earlier in the decision. The Tribunal is also not satisfied that there is a real risk of significant harm due to lack of availability of services for the same reasons as set out earlier in relation to ‘real chance’. Furthermore, on the basis of country sources referred to earlier, the Tribunal is not satisfied that the government would intentionally withhold services or medication from the applicant, and any difficulties with availability are due to funding only. The Tribunal is not satisfied therefore that there is a real risk of arbitrary deprivation of life (which requires some deliberate act, rather than the consequences of scarce medical resources, MZAAJ v MIBP [2015] FCCA (Judge Riley, 4 February 2015), or of cruel or inhuman treatment or punishment; or of degrading treatment or punishment, which require intention on behalf of the government, or of the other kinds of significant harm.
RZMW says that the Tribunal neither identified nor considered that part of his claim in relation to the non-provision of medical and mental health services by non-government actors; and, although it was not put this squarely by RZMW, consequently it must follow that the Tribunal did not engage actively and intellectually in a process directed at this aspect of his claim. By contrast, the Minister said that on the materials before the Tribunal it was only the Liberian government that provided services or co-ordination of the services and that there was no evidence to the contrary, and therefore no claim to be considered: citing NABE (No 2) at [60] per Black CJ, French and Selway JJ (or as was said in Dranichnikov at [78] per Kirby J “[t]he function of the Tribunal … is to respond to the case that the applicant advances”). For the reasons set out at [20]–[25] above, the Minister’s submission in this regard cannot be accepted as it is clear that non-government actors are involved in the provision of medical and mental health services in Liberia.
Determining whether the claim was identified and considered by the Tribunal is a more nuanced task.
At CB 283 the Tribunal commences consideration of a new issue setting out a heading and paragraph as follows:
Would the applicant face a real chance of serious harm because of lack of access to mental health services and/or stigma, discrimination against persons with mental illness?
149. The Tribunal has considered whether the applicant would face a real chance of serious harm for reasons of his membership of the particular social group of persons with mental health issues, or a similar group, on the basis of lack of availability of treatment and/or ostracism and other ill-treatment.
It is pertinent to observe that the Tribunal uses the words “stigma”, “stigmatisation” and “ostracism” both to characterise the effect:
(a)on a person of having a mental health condition; and
(b)of the non-provision of mental health services to, or the ill-treatment of, persons with a mental health condition by a range of actors, including non-government actors: see [21]–[22] above, and CB 288 at [164].
Although the Tribunal did not set out or use words specifically indicative of a consideration of the non-provision of medical or mental health services by non-government actors the Tribunal Decision does:
(a)consider the effect of the non-provision of medical and mental health services by non-government actors, as set out at [21]–[22] above;
(b)does specifically indicate that the Tribunal “also considered whether the applicant would face serious harm from members of the community because of his mental health issues” and notes that the 2017 WHO Report refers to other reports which “suggested that people with serious mental illnesses are often beaten, subject to witchcraft trials and raped and that mental illness continues to be regarded by many Liberians as punishment for the effect of having committed the evil deeds”: CB 287 at [161];
(c)in the context of the provision of mental health services, otherwise distinguishes between government and non-government activities, as follows by referring to:
(i)“both NGO and government commitment to improvements ”: CB 285-286 at [154];
(ii)“[l]ocal and international NGOs [who] have been working with the Ministry of Health and Social Welfare to secure a regular supply of commonly needed psychiatric medications”: CB 285-286 at [154] (and again at CB 287 at [159]);
(iii)refers to the work of two NGOs in providing anti-stigma classes to persons including non-government actors such as faith leaders, tribal leaders and caregivers: CB 288 at [164].
Having identified the issue of non-availability of medical and mental health services, and the stigmatisation and ostracism of persons with a mental health condition, particularly by the community, and the efforts being made, including by non-government actors such as international and state NGOs, to deal with the non-availability of mental health services, the Tribunal concluded:
(a)at CB 288 at [164] that:
… these improvements do not mean that stigma and ostracism does not still exist, they do indicate that there may be less of it in the past. The Tribunal is not satisfied therefore that the applicant would suffer any significant ostracism or stigma which would reach the level of ‘serious harm’, given the medical reports indicating no outward manifestations of schizophrenia and that it is in remission.
(b)at CB 288 at [165] that:
The Tribunal is not satisfied based on the medical reports referred to above and the lack of evidence that mental health was connected to his offending, that the applicant displays symptoms of severe mental illness or would do so in the reasonably foreseeable future, which would result in stigma or ostracism of the type described in these reports. … The Tribunal is not satisfied therefore that there is a real chance of serious harm on the basis of lack of availability of treatment or because of stigma or ill-treatment of persons with disabilities.
The Tribunal considered the questions of non-availability in Liberia of services for persons suffering from mental health conditions, the efforts being made to improve the availability of those services by, amongst others, non-government actors in the form of international and state NGOs, the stigmatisation and ostracism of persons with mental health conditions by community members, and the efforts being made by the international and state NGOs to overcome the aforementioned stigmatisation and ostracism by providing mental health education and training to other non-government actors, namely community members including faith leaders and tribal leaders, and caregivers. In these circumstances, the Court considers that there is sufficient discussion and consideration of the provision of, and training in relation to, mental health services, in particular, by those non-government actors, to enable the Court to conclude that the Tribunal was aware of and, it can be inferred, identified and gave active intellectual consideration to the claim.
Whether dispositive of the claim
It is not strictly necessary to consider whether, if the claim was made out, it might have been dispositive of the application for review before the Tribunal, because the Tribunal was aware of, identified, and gave consideration to the claim: see [36] above. In any event, the Court notes that even if the Tribunal did not consider the claim, whether the claim, if made out, might have been dispositive of review is immaterial, because the Tribunal made a finding which means this claim was subsumed by findings of greater generality: WAEE at [47] per French, Sackville and Hely JJ. Those findings of greater generality at CB 288 at [164] (set out at [35] above) were that RZMW:
(a)was not displaying symptoms of severe mental illness and would not do so in the reasonably foreseeable future; and
(b)had no outward manifestations of schizophrenia, that his schizophrenia was in remission, and he would not, therefore, suffer any significant ostracism or stigma reaching the requisite level of harm.
On the basis of the Tribunal’s factual findings, it follows that the claim could not succeed because the precondition for the manifestation of harm by non-government actors, namely that RZMW had a discernible mental illness or condition, was not established. The Court notes that this finding may be impacted by any findings made in relation to remission in ground 3, which is discussed below at [64]–[95].
Other matters
The reliance placed by RZMW on Khawar is, in the circumstances of this case, misplaced. In Khawar there was a complaint that police authorities in Pakistan failed to investigate complaints of domestic violence by women, the claim in Khawar being one of domestic violence perpetrated on a wife by her husband and members of his family in Pakistan. In Khawar the High Court held that persecution within the meaning of the Refugees Convention may exist where persecution was inflicted by non-government actors, including infliction by non-government actors where it was tolerated or condoned by the government in a discriminatory manner: Khawar at [26]–[31] per Gleeson CJ and [84]–[87] per McHugh and Gummow JJ. Having regard to the material considered by the Tribunal in relation to RZMW’s claim of persecution by non-government actors it cannot be said to exhibit that want of “discriminatory inactivity” on the part of the Liberian government sufficient to warrant characterisation as persecution. Finally, and fatally for this point, the Tribunal’s findings that RZMW did not have an outwardly discernible mental illness or condition renders useless any reliance upon Khawar.
RZMW’s submission that it was the Tribunal’s responsibility to demonstrate why the gap between the absence of resources and the Liberian government’s intention is not caused by, inevitably, a non-government actor is wrong. It was for RZMW to put evidence before the Tribunal as to his claims, and to make his case; the Tribunal was not required to make RZMW’s case for him: SZNBX v Minister for Immigration and Citizenship [2009] FCA 1403; (2009) 112 ALD 475 at [29] per Bennett J, and nor was it, particularly in a case involving the activities, or potential activities, of community members in Liberia, under any duty to undertake any or further inquiries; its duty being to conduct a review and not an inquiry: SZIAI at [25]-[27] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
For the reasons set out at [13]–[40] above, ground 1 of the Further Amended Judicial Review Application is not made out and does not establish jurisdictional error in the Tribunal Decision.
Ground 2
Ground 2 of the Further Amended Judicial Review Application is as follows:
Denial of Procedural Fairness- The Tribunal failed to put to the Applicant and his family the suggestion it was possible for his prescription medication to be sent to him in Liberia from Australia.
Particulars
•The Tribunal found in relation to the Applicant’s need for painkillers at [157]:
As these are more common types of treatment, they are more likely to be available in Liberia, but if painkillers, there appears to no [be] reason the applicant’s family or partner could not provide these from Australia.
•The Tribunal also found in relation to the Applicant’s need for medication to manage his schizophrenia at [183]:
…the medical evidence indicates that the applicant is in remission even without regular medication, but if he were to seek out medication, he should be able to access it with the help of his family or partner in Australia.
•The Tribunal did not put the suggestion of sending medication from Australia to Liberia to the Applicant, his mother or the partner of the Applicant.
•The Tribunal conducted no enquiries into whether it was reasonable to send these types of medication from Australia to Liberia, or how the Applicant’s mother or partner would access the prescription medication on behalf of the Applicant. The Tribunal did not base its view that this was an available course of action on any probative material.
•The conclusions drawn at [183] and [157] amounted to a denial of procedural fairness.
As with ground 1, ground 2 is not felicitously drafted. It is not apparent whether any, and if so what, provision under the Migration Act is relied upon in relation to the alleged denial of procedural fairness. Insofar as it is alleged that it is the conclusions drawn at CB 286 at [157] and CB 292 at [183] that “amounted” to a denial of procedural fairness it is not apparent how a conclusion, rather than part of the process leading to a conclusion, can itself be a denial of procedural fairness: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88; (2005) 80 ALJR 228; (2005) 222 ALR 411; (2005) 87 ALD 512 at [16] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; Hempenstall v Minister for Home Affairs [2020] FCAFC 216 (“Hempenstall”) at [35] per Rares, Nicholas and Burley JJ. It would, however, appear that the alleged denial of procedural fairness is best considered to arise from particulars (iii) and (iv), being alleged failures as part of the Tribunal hearing process to put material and to make inquiries respectively, and thereby to have denied procedural fairness in relation to the requirements of ss 424A or 425 of the Migration Act.
RZMW’s submissions
In relation to ground 2, RZMW submitted that:
(a)the failure of the Tribunal to put to RZMW or his witnesses the suggestion it was possible for his medication to be sent to him in Liberia from Australia was a denial of procedural fairness;
(b)in Yang v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 258; (2003) 132 FCR 571 (“Yang”) at [29] per Ryan and Finkelstein JJ the majority of the Full Court of the Federal Court held that the Tribunal was obliged to inquire into a factual matter by putting the issue to the applicant for comment, observing that:
In such a case of “obvious omission or obscurity” a decision-maker should adopt the simple expedient of requiring further information from the applicant (Videto v Minister for Immigration and Ethnic Affairs (1985) 69 ALR 342 at 353); though, if the reply is unhelpful, a decision-maker is clearly not obliged to go further (Ertan v Hurford (1986) 72 ALR 695 at 702).
(c)the sending of medication was used as a method of mitigating the concern that RZMW would not have access to his medication in Liberia, and was a key integer in the findings relevant to his ability to manage his mental health issues in Liberia, and supported the Tribunal’s conclusions that RZMW:
(i)did not display symptoms of severe mental illness: CB 288 at [164]; and
(ii)is asymptomatic for his schizophrenia: CB 287-288 at [163];
(d)at no point did the Tribunal raise the possibility of RZMW’s family or partner sending the prescription medication to RZMW in Liberia: see the transcript of the relevant section of the Tribunal hearing: Affidavit of Sophie Edmonstone, affirmed 8 April 2021, at [7];
(e)in Minister for Home Affairs v Smith [2019] FCAFC 137 (“Smith”) at [17] per Jagot, Perry and Markovic JJ it was said that:
In dealing with the issue of procedural fairness the primary judge provided an orthodox summary of the relevant principles saying:
69. It is well settled that a decision-maker is not required to give a running commentary or “expose his or her mental processes or provisional views” (Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 (Alphaone) at 592). A decision-maker is, however, required to identify for the person affected “any critical issue not apparent from the nature of the decision or the terms of the statutory power” and advise of any adverse conclusions “which would not obviously be open on the known material” (see Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 (SZGUR) at [9] per French CJ and Kiefel J). Although those observations in SZGUR related to decision-making by the then Refugee Review Tribunal, I consider that they are equally applicable to decision-making under s 501CA(4) of the Act.
(f)the possibility of RZMW having his medication sent to Liberia from Australia was a critical issue in relation to the management of his health issues, with the Tribunal acknowledging at CB 286 at [155] that “the health system in Liberia is severely underfunded and access to mental health services is limited.” Having medication sent from Australia was offered as a panacea to this issue. How this was going to occur is not apparent from the Tribunal Decision.
Minister’s submissions
In relation to ground 2, the Minister submitted that it was unclear from RZMW’s submissions whether he is contending that the Tribunal contravened s 424A(1)(a) or s 425 of the Migration Act, or both, but that if he is so contending, then any such contention should be rejected for the following reasons:
(a)the finding at CB 286 at [157] was couched in the alternative to the rejection, set out at CB 286 at [156], of the claim that RZMW feared persecution (as defined in ss 5H and 5J of the Migration Act) by reason of being deprived of medical services in Liberia. The Tribunal rejected that claim at CB 286 at [156], including because any denial of medical services would not be for a reason listed in s 5J(1)(a) of the Migration Act. The Tribunal found the claim had no merit “[i]n any event”: CB 286 at [157], and gave reasons as to why at CB 286-287 at [157]-[159]. It follows that no question as to whether the Tribunal failed to comply with the requirements of s 424A(1) of the Migration Act in relation to the impugned passage at CB 286 at [157] arises on the findings that it made: VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 (“VBAP”) at [33] per North J;
(b)if the foregoing analysis is correct, it must follow that no question as to whether the Tribunal failed to comply with the requirements of s 424A(1) of the Migration Act in relation to the impugned passage at CB 292 at [183] arises on the findings that it made: VBAP at [33] per North J, because RZMW’s case for complementary protection on the basis of a lack of access to mental health services in Liberia could not survive the Tribunal’s findings that:
(i)it was “not satisfied that there is a real risk of significant harm due to lack of availability of services for the same reasons as set out earlier in relation to ‘real chance’” regarding lack of access to mental health services: CB 292 at [183]; and
(ii)it was “not satisfied that the government would intentionally withhold services or medication from the applicant”, intention on the part of the alleged agent(s) of harm being a necessary precondition to engage the complementary protection criterion in s 36(2)(aa) of the Migration Act (read with s 36(2A) of the Migration Act and the definitions of “cruel or inhuman treatment or punishment”, “degrading treatment or punishment” and “torture” in s 5(1) of the Migration Act): SZTAL;
(c)it follows that there was no non-compliance with s 425(1) of the Migration Act, as the impugned passages at CB 286 at [157] and 292 at [183] were not dispositive of the review: SZBEL at [35] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ, as the matters raised in the impugned passages were not “the critical issues or facts”: Degning v Minister for Home Affairs [2019] FCAFC 67; (2019) 270 FCR 451 (“Degning”) at [12] per Allsop CJ, on which the Tribunal Decision turned. Accordingly, the matters in question did not engage the Tribunal’s duty in s 425(1) of the Migration Act;
(d)related to the preceding point, the relevant “issue” in this context was the chance of RZMW being harmed on account of a lack of availability of medical services in Liberia. That issue was live before the Delegate: CB 211-212, and, therefore, it was live before the Tribunal. The question of whether RZMW would receive assistance from his family was encompassed by that issue, particularly where, as here, RZMW put in issue that he would have no family support if he were returned to Liberia: CB 223. RZMW’s complaint rises no higher than that the Tribunal was under a duty to disclose to him its thought processes or proposed conclusions, but that is not required by s 425(1) of the Migration Act: SZBEL at [48] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; and
(e)the Tribunal did not fail to comply with s 424A(1) of the Migration Act, either in making the findings at CB 286 at [157] or 292 at [183], or at CB 287 at [159] (third-last sentence). It is only “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review” that attracts the duty in s 424A(1) of the Migration Act. Information for the purposes of s 424A(1) of the Migration Act is “evidentiary material or documentation”, not the Tribunal’s “subjective appraisals, thought processes or determinations”: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1 (“SZBYR”) at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ (with whom Hayne J agreed at [91]); Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507; (2009) 83 ALJR 1029; (2009) 258 ALR 448 (“SZLFX”) at [23] per French CJ, Heydon, Crennan, Kiefel and Bell JJ; Minister for Immigration and Border Protection v CED16 [2020] HCA 24; (2020) 94 ALJR 706; (2020) 380 ALR 216 at [22]-[23] per Gageler, Keane, Nettle and Gordon JJ, and at [30] per Edelman J. The passages at CB 286 at [157] and 292 at [183] of the Tribunal Decision with which RZMW takes issue fall into the category of the Tribunal’s subjective appraisals, thought processes or determinations.
Consideration of ground 2
It is convenient to first set out the particular passages in the Tribunal Decision with which RZMW takes issue for the purposes of ground 2. They are:
(a)CB 286 at [157] as follows (emphasis added):
In any event, the Tribunal notes that the applicant has three key medical issues, as summarised above. The first is his right hand, for which he is treated by painkillers and had one session with a physiotherapist. As these are more common types of treatment, they are more likely to be available in Liberia, but if painkillers are not available, there appears to be no reason the applicant’s family or partner could not provide these from Australia. He has not seen a physiotherapist regularly in Australia so it can be surmised that he would not seek out this treatment regularly in Liberia. The physiotherapist did give him exercises which he could continue to do in Liberia.
(b)CB 292 at [183] as follows:
Furthermore the medical evidence indicates that the applicant is in remission even without regular medication, but if he were to seek out medication, he should be able to access it with help of his family or partner in Australia.
Consideration of ground 2 must otherwise begin with reference to the relevant provisions of the Migration Act.
Section 422B(1) of the Migration Act provides that Pt 7 Div 4 of the Migration Act “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”. The effect of s 422B(1) of the Migration Act is to codify the natural justice hearing rule in relation to the matters with which Pt 7 Div 4 deals, and to displace the common law rules of procedural fairness, “in relation to the matters it deals with”: Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 84 ALJR 507; (2010) 267 ALR 204; (2010) 115 ALD 493 (“Saeed”) at [35] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ; Hempenstall at [39] per Rares, Nicholas and Burley JJ.
One of the matters Pt 7 Div 4 of the Migration Act deals with is “the provision of information, more generally relevant and adverse, for comment” in s 424A of the Migration Act: Saeed at [42] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ; Khan v Minister for Immigration and Citizenship [2011] FCAFC 21; (2011) 192 FCR 173 at [40] per Buchanan J. Section 424A(1)(a) of the Migration Act requires the Tribunal to “give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”.
The obligation which arises under s 424(1)(a) of the Migration Act is to put information which “would” be the reason, or part of the reason, for affirming the decision under review, here the Delegate’s Decision. The focus is on “the reason” for affirming the decision under review, and giving information which “would” be the reason, or part of the reason, and not on information which “could” or “might” be the reason for part of the reason: SZLFX at [25] per French CJ; Heydon, Crennan, Kiefel and Bell JJ; MZYFH v Minister for Immigration and Citizenship [2010] FCA 559; (2010) 188 FCR 151; (2010) 115 ALD 409 at [68] per Bromberg J. Further, the use of the words “would be” in s 424(1)(a) mean that its “operation … is to be determined in advance – and independently – of the tribunal’s particular reasoning on the facts of the case”: SZBYR at [17] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ (with whom Hayne J agreed at [91]).
In this case, the reason for affirming the Delegate’s Decision was the Tribunal’s rejection of RZMW’s claim that he would suffer harm from a lack of availability of medical services and, in particular, mental health services in Liberia, in circumstances where the Tribunal also found that RZMW was not suffering from the kind of illness claimed, “even when he is not taking medication”: CB 286 at [156], 288 at [164], 292 at [183]-[184] (quote at [184]). The Tribunal’s reason for affirming the Delegate’s Decision, therefore, has an independent basis both logically prior to, and separate from, the Tribunal’s consideration of the availability of pharmaceuticals for RZMW, and which renders redundant the availability of pharmaceuticals as a “reason” forming the basis for what “would be the reason, or part of the reason” for the Tribunal’s affirmation of the Delegate’s Decision and means that s 424A of the Migration Act was not engaged at all: SZBYR at [17] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ (with whom Hayne J agreed at [91]); VBAP at [33] per North J.
Another matter with which Pt 7 Div 4 of the Migration Act deals is the provision of an invitation to a review applicant to appear “to give evidence and present arguments relating to the issues arising in relation to the decision under review”, pursuant to s 425(1) of the Migration Act.
There is no question that RZMW was invited to the Tribunal Hearing on 22 July 2020: CB 230-233, and was invited to “give evidence and present arguments relating to the issues arising in your case”: CB 231. In that regard, it is pertinent to observe that in the Delegate’s Decision the Delegate, having reviewed relevant country information, made the following finding in relation to the question of complementary protection at CB 212:
Given the above country information, I consider there is no evidence to indicate that the applicant will be denied medication or access to healthcare in Liberia. In order to amount to significant harm, any claims related to inadequacy of medical treatment in Liberia or unavailability or high cost of medication would have to arise due to an intention to inflict either pain or suffering or the cause extreme variation. There is no evidence before me that this would be the case for the applicant for any reason. I am therefore satisfied that there is no real risk the applicant will suffer significant harm for reasons related to denial of treatment for his mental health conditions for inadequacy of such treatment.
In SZBEL the High Court observed that:
(a)the issues which would ordinarily arise in a review by the Tribunal would be those identified to be determinative against the applicant by the original administrative decision maker, here the Delegate’s Decision: at [35] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ;
(b)unless advised to the contrary, an applicant would be entitled to assume that the reasons given by the original administrative decision maker, here the Delegate, for refusing to grant an application will identify the issues that arise upon review of the original decision: at [36] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ;
(c)that the “issues” on review by the Tribunal may be identified generally, that is, with no more particularity than whether an applicant is entitled to a Protection Visa, or with more particularity, in which case other questions arise: at [39] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; and
(d)if there are specific aspects of an applicant’s account that may be important to the decision to be made by the Tribunal, or which may be open to doubt, then the Tribunal ought to ask the applicant to expand upon those aspects of the account and to ask why that account ought to be accepted: at [47] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
In SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486 (“SZJUB”)at [25] per Bennett J the Federal Court, having referred to SZBEL at [47] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ, observed that:
The question is whether the fact that … [the applicant] had a business and a dependent child were issues in themselves or factual matters that related to the issue of risk. If they are factual matters that go to the issue arising in relation to the decision under review (ie, risk generally), the Tribunal is not obliged to put each of those factual matters to the appellant. The Tribunal is obliged to inform her of the issue but not of each fact that relates to it.
In SZHZD v Minister for Immigration and Multicultural Affairs [2008] FMCA 4 at [36]-[39] per Barnes FM the Federal Magistrates Court analysed the proper approach to determining what an “issue” is for the purposes of s 425 of the Migration Act and said as follows:
36.The “issues” referred to in s.425 cannot necessarily be identified simply by describing them as whether the applicant was entitled to a protection visa. As the High Court stated in SZBEL at [34]:
The statutory language ‘arising in relation to the decision under review’ is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise (s.415) all powers and discretions conferred by the Act on the original decision-maker (here, the Minister’s delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons.
37.The Tribunal’s task is to review the delegate’s decision. It has to identify the issues that arose in relation to that decision. However, if a Tribunal takes “no steps to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review” (SZBEL at [35]).
38.I have had regard to the fact that what is in issue is the scope of s.425, not common law procedural fairness. Hence some caution must be exercised in the application of statements made in that context to s.425. What the High Court stated at [38] reflected approval of the statement by the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590 – 591 that the requirement of procedural fairness in the exercise of a statutory power includes the fact that “The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material”. In that context the High Court expressed the view (at [38]) that what was “obviously…open” in the Tribunal’s review “can be identified only by having regard to ‘the issues arising in relation to the decision under review’ ”. It was those issues which it was said would determine whether rejection of critical aspects of an applicant’s account of events (as was said to have occurred in SZBEL) was “obviously … open on the known material”. In contrast, in the context of s.425 the focus is on whether the Tribunal has met its obligation to invite the applicant to appear before it to give evidence and present arguments “relating to the issues arising in relation to the decision under review”
39.An exercise in characterisation must be undertaken to identify what are the “dispositive” or determinative issues in the sense of issues on which the decision to reject the applicant’s claim is based. It is those issues that meet the description of an issue “arising in relation to the decision under review” within the meaning of s.425.
In this case the dispositive issue was whether or not RZMW was suffering from an illness of a kind such that, even when he was not taking his medication, there was a real chance that he would suffer serious harm if returned to Liberia, in relation to which the Tribunal found that he was not suffering from an illness of that kind: CB 288 at [164]-[165] and 292 at [184]. Whilst the Tribunal also found that it was not satisfied that there was a real chance that RZMW would suffer serious harm because of a lack of availability of treatment, or “[i]n any event”: CB 286 at [157], because of a lack of necessary medication, those will only become dispositive issues in the event that the Tribunal Decision was affected by some kind of error in relation to the dispositive issue at hand, that being whether or not RZMW was suffering from an illness of the kind referred to in the previous sentence.
For a denial of procedural fairness to constitute jurisdictional error in respect of a particular administrative decision it must give rise to practical injustice, because the matter in respect of which procedural fairness has not been afforded (for example, by way of a denial of opportunity to make a submission material to that administrative decision) could have affected the outcome of the administrative decision under review: Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1; (2003) 195 ALR 502 at [37] per Gleeson CJ; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 75 AAR 75; (2019) 363 ALR 599; (2019) 163 ALD 38 per Bell, Gageler and Keane JJ at [38].
For the reasons set out at [46]-[58] above, the issue raised by RZMW in ground 2 was not a dispositive issue. For that reason, there was no denial of procedural fairness because there was no practical injustice caused to RZMW in circumstances where the issue considered dispositive by the Tribunal meant that there was an independently justifiable basis for the Tribunal to affirm the Delegate’s Decision: VBAP at [33] per North J; SZHFX v Minister for Immigration and Citizenship [2008] FCA 726; (2008) 102 ALD 307 at [56] per Weinberg J; DSA16 v Minister for Immigration & Anor [2019] FCCA 1196 at [48] per Judge Nicholls.
In submissions RZMW relied upon judgments of the Full Court of the Federal Court in Yang and Smith.
Yang is distinguishable because, to the limited extent to which it gave rise to an issue of procedural fairness: Yang at [29] per Ryan and Finkelstein JJ, it was determined solely on common law principles of procedural fairness, and did not involve any consideration of the non-refugee counterpart provisions of ss 422B, 424A or 425 of the Migration Act, namely ss 357A, 359A and 360 of the Migration Act, whereas this case requires consideration of the relevant statutory provisions in Pt 7 Div 4, namely ss 422B, 424A or 425, of the Migration Act. Further, to the extent that ground 2 suggests at particular (iv) that the Tribunal ought to have made inquiries and relies therefore on Yang, that reliance is misplaced because Yang involved an “obvious omission or obscurity”, resolvable “simply” and by reference to “readily available information”, and therefore Yang fell within the exception to inquiries now recognised by SZIAI at [25]-[27] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. It is far from obvious that the resolution of the issue of provision of medication to RZMW if he returned to Liberia involved an obvious inquiry about a critical fact, the existence of which might be easily ascertained: SZIAI at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
Smith too is distinguishable as it involved a cancellation of a visa under s 501CA of the Migration Act for a person serving a sentence of imprisonment. Section 501CA of the Migration Act is not an administrative decision to which the provisions of Pt 7 Div 4 of the Migration Act apply, and the statutory framework within which the Minister on the one hand and the Tribunal on the other are (or are not) subject to the requirements of procedural fairness is quite different: SZBEL at [26] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
For the reasons set out at [46]-[62] above, ground 2 of the Further Amended Judicial Review Application is not made out and therefore establishes no jurisdictional error in the Tribunal Decision.
Ground 3
Ground 3 of the Further Amended Judicial Review Application is as follows (with underlining as in the original and footnotes added to the text in square brackets):
Ground Three: Jurisdictional error – The Second Respondent failed to correctly apply the test of what constituted the “reasonably foreseeable future” when considering the Applicant’s claim and therefore made a jurisdictional error.
Particulars
•The Tribunal made the finding that:
The Tribunal is not satisfied based on the medical reports referred to above and the lack of evidence that mental health was connected to his offending, that the applicant displays symptoms of severe mental illness or would do so in the reasonably foreseeable future, which would result in stigma or ostracism of the type described in these reports…The Tribunal is not satisfied therefore that the applicant would suffer any significant ostracism or stigma which would reach the level of ‘serious harm’, given the medical reports indicating no outward manifestations of schizophrenia and that it is in remission at [164].
•The Tribunal’s conclusion fails to adequately consider the reasonably foreseeable future as described in Minister for Immigration and Ethnic Affairs v Wu Shan Liang:
The assessment of whether a person fears persecution on return to her or his country of nationality, must involve speculation about the future, and an assessment of the period of time to look into the future…
In assessing whether an applicant has a well-founded fear of persecution for a Convention reason the decision-maker must assess the applicant’s situation not only in the present but also into the reasonably foreseeable future: [(1996) 185 CLR 259 at [279]].
•The Tribunal has incorrectly considered the “reasonably foreseeable future” in terms of the Applicant’s current situation of being in remission and that the Applicant currently displays no symptoms. Remission meaning “a temporary diminution of the severity of disease or pain” [Oxford English Dictionary] indicates that the Applicant’s current state is temporary and therefore there is a possibility, if not likelihood, that symptoms would return.
RZMW’s submissions
In relation to ground 3, RZMW’s submissions were as follows:
(a)the Tribunal failed to properly consider RZMW’s situation in the reasonably foreseeable future, particularly whether RZMW’s mental health condition would create an outward manifestation that would reach the level of “serious harm”;
(b)the Tribunal’s consideration is required to “involve speculation about the future”, rather than merely extrapolating from past behaviour: Wu Shan Liang, CLR at 279 per Brennan CJ, Toohey, McHugh and Gummow JJ;
(c)the Tribunal spent a great deal of time considering RZMW’s past use of mental health services, discussing the matter for 18 paragraphs between CB 280-283 at [130]-[148] under the heading “What treatment has he sought in Australia”, stating as follows at CB 280 at [130]:
In order to assess what services the applicant would require in Liberia, it is relevant to consider what services he has availed himself of in Australia.
(d)the Tribunal concluded at CB 292 at [183] as follows:
The Tribunal has found that the applicant has not availed himself of regular mental health services in Australia where they are readily available and he is unlikely therefore to avail himself of them in Liberia.
(e)the Tribunal further concludes that it is “not satisfied, based on his pattern of behaviour of missing appointments, that he would regularly seek out these services in Liberia.”: CB 286 at [158];
(f)the Tribunal is irrelevantly including the qualifying term “regularly” in its assessment of both past and future service usage. A well-founded fear includes no requirement to establish the regularity of the serious harm. In Minister for Immigration and Ethnic Affairs v Guo & Anor [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481 (“Guo”), CLR at 572 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow JJ, the High Court said that:
A fear is “well-founded” when there is a real substantial basis for it. As Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 87 ALR 412 shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate: (1997) 191 CLR 559 at [572].
(g)the relevant measure would be “as needed” or “as required”;
(h)the Tribunal was required to consider what may happen in the future, including any change in current circumstances. Reasonably foreseeable changes of circumstances that may occur if the applicant is removed to Liberia include RZMW’s:
(i)coming out of remission from his schizophrenia; and
(ii)trauma being triggered by his return to the place where the traumatic events happened;
(i)the Tribunal was then required to apply the possible change of circumstances for RZMW to the information before it regarding the serious risk of harm, namely, that if RZMW’s schizophrenia comes out of remission and he needed services, would he be denied access to those services, and would he face stigmatisation;
(j)in relation to the Minister’s argument that there was no other evidence to suggest that the position with respect to RZMW’s schizophrenia being in remission, there was the determination by a psychiatrist that RZMW’s schizophrenia was in remission, and not cured. If RZMW was no longer at risk of psychotic symptoms, then the medical reports would have not used the term “remission” to describe his symptoms. The Tribunal had this information at hand, noting at CB 283 at [150] that:
The applicant’s representative is reported in the April 2020 cancellation decision as submitting that remission is not synonymous with cure and that the Tribunal (differently constituted) should infer a reasonable chance of schizophrenia symptoms reoccurring and a concomitant decline in the applicant’s health.
(k)additionally, RZMW’s claim at CB 276 at [113] was that “I strongly feel that this will make my condition worsen”; and
(l)the Tribunal, therefore, had both evidence and information before it that would prompt the need to consider that RZMW’s condition may change in the reasonably foreseeable future.
Minister’s submissions
In relation to ground 3, the Minister’s submissions were as follows:
(a)in forming a view as to the reasonably foreseeable future, the Tribunal was entitled to have regard to the applicant’s past and present circumstances: Guo, CLR at 574-575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ. That is what it did at CB 288 at [164]. Having found that RZMW’s condition was in remission (which was consistent with the most up-to-date medical evidence: CB 278-279 at [124]), and in circumstances where there was no other evidence to suggest that that position would change: CB 279-280 at [129], the Tribunal was entitled to rely upon RZMW’s condition as at the date of the Tribunal Decision in assessing whether he faced a real chance of serious harm “in the reasonably foreseeable future”;
(b)the Tribunal Decision, when read as a whole, reveals that it looked to the future, and that it did not misunderstand the “real chance” test, as evidenced by various passages in the Tribunal Decision at which, it is submitted, the Tribunal “refers to what might happen to … [RZMW] if he were returned to Liberia in the reasonably foreseeable future”: Transcript at p 13; and
(c)the Tribunal did not ignore RZMW’s evidence about a return to Liberia worsening his condition, but rather preferred and gave greater weight to the most recent medical evidence.
Consideration of ground 3
Law
There is no doubt that in determining whether RZMW met the criteria for refugee status the Tribunal was obliged to answer the question as to whether there was a real chance that he would be subject to persecution for a Convention reason in the future if returned to Liberia and that that required consideration of future conduct: Guo, CLR at 574-575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ. The necessity for, and effect of, a failure to consider future conduct was succinctly described by the Federal Court in SBZF v Minister for Immigration and Citizenship [2008] FCA 1486; (2008) 104 ALD 415 at [52] per Lander J as follows:
In this case, the Tribunal addressed the question of past conduct but did not consider the question of future conduct. That specific question had to be addressed and answered. In that sense, it did not exercise the jurisdiction which is bestowed upon it under the Act.
In Wu Shan Liang the High Court observed with respect to:
(a)the “real chance” test, that the correct test was whether there was a real chance that an applicant would be persecuted for a Convention reason were the applicant to return to the receiving country at the time of the Tribunal decision or within the reasonably foreseeable future: CLR at 279 per Brennan CJ, Toohey, McHugh and Gummow JJ; and
(b)the assessment of the chance of the occurrence of a future event, at CLR at 281 per Brennan CJ, Toohey, McHugh and Gummow JJ, as follows:
As a matter of ordinary experience, it is fallacious to assume that the weight accorded to information about past facts or the opinion formed about the probability of a fact having occurred is the sole determinant of the chance of something happening in the future: the possibility that a different weight should have been attributed to pieces of conflicting information or the possibility that the future will not conform to what has previously occurred affects the assessment of the chance of the occurrence of a future event.
In Guo, CLR at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ the High Court observed that:
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In any, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.
In the context of a requirement to be satisfied with respect to the real chance that something may or may not occur, questions of weight and the assessment of the material before the Tribunal, and whether, for example, material is contradictory, are matters for the Tribunal: Wu Shan Liang, CLR at 281–282 per Brennan CJ, Toohey, McHugh and Gummow JJ. Further, this Court on judicial review:
(a)ought not adopt an approach to the Tribunal Decision which scrutinizes the Tribunal Decision over-zealously in search of error: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Minister for Immigration and Citizenship v SZMDS and Anor [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 at [35] per Gummow ACJ and Kiefel J; and
(b)must read the Tribunal Decision fairly and as a whole: Minister for Immigration and Border Protection v Tran [2015] FCA 546; (2015) 232 FCR 540; (2015) 150 ALD 446 at [24] per Jagot J; WZAVQ v Minister for Immigration and Border Protection [2016] FCA 188 at [55] per Barker J.
Tribunal Decision
In the Tribunal Decision, the Tribunal:
(a)referred to the refugee criterion in s 36(2)(a) of the Migration Act, and set out and dealt with the concept of a well-founded fear of persecution and the definition thereof in section 5J of the Migration Act, noting particularly that an assessment of whether a person has a well-founded fear of persecution is dependent, amongst other things, upon whether there was a real chance that, if a person was returned to the receiving country, that they would be persecuted for one or more of the Convention reasons: CB 256-257 at [9] and 272 at [97];
(b)indicated, in relation to claims of fear of harm from certain rebels in Liberia, that it was not satisfied that there was a real chance, in the sense of a substantial or non-remote chance, of serious harm if RZMW were to return to Liberia in the reasonably foreseeable future: CB 273 at [102];
(c)set out the detail of medical treatment that RZMW had sought, or not as the case may be, in Australia: CB 280-283 at [130]-[148] and 286 at [158];
(d)considered whether RZMW would face a real chance of serious harm by reason of his membership of a social group of persons with mental health issues on the basis of a lack of availability of treatment or ostracism and other ill-treatment in Liberia: CB 283 at [149];
(e)observed that sources suggested that both the Liberian government and NGOs were committed to improvements in the provision of mental health services: CB 285 at [154];
(f)referred to issues of lack of availability of medical resources and under-resourcing of the health system in Liberia, and found that there was no information to suggest that RZMW would be denied services by the Liberian government for any reason referred to in the Migration Act, “even if he did seek out services in the occasional and ad hoc manner he has done so in Australia”: CB 286 at [156];
(g)specifically considered whether or not two drugs taken by RZMW to assist with sleep and chilling out were available in Liberia, and found that there was no evidence that the treatment was “not available”: CB 287 at [159], and went on to find that it was not satisfied that RZMW would face a real chance of serious harm in Liberia “by way of denial of mental health services”: CB 287 at [160];
(h)considered whether RZMW would face serious harm from members of the Liberian community because of his mental health issues: CB 287 at [161];
(i)said at CB 288 at [164] as follows (emphasis added):
The Tribunal is not satisfied based on the medical reports referred to above and a lack of evidence that mental health was connected to his offending, that the applicant displays symptoms of severe mental illness or would do so in the reasonably foreseeable future, which would result in stigma or ostracism of the type described in these reports.
(j)was not satisfied that there was a real chance of serious harm in Liberia on the basis of lack of available treatment or because of stigma or ill-treatment of persons with disabilities: CB 288 at [165];
(k)in relation to whether there was a real chance of persecution for reasons of membership of a particular social group of returnees to Liberia, due to being unable to subsist or because of crime, observed that country information did not suggest that returnees were targeted for harm because they were returnees from other countries or perceived as foreigners: CB 289 at [168];
(l)noted, in the context of economic conditions in Liberia, that although “it will be extremely difficult for … [RZMW] to return to Liberia” the Tribunal was not satisfied that he would face serious harm by being unable to subsist “due to being a returnee”, and went on to refer to country information which suggested that returnees are not denied jobs or services because they have returned to Liberia from other countries: CB 290 at [173];
(m)discussed a suggestion that RZMW would be harmed because he would be separated from his family in Australia: CB 291 at [175]; and
(n)albeit in relation to complementary protection, found that there was not a real chance of serious harm due to a lack of access to mental health services, and that RZMW had not availed himself of regular mental health services in Australia where they are readily available, and that he was therefore unlikely to avail himself of them “in Liberia”: CB 292 at [183].
This is a case where the Tribunal obviously understood that it must look to see if there was a real chance that RZMW might suffer serious harm amounting to persecution for a Convention reason in the reasonably foreseeable future, and considered not only RZMW’s particular circumstances but also a not inconsiderable array of country information before arriving at a conclusion with respect to whether RZMW had a real chance of harm on the bases asserted in his claims. It is not appropriate to analyse the reasons of the Tribunal minutely or over-zealously and with a focus upon perceiving error, and read in context, and read without an eye looking for error, it is tolerably clear that, in general terms, the Tribunal considered whether there was a real chance of serious harm amounting to persecution for a Convention reason in the reasonably foreseeable future if RZMW returned to Liberia. Further, in circumstances where the Tribunal:
(a)made reference to the relevant legislative provisions, and addressed itself to the question as to whether there was a real chance of serious harm amounting to persecution, and specifically referred to whether RZMW would display symptoms of severe mental illness in the reasonably foreseeable future: CB 288 at [164];
(b)considered country information, including country information referring to improvements and the ongoing work of the Liberian government and NGOs in the provision of medical and mental health services, and refers to that material in the Tribunal Decision;
(c)in arriving at findings, referred to matters which could only take place in the future if RZMW returned to Liberia: for example, harm from rebels who still remembered RZMW killing the rebel’s grand commander, ill-treatment and ostracism because of mental health issues, whether RZMW would seek out mental health services, and the availability of medicines and treatment; and
(d)at CB 291 at [177] concluded that (emphasis added):
the Tribunal is not satisfied the combination of any of the factors raised would result in a real chance of serious harm to … [RZMW] in the reasonably foreseeable future for any of the reasons in the legislation for all the reasons referred to earlier
it cannot be concluded that the Tribunal generally failed to consider or apply the test of what constituted the “reasonably foreseeable future”. On the contrary, the Tribunal did consider whether RZMW might be persecuted in the reasonably foreseeable future for a Convention related reason if he returned to Liberia.
A specific aspect of the Tribunal Decision of which RZMW is critical is that the Tribunal considered RZMW’s past use of mental health services in Australia for some 18 paragraphs at [130]-[148] at CB [280]-[283]. RZMW then criticises the conclusion said to have been reached by the Tribunal, namely, that RZMW would be unlikely to avail himself of mental health services in Liberia when he had not done so regularly in Australia and was therefore not satisfied that RZMW “would regularly seek out these services in Liberia”: CB 286 at [158], on the basis that a well-founded fear of persecution does not depend on the regularity of the alleged serious harm.
Whilst past events are not the sole determinant to be used for assessing the likelihood of future events: Wu Shan Liang, CLR at 279 per Brennan CJ, Toohey, McHugh and Gummow JJ, it is nevertheless a determinant, and an “integral” one at that: Guo, CLR at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ. There is no doubt that RZMW’s mental health condition was an issue central to RZMW’s claims, and consequently the Tribunal’s determination of those claims. Where RZMW claimed that he had had contact with mental health services in Australia since 2005: CB 280 at [132], the Tribunal cannot be criticised for spending 18 paragraphs discussing RZMW’s use of those services in the 192 paragraph Tribunal Decision. Particularly so, where RZMW’s use of those mental health services was integral to the Tribunal’s consideration of the dispositive issue of whether or not RZMW was suffering from a mental illness, even when not taking his medication, and whether there was a real chance that he would suffer serious harm if returned to Liberia, and in relation to which the Tribunal found that he was not suffering from a mental illness of the kind alleged, and therefore would not suffer ostracism or stigma reaching the level of serious harm: CB 288 at [164]-[165] and 292 at [184]. In the circumstances, RZMW’s criticism of the focus by the Tribunal on his medical and mental health history in Australia is misconceived as that focus was related to the existence or otherwise of the condition said to give rise to RZMW’s claims, and only once that question had been determined was it necessary to consider the likelihood of suffering serious harm if returned to Liberia, and then only if it was found that RZMW was suffering from a mental illness of the kind alleged. The Tribunal’s conclusion that RZMW would not suffer serious harm if returned to Liberia flowed logically from the Tribunal’s finding that RZMW was “given the medical reports indicating no outward manifestations of schizophrenia and that he was in remission”: CB 288 at [164]. Furthermore, that finding arguably made it unnecessary for the Tribunal to consider the question of future serious harm because the precondition for that harm (outwardly manifest schizophrenia whenever occurring) had not been made out.
RZMW’s submission that the Tribunal’s non-satisfaction that RZMW “would regularly seek out these [mental health] services in Liberia”: CB 286 at [158] is likewise a finding which it was unnecessary for the Tribunal to make for the purposes of assessing future serious harm, given that it had found that the precondition for serious harm, namely the alleged outwardly manifest schizophrenia when occurring, had not been made out. In any event, it is not a finding, as RZMW asserts, about the likely regularity of serious harm, but rather the likely regularity of the use of mental health services in Liberia by RZMW, and was one of a number of matters considered in the context of a consideration of RZMW’s “symptoms of … schizophrenia”, leading to a finding of that “his diagnosis of schizophrenia appears to be related to the use of ice in 2017 and there have been no symptoms reported by medical practitioners prior to or after that time, with recent reports suggesting he is in remission. The reports from mental health practitioners are consistent that he is not suffering any symptoms and has not for some time”: CB 286 at [158]. Considered in context, the phrase criticised by RZMW is not one in which the Tribunal is considering the concept of future serious harm, and the criticism is therefore not made out.
Finally, RZMW asserts that the Tribunal has incorrectly considered the question of what constitutes the reasonably foreseeable future in relation to RZMW’s symptoms of schizophrenia being in remission. RZMW asserts that this is a temporary state and that it can be inferred that the symptoms are likely to return if RZMW returns to Liberia, and therefore that he would risk of serious harm, again it can be inferred, because of an outward manifestation of the symptoms of schizophrenia.
It is first worth considering what is meant by the phrase “reasonably foreseeable future”. In CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 (“CPE15”) the Federal Court dealt with the meaning of the phrase “reasonably foreseeable future” for the purposes of assessing risk of harm to a person occurring in the future, observing at [60] per Mortimer J that:
The “reasonably foreseeable future” is something of an ambulatory period of time, but the use of reasonable foreseeability as the benchmark concept indicates that the assessment is intended to be one which can be made on the basis of probative material, without extending into guesswork. It is also intended to preclude predictions of the future that are so far removed in point of time from the life of the person concerned at the time the person is returned to her or his country of nationality as to bear insufficient connection to the reality of what that person may experience. …
Although CPE15 was dealing with the “reasonably” foreseeable future, the judgment:
(a)identifies that the concept of the foreseeable future is ambulatory, that is “movable” or “not permanent”: The Oxford English Dictionary, Second Edition (Oxford: Clarendon Press, 1989), Vol 1, p 391;
(b)identifies that the assessment of what constitutes the foreseeable future needs to be based on probative material, without descending to guesswork; and
(c)precludes from the assessment of the foreseeable future predictions that are so far removed from the present as to be unrealistic.
It is also necessary to consider what is meant by “remission”. RZMW asserts that it is a “temporary diminution” of the particular medical condition being considered and that the defining feature is its temporary nature.
The American Psychiatric Association (2013) Diagnostic and Statistical Manual of Mental Disorders: DSM-5. 5th edn. Washington, D.C.: American Psychiatric Publishing, Schizophrenia – Diagnostic Criteria (“DSM-5”) defines “remission” as follows:
Partial remission is a period of time during which an improvement after a previous episode is maintained and in which the defining criteria of the disorder are only partially fulfilled.
…
Full remission is a period of time after a previous episode during which no disorder-specific symptoms are present.
The Oxford Dictionary Online: "remission, n." OED Online, Oxford University Press, December 2021, Web, 14 February 2022 (“OED Online”) defines “remission” as follows:
b. Medicine. Lessening of the severity of a disease or symptom; disappearance of symptoms or cessation of the activity of a disease for a period; an instance of this. Also (esp. in in remission, to go into remission): the state of undergoing this. Also in figurative contexts.
The Macquarie Dictionary: "remission" Macquarie Dictionary, Macquarie Dictionary Publishers, 2022, Web, 14 February 2022 (“Macquarie Online”) defines “remission” as follows:
7. a temporary decrease or subsidence of manifestations of a disease.
There is no doubt that remission can be temporary: Macquarie Online definition at [82] above. But that rather begs the question as to how long a temporary remission might last. The OED Online refers to the “disappearance of symptoms … for a period”: OED Online definition at [81] above. The DSM-5 definition at [80] above refers to both “partial” and “full” remission “for a period of time”, with full remission being for “a period of time after a previous episode during which no disorder-specific symptoms are present”. In this case, the question becomes whether the period of time for which there is a remission was capable, on the material before the Tribunal, of being characterised as for the reasonably foreseeable future. Before considering the question, it is necessary to have regard to the probative material considered by the Tribunal: CPE15 at [60] per Mortimer J.
In considering RZMW’s health issues, the Tribunal had access to significant evidence and material including:
(a)reports and notes from psychiatrists and mental health nurses as referred to in two Tribunal visa cancellation decisions in December 2018 and April 2020;
(b)a medical report dated June 2020 from the clinical reporting nurse at International Health and Medical Services (“IMHS” and “IHMS June 2020 report” respectively), IHMS being the medical services provider for persons in immigration detention;
(c)information concerning the attendance, or not, of RZMW at various medical appointments over the last few years; and
(d)the evidence of RZMW, his partner and his mother.
The Tribunal set out the evidence and material to which it had access, and to which it had regard in determining the effect of RZMW’s schizophrenia and whether it was in remission, at considerable length: see generally CB 276-288 at [113]-[166]. By way of example, the Tribunal:
(a)noted statements in submissions by RZMW that because Liberia did not have the support and medical care or systems that he needed, he felt that his mental health condition would worsen if he was returned to Liberia: CB 276 at [113];
(b)in relation to medical issues referred to in a December 2018 Tribunal visa cancellation decision, noted that the Tribunal in that case:
(i)found that evidence of mental illness or issues was not provided to explain RZMW’s offending behaviour: CB 277 at [116]; and
(ii)took into account a psychiatrist’s diagnosis of chronic schizophrenia affecting the applicant in July 2017, and referred to RZMW having told the psychiatrist that he had used the drug ice and that he “ended up going to the mental ward because it disturbed me”: CB 277 at [117];
(c)in relation to medical issues referred to in a April 2020 Tribunal visa cancellation decision, noted that the Tribunal in that case referred to a consultant psychiatrist’s report dated 13 July 2017 (“July 2017 Report”): CB 277 at [118] and 278 at [121], which noted that RZMW had presented with a first episode of psychosis whilst in prison and referred to his experiencing a drug-induced psychosis after using the drug ice: CB 278 at [121];
(d)referred to the IHMS June 2020 Report which noted, at CB 278-279 at [124], that RZMW:
(i)had reported a history of schizophrenia currently in remission;
(ii)was last reviewed by a psychiatrist on 6 May 2019 “and was deemed to have no psychotic symptoms at that time”;
(iii)was not reported to have any symptoms other than an underlying paranoia toward other detainees and the detention centre service provider, which he described as “normal for me” (see also CB 281 at [138]); and
(iv)that he did not require any follow-up other than “routine screening”, and that he was documented as “low risk” (see also CB 281 at [137]);
(e)at CB 279 at [125], in relation to evidence given to the Tribunal by RZMW and his partner:
(i)noted that RZMW said that he took medication for schizophrenia and did not know why the psychiatrist had said that he was in remission (see also CB 282 at [141]); and
(ii)noted that RZMW’s partner said that he “had had no symptoms [of schizophrenia] since she had known him” (see also CB 282 at [142]);
(f)in relation to RZMW’s schizophrenia concluded, at CB 279-280 at [129], that:
The Tribunal accepts on the basis of the medical reports that … [RZMW] has schizophrenia in remission. The Tribunal accepts that schizophrenia was diagnosed in 2017 following a psychotic incident in prison brought on by use of the drug ice, but prior and since then there have been no ongoing reports of psychotic incidents. The Tribunal notes that mental illness was not discussed as a cause of … [RZMW’s] offending in the 2018 cancellation decision, although alcohol was. On 6 May 2019 … [RZMW] was last reviewed by a psychiatrist and was deemed to have no psychotic symptoms at that time. Since then, the reports have indicated that … [RZMW] has not suffered any psychotic episodes and that his schizophrenia has been in remission. This has been confirmed by the applicant and his partner (who has known him since April 2020). A mental health nurse who saw the applicant on 27 May 2020 said that he reported no symptoms and did not deem that he needed follow-up other than routine screening.
(g)in its extensive discussion of what treatment RZMW had sought in Australia observed that:
(i)the July 2017 Report referring to RZMW’s use of ice in custody indicated that RZMW had persisting psychotic symptoms despite abstinence from illicit drugs for many months and that suggested that he had an ongoing psychotic illness: CB 280 at [132];
(ii)noted the IHMS June 2020 Report indicating that RZMW had been seen by a psychiatrist in August 2017 who noted that his mental health remains stable and that his symptoms of schizophrenia were “mostly under control with antipsychotic medication”: CB 280 at [132];
(iii)observed that in March 2018 a general practitioner noted that RZMW denied that he had any active psychiatric symptoms, and later told a nurse that he was “doing good” and that his medication kept him “stable”: CB 280 at [132];
(iv)noted that in the April 2020 Tribunal visa cancellation decision a differently constituted Tribunal had referred to:
(A)a 14 April 2018 psychiatric report which concluded that RZMW’s schizophrenia was in remission despite him not taking medication, and which noted that RZMW asserted he did not need antipsychotic medication: CB 280 at [133];
(B)a psychiatrist reporting on 6 May 2019 that RZMW’s schizophrenia was in remission and that RZMW had ceased taking medication as RZMW did not believe he needed it, and denied that he had any psychotic symptoms: CB 281 at [135];
(C)mental health nurses notes that RZMW only used antipsychotic medication for sleep (28 May 2019), that he went for lengthy periods without medication but took it more regularly during times of stress (5 June 2019), that a particular mental health nurse said that it was “of note I have never seen this young man acutely unwell” (29 July 2019), that there was “nil mental health concern on presentation” (5 November 2019), and that RZMW was refusing current medications and was not reported as having unusual perceptual phenomenon (31 December 2019): CB 281 at [136];
(D)noted that there were more than 30 occasions upon which RZMW’s IHMS medical records reported that he had not attended a scheduled mental health or primary health appointment: CB 281 at [140], and further noted RZMW had said that “it was only 30 appointments in three years that he had missed… [and] that he may have forgotten or slept in”: CB 282-283 at [146];
(h)when considering whether RZMW would face a real chance of serious harm because of a lack of access to mental health services or stigma and discrimination against persons with mental illness, observed that the Tribunal’s April 2020 visa cancellation decision noted a submission by RZMW’s representative that remission was not synonymous with cure and it should be inferred that there was a reasonable chance of schizophrenia symptoms re-occurring and there being a concomitant decline in the health of RZMW: CB 283 at [150];
(i)at CB 286 at [158], concluded that in relation to RZMW:
… his diagnosis of schizophrenia appears to be related to the use of ice in 2017 and there have been no symptoms reported by medical practitioners prior to or after that time, with recent reports suggesting he is in remission. The reports from mental health practitioners are consistent that he is not suffering any symptoms and has not for some time.
(j)noted at CB 287–288 at [163], that RZMW has:
… had only one reported psychotic episode in 2017 and has been asymptomatic for schizophrenia for some time, even when he is not taken medication. His psychotic episode had correlation to his use of the drug ice
and
not displayed any symptoms in 2019 or 2020 with medical practitioners having little concern about his mental health and his medication only being prescribed on an as needs basis, with mention that he was in remission even without medication.
(k)was not satisfied “based on the medical reports” that RZMW “displays symptoms of severe mental illness or would do so in the reasonably foreseeable future, which would result in stigma or ostracism”: CB 288 at [164]; and
(l)was not satisfied that RZMW would suffer any significant ostracism or stigma that amounted to serious harm, “given the medical reports indicating no outward manifestations of schizophrenia and that it is in remission”: CB 288 at [164] (emphasis added).
It is evident from the foregoing that the Tribunal concluded that:
(a)RZMW’s schizophrenia was in remission;
(b)RZMW had had only one psychotic incident, and that was in 2017, and that was induced by the use of the drug ice;
(c)apart from the 2017 psychotic incident, RZMW had been asymptomatic both before and after that incident, and at least since the time of that incident had exhibited no outward manifestation of the symptoms of schizophrenia; and
(d)RZMW had been asymptomatic for schizophrenia even when not using his prescribed medication for schizophrenia.
What is controversial is that, in RZMW’s submission, the Tribunal has used its findings of remission and no outward manifestation of the symptoms of schizophrenia in determining that RZMW is not at risk of serious harm for the reasonably foreseeable future.
As indicated at [79] above, this raises the question of what is meant by “remission”, and more particularly, whether remission may be temporary, and if so, then to what extent, or for what period, it may be so, and whether that is for the reasonably foreseeable future.
Having regard to the definitions of “remission” set out at [80]-[82] above, it is clear that remission may not be strictly “temporary”, and that a person in remission may be in a “full remission” over “a period of time” following a previous episode and in which period no disorder-specific symptoms are present, or that remission may involve the “disappearance of symptoms… for a period”. The definitions of “remission”, set out at [80] and [81] above, from the DSM-5 and the OED Online do not preclude, and on their face may extend to, a very lengthy period of remission.
On the evidence before the Tribunal, it was open for the Tribunal to find that RZMW had been in remission for at least the period from 2018 to 2020 inclusive and that apart from the 2017 psychotic incident, had not otherwise exhibited any outward manifestation of any form of psychosis at any other time.
The nature of the “foreseeable future” is such that it is movable and not permanent: CPE15 at [60] per Mortimer J, and it was therefore not incumbent upon the Tribunal (nor, arguably, possible) to fix upon a specific period of time which constituted the reasonably foreseeable future for assessing whether or not RZMW was at risk of serious harm by reason of his schizophrenia if he was returned to Liberia.
It is plain that what the Tribunal did was to consider RZMW’s claims against all of the available evidence, extensively and comprehensively, and then to weigh that evidence – as was its task: Wu Shan Liang, CLR at 282 per Brennan CJ, Toohey, McHugh and Gummow JJ, and reach conclusions in relation to those claims. It was open to the Tribunal on the available probative evidence to conclude that RZMW’s remission might continue for the reasonably foreseeable future (as defined in CPE15), and particularly so where the Tribunal found that RZMW:
(a)had had only one psychotic episode in 2017;
(b)was asymptomatic even when not taking his prescribed medication;
(c)had been asymptomatic and in remission for at least three years (2018-2020);
(d)was not exhibiting the outward manifestations of schizophrenia; and
(e)would not be denied treatment for his mental health conditions in Liberia.
Equally, it was open for the Tribunal to find that RZMW would, for the reasonably foreseeable future, continue to not display symptoms of a severe mental illness, and therefore would not suffer harm, whether by way of being stigmatised or ostracised, if he returned to Liberia.
Finally, the Court notes that it was not just the fact that RZMW was in remission which formed the basis for the Tribunal’s finding that he would not suffer serious harm in the reasonably foreseeable future if he returned to Liberia. The Tribunal also made that finding on the separate basis that RZMW was not outwardly manifesting symptoms of schizophrenia (and not doing so even when not taking his prescribed medication). There was thus a separate and independent basis – apart from the question of remission – for the finding that RZMW would not suffer serious harm in the reasonably foreseeable future if he returned to Liberia.
For the reasons set out at [67]-[94] above, ground 3 of the Further Amended Judicial Review Application is not made out and does not establish jurisdictional error in the Tribunal Decision.
CONCLUSIONS AND ORDERS
The Court has concluded that:
(a)it is in the interests of the administration of justice to grant the Extension of Time Application under s 477(2) of the Migration Act, and there will therefore be an order that the time for the filing of the Judicial Review Application be extended to 18 January 2021;
(b)grounds 1, 2 and 3 of the Further Amended Judicial Review Application have not been made out, and do not establish jurisdictional error in the Tribunal Decision. It follows that there will be an order dismissing the Further Amended Judicial Review Application.
The Court will hear the parties as to costs.
I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 14 March 2022
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