SZUAS v Minister for Immigration
[2019] FCCA 1953
•19 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUAS v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1953 |
| Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant protection visa – whether Tribunal failed to take into account psychological evidence when assessing applicant’s credibility – whether the Tribunal acted unreasonably or irrationally in finding the applicant faced no more than a remote risk of significant harm if he were returned to his country of nationality – whether applicant denied procedural fairness or a real possibility of success by Tribunal failing to disclose 438 Certificate. |
| PRACTICE AND PROCEDURE – Application to amend application – whether arguable case that Tribunal made irrational or unreasonable findings in the light of information that was not before it – no arguable case. |
| Legislation: Family Law Act 1975 (Cth), ss.93A, 94 |
| Cases cited: BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198 |
| Applicant: | SZUAS |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 898 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing dates: | 13 & 16 July 2018 |
| Date of Last Submission: | 16 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 19 July 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Williams |
| Counsel for the Respondents: | Mr J K Hoyle |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
Subject to order 2, the application to file a further amended application in the form of the draft further amended application that was marked “MFI1” is dismissed.
Ground 2 of the amended application as filed be read as including after the words “refouled to Pakistan” the words “given (a) the submissions by the applicant and/or (b) the available country information before the Tribunal”.
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 898 of 2016
| SZUAS |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a citizen of Pakistan, applies for judicial review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).
The applicant applied for a Protection visa on 14 November 2012. A delegate of the Minister declined the application and, on 23 January 2014, the Refugee Review Tribunal (RRT) affirmed the delegate’s decision. On 20 August 2015 this Court, by consent, set aside the RRT’s decision and ordered the Tribunal to consider the applicant’s application for review according to law.[1]
[1] CB223
Claims for protection
The applicant set out his claims for protection in a statutory declaration that formed part of his application for a Protection visa. The applicant claimed as follows:[2]
a)The applicant is a 22-year-old Pashtun male from Parachinar, Kurram Agency, Khyber-Pakhtunhkua, Pakistan, and is a practising Shia Muslim.
b)When he was a student the applicant received several threatening letters “signed by the Taliban warning that if we Shias did not leave Pakistan we would be killed”. The Taliban had road blocks, checking cars randomly, and they usually beheaded any Shias they found.
c)In July 2011, while travelling from Peshawar to Parachinar, the applicant was detained by the Taliban. The Taliban did not identify the applicant as a Shia because he did not carry with him any identification, and he did not carry any scars on his back because he did not believe in flagellation on Ashura day. This incident scared the applicant, and his parents told him he had to discontinue his studies in Peshawar, and leave Pakistan altogether.
d)He fears returning to Pakistan because he is recognisably Shia, the Pakistani Sunnis say Shias are infidels, and they have declared Jihad against Shias all over Pakistan.
[2] CB68-70
Course of proceeding before Tribunal
After the matter had been remitted to the Tribunal, the applicant’s representative provided to the Tribunal a psychologist’s report dated 17 March 2014 which stated the applicant has anxiety and depressive symptoms which have been exacerbated due to the indefinite nature of his immigration status, financial problems, and grief because of the death of his mother. The report further stated the applicant is suffering from physical pain for unknown reasons.[3]
[3] CB364, [15]; CB314-329
The applicant’s representative also provided two further medical certificates. One is dated 7 January 2016 which states that the applicant is “mentally very depressed”, that this was affecting him “pervasively”, that the medical practitioner had seen the applicant three days after the applicant attempted suicide, and that the applicant was in poor mental health and will find it “difficult to concentrate in court and answer questions accurately”.[4] The second medical certificate is dated 25 January 2016. It states that the applicant will require ongoing medical care for his mental health, and that “the current severity of his depression means that it will affect his ability to accurately testify in court”.[5]
[4] CB364, [16]; CB246
[5] CB365, [17]; CB250-251
The applicant’s representative provided submissions dated 24 January 2016 which address the adverse credibility findings of the RRT and the delegate; and provided a number of articles about memory, the effect of emotion, and the difficulties persons seeking asylum have in describing traumatic experiences. The representative also provided recent country information about attacks against Shias.[6]
[6] CB365, [18]
On 28 January 2016 the applicant appeared before the Tribunal. That hearing was adjourned because the applicant was unable to understand the Pashtun speaking interpreter. The applicant again appeared before the Tribunal, and his representative by telephone. After the hearing the applicant provided a “Mental Health Transfer/Discharge Summary” recording he had been admitted into a mental health facility in New South Wales (Hospital Report). The report stated the applicant was suffering from “adjustment disorder”. The report further notes the applicant was discharged, and when discharged his mood was good and he had no self-harm thoughts or ideas.[7]
[7] CB365, [21]; CB243-244
Tribunal’s reasons
The Tribunal did not accept the applicant had given a truthful account of his experiences in Pakistan.[8] The Tribunal found the applicant had given inconsistent evidence, which included the following:
a)The applicant had given inconsistent accounts of the addresses at which he lived in Pakistan. In his form of application the applicant said he resided at three different addresses in Parachinar from birth until 2006, when he resided at a particular hostel, and from 2008 until 2012 where he claimed to have resided in Model Town in Lahore. At his interview before the delegate the applicant said he “kept moving from one place to another in Peshawar” until he relocated to Lahore, and that while in Lahore he kept moving to different suburbs. Further, in the submissions received by the RRT it was claimed that while in Lahore the applicant received threats which required him to change his residence in Lahore, and that he reported these incidents to the police. The applicant gave yet a different account of the addresses at which he resided at the hearing before the RRT.[9]
b)In his statutory declaration the applicant claimed he received threatening letters while in Peshawar, but did not say he received any threatening letters in Lahore. Before the delegate the applicant said that while in Lahore he received four or five threatening letters, and the letters stated that “you are Shia and have to leave, this is a warning and next you will be kidnapped”.[10] In the submission the Tribunal received before the hearing the applicant’s representative stated that the applicant received threats in Peshawar warning that if Shia people did not leave Pakistan they would be killed; that, after locating to Lahore, it was a matter of time before the applicant began to receive threats there also; and, while in Lahore, the applicant received many threatening letters which resulted in him having to change his residence in Lahore.[11] At the hearing before the Tribunal the applicant said he received one letter in Peshawar and one letter in Lahore.
c)In his statutory declaration the applicant said he was detained and questioned by the Taliban but was released because they could not ascertain he was a Shia. Before the delegate, however, the applicant said he was travelling with an army convoy consisting of about 15 vehicles, and that he did so because it was safer for Shias. In a written submission the applicant’s representative provided to the RRT it was claimed that on one occasion when the applicant was travelling from Peshawar to Lahore the Taliban were stopping vehicles and the applicant was questioned; but, although the Taliban suspected him of being a Shia, they let him go because he did not have any identity documents on him or any scarring on his back. The representative also said the applicant experienced a further incident in July 2011 when travelling between Parachinar and Peshawar in a convoy.[12] Before the RRT the applicant said he was travelling in a convoy, but he could not remember the number of vehicles; and he stated that some of the vehicles and the people were kidnapped, some were burnt, and some got away, such as his vehicle. When the applicant was informed that this account differed from that which he had previously given, the applicant told the RRT that he had been stopped on a different occasion when he was travelling from Lahore to Peshawar, but, when the RRT asked the applicant when that occurred the applicant said it was a long time ago and he could not remember the date.[13] Before the Tribunal, the applicant said he was held up by the Taliban while travelling from Peshawar to Parachinar in 2006.[14] The Tribunal found that “the applicant’s account of his experiences in Pakistan at the hand of the Taliban whilst travelling between Parachinar, Peshawar and Lahore have been extremely inconsistent at different times”.[15]
d)Before the RRT the applicant said his father was a member of the Jirga (being a Shia religious council);[16] and before the Tribunal the applicant said his brother had been kidnapped because of the applicant’s father’s involvement with the Jirga.[17] The applicant did not include any such claims in his form of application.
[8] CB366, [24]
[9] CB366-367, [25]-[26]
[10] CB367, [27]
[11] CB367, [28]
[12] CB368-369, [34]
[13] CB369, [35]
[14] CB369, [36]
[15] CB369, [37]
[16] CB370, [39]
[17] CB370, [40]
The Tribunal did not accept the applicant’s explanations for the inconsistencies. Those explanations included the applicant’s being confused; his having had a difficult trip on the boat; he was in an immigration centre, and his mind was not working; he forgot certain incidents; he was not asked about specific matters, such as his father’s role; the applicant’s psychological difficulties due to the passing of his mother; scientific and psychological information concerning a person’s inability to recall or to provide a consistent account of his experiences in Pakistan; and difficulties with the applicant’s girlfriend.[18]
[18] CB372-373, [46]-[49]
The Tribunal accepted the applicant suffers from psychological problems and is distressed and worried about his migration outcome, and that this may have been compounded by a break up with his girlfriend; that it is appropriate to have regard to the passage of time, trauma, the applicant being relatively young, being away from his family, and his undertaking a dangerous boat journey and living in difficult conditions in Asia before embarking on his journey to Australia.[19] The Tribunal, however, said that even taking these matters into account it did not accept it is unreasonable to expect the applicant to be able to recall basic facts about two incidents and threats from the Taliban.[20] Further, the Tribunal did not accept the applicant has “catastrophic memory problems”, and was “drawn to the conclusion that he has manufactured the entirety of his claims regarding his experiences in Pakistan, and it is for this reason that his evidence has altered considerably at each stage of the application and review process”;[21] and the Tribunal did not accept that the applicant’s inability to recall basic claims or to provide at least a reasonably consistent account of his experiences is due to any traumatic events “as posited by the psychologists who have no direct knowledge of the applicant’s experiences in Pakistan” but had instead “relied on the applicant’s account of those experiences”.[22] The Tribunal also did not accept the applicant had attempted to take his life.[23] Finally, although the Tribunal was prepared to accept the applicant’s mother is deceased, it did not accept the applicant’s mother passed away shortly before the hearing with the RRT, or that this affected the applicant’s ability to give evidence to the RRT.
[19] CB373-374, [51]
[20] CB373, [51]
[21] CB373-374, [51]
[22] CB374, [51]
[23] CB374, [53]
The Tribunal then considered whether, notwithstanding its not having accepted the applicant’s claims based on harm or feared harm from the Taliban, the applicant had a well-founded fear of persecution because he is a Shia. The Tribunal referred to information the applicant’s representative had provided. Relevant to the grounds on which the applicant relies is the following information:
a)Department of Foreign Affairs and Trade (DFAT) 2016, DFAT Thematic Report: Shias in Pakistan, 15 January 2016 (2016 DFAT Report).[24]
b)Annual Security Report 2014 issued by the FATA Research Centre (FRC).[25]
c)Security Report for April-June 2015 prepared by the FRC.[26]
d)Security Report for July-September 2015 prepared by the FRC.[27]
[24] Referred to in the Tribunal’s reasons, and a copy has been admitted into evidence, subject to relevance, and marked Exhibit A
[25] Referred to in the Tribunal’s reasons, and a copy has been admitted into evidence, subject to relevance, and marked Exhibit D
[26] Referred to in the Tribunal’s reasons, and a copy has been admitted into evidence, subject to relevance, and marked Exhibit C
[27] Referred to in the Tribunal’s reasons, and a copy has been admitted into evidence, subject to relevance, and marked Exhibit B
After referring to country information and to submissions made on behalf of the applicant, the Tribunal made the following findings:
a)The Taliban and its associated groups have waged a campaign of violence against Shias throughout Pakistan.[28]
b)The applicant is identifiable as a Bangash Pashtun Shia, due to his accent, appearance, name, and identity documents.[29]
c)Parachinar, which is located in Upper Kurram in the Federally Administered Territories (FATA), has been the subject of considerable violence since a least April 2007, and that since 2009 the fighting has claimed thousands of lives and injured thousands more.[30]
d)The Taliban view the Turi/Bangash tribes as their enemy because of their refusal to allow the Taliban to use their properties to access Afghanistan, and due to their willingness to organise militias to fight the Taliban and other extremist groups.[31]
e)The Parachinar-Thall road, which is the main access road between the Kuram Agency and other parts of Pakistan, has been subjected to considerable violence from Sunni extremists directed primarily at Shias travelling on that road.[32]
f)Attacks as reported in the FRC 2014 security report and in the FRC second quarter 2015 security report had occurred.
[28] CB378, [63]
[29] CB378, [63]
[30] CB378-379, [63]
[31] CB378-379, [63]
[32] CB379, [64]
Given these findings the Tribunal accepted that, at the time the applicant left Pakistan in 2012 , his area in Parachinar and the surrounding districts were subject to considerable violence, and that “until relatively recently, as a Shia Bangash Pashtun from Parachinar that there would have been a real chance serious harm for this reason”.[33] The Tribunal found, however, that “the independent evidence before the Tribunal indicates there has been considerable stabilisation in the region in 2014 and 2015 which is reported not only by the Department of Foreign Affairs and Trade but also other sources”.[34] The Tribunal referred to a number of sources, including the following:
a)Although in its 2015 annual report the FRC said 2015 was a turbulent year, compared with 2014 there was a significant decline in militancy and counter militancy related incidents. The FRC recorded a 40% decline in militant violence in the Federally Administered Tribal Areas (FATA) compared to 2014, and that “intensive hard core counter terrorism measures were undertaken by the security forces in 2015”.[35]
b)The Pak Institute for Peace Studies and the Centre for Research and Security Studies reported that sectarian violence decreased in 2014, with the first-mentioned institution putting the decline to 35%.[36]
c)The 2016 DFAT Report stated that the 2013 truce between the Shia Turis and Sunni Bangash remain in place; there has been a downward trend in violence since 2013, particularly following the commencement of “Operation Zarb-e-Azb” in 2014;[37] the Thall-Parachinar Road remains open and there have been no security incidents on that road in 2015;[38] there is a low level of sectarian violence associated with FATA, although the level of generalised violence varies throughout the FATA;[39] in 2015 113,311 families returned to their places of origin in FATA;[40] and there is a willingness, although it is hindered by financial constraints, by the Pakistani authorities to protect Shia communities.[41]
d)The UNHCR report on a mission to Kuram stated that general peace has been restored in Upper Kuram and Lower Kuram.[42]
e)A report from the United States Institute of Peace states that following the attack on an army run school at Peshawar, the government formulated a national action plan to deal with terrorism, and has provided police officers and rangers with sweeping new powers, and has provisions to take action against sectarian groups including against hate speech and the protection of religious minorities.[43]
[33] CB380, [66]
[34] CB380, [66]
[35] CB380, [66]
[36] CB380, [67]
[37] CB381, [67]
[38] CB381, [67]
[39] CB381, [68]
[40] CB381, [68]
[41] CB381, [69]
[42] CB381, [68]
[43] CB381, [69]
The Tribunal then made the following findings:[44]
Having considered all of the evidence, although the Tribunal accepts evidence of continued attacks against Shias in Parachinar and the surrounding areas, there have been significant changes in the security situation in Parachinar since the applicant’s departure some four years ago, and since he made his application to the Department and the number of attacks in Parachinar have significantly reduced, such that prior to the December 2015 attacks, there had been only sporadic attacks in surrounding areas for almost three years. The Tribunal accepts that there will be sporadic attacks in surrounding areas for almost three years. The Tribunal accepts that there will be continued instability as a result of the Pakistani authorities’ struggles with terrorist, militant and sectarian groups. However, the Tribunal is satisfied that the information indicates that a number of people have returned to the Upper Kurram and the UNCHR [sic] has reported that key informants from five villages in the Upper Kurram expressed satisfaction with the security situation and share the view that they felt safe and secure. Whilst DFAT has continued to note that there is generalised violence in the Kurram, the areas where a level of risk is present and the generalised violence is mostly associated with ongoing military activities in North Waziristan and Khyber Agencies. The Tribunal accepts that there is some level of risk to the applicant in the context of generalised violence, but on the basis of all of the evidence before it the Tribunal finds that this risk remote. . . . The Tribunal considers that the fact that the applicant’s family has remained in the area and the Tribunal has not accepted any harm towards them, that the applicant has no particular profile that will result in him facing serious harm from the Taliban, Islamic State, Sunnis or other extremist groups in Parachinar.
[44] CB383, [72]
Given these findings, the Tribunal was not satisfied the applicant had a well-founded fear of harm because of his Shia religion, or his Bangash/Pashtun ethnicity, or his actual or imputed political opinion against the Taliban or other extremist Sunni groups, or from Islamic State, or because he might be viewed as supportive of the West.[45] Nor was the Tribunal satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan that there is a real risk that he would suffer significant harm.[46]
[45] CB384, [74]
[46] CB385, [76]
Grounds of application
The applicant relies on the grounds set out in the amended application filed on 6 June 2018.
At the hearing before me it appeared that counsel for the applicant proposed to rely on matters that did not fall within any of the grounds stated in the amended application. I provided counsel for the applicant an opportunity to formulate an amendment which reflected the matters on which he relied. Counsel formulated the proposed amendment, which relates to ground 2 of the amended application. The proposed amendment largely consists of the addition of a new paragraph 2.1, and is contained in a draft further amended application that I marked “MFI1”. I heard submissions on whether the applicant should be granted leave to amend the application, with the Minister submitting I should not allow the amendment because it was not arguable. I reserved my judgment on that application, and heard submissions on all other grounds contained in the amended application. I indicated to the parties that if I were to decide that the amendment should not be made, I would make an order dismissing the applicant’s application for leave to amend. If, on the other hand, I were to allow the amendment, I would permit the Minister an opportunity to respond to the amendment.
Ground 1
The first ground in the amended application is as follows:
Ground 1: The Tribunal failed to take into account relevantly, the mental state of the applicant and as such, there was an insufficient logical or evidentiary basis for Tribunal’s adverse credibility finding against the applicant.
1. The Tribunal failed to take into account relevantly, or failed to give genuine, proper, or realistic consideration to the mental state of the applicant when considering his credibility. As a consequence, there was an insufficiently logical or evidentiary basis for the Tribunal to make the adverse credibility finding against the applicant at [24] and [54] of the decision record.
This paragraph is followed by a heading “Particulars” under which there are eight paragraphs divided under four sub-headings. The first sub-heading is “The protection claims”, and it contains paragraph (a), which sets out the substance of the applicant’s claims as the Tribunal summarised them in paragraph 23 of its reasons.
The second sub-heading is “The remittal of the first Tribunal”, and contains paragraph (b). The paragraph refers to the consent order made on 20 August 2015,[47] and a letter dated 10 December 2013 from the applicant’s representative regarding the applicant’s psychological difficulties. The paragraph also refers to the Minister having conceded that the RRT failed to take into account the applicant’s psychological difficulties due to the passing of his mother when making adverse credibility findings.
[47] CB223
The third sub-heading is “The medical evidence regarding the mental state of the applicant before the second Tribunal”, and contains paragraphs (c) – (g). These refer to the psychologist’s report dated 17 March 2014,[48] the medical certificates dated 7 and 25 January 2016,[49] the submissions dated 24 January 2016 the applicant’s representatives provided to the Tribunal which addressed the credibility concerns expressed by the RRT,[50] and the “Mental Health Transfer/Discharge Summary”, that is, the Hospital Report.[51]
[48] Being the report referred to at [15] of the Tribunal’s reasons.
[49] Being the certificates referred to at [15] and [16] of the Tribunal’s reasons.
[50] Being the submissions referred to at [18] of the Tribunal’s reasons.
[51] Being the report referred to at [21] of the Tribunal’s reasons.
The fourth sub-heading is “The adverse credibility findings by the Tribunal”, and contains one paragraph which includes the following:
For the same reasons conceded by the Minister for the first remittal, the second Tribunal failed to take into account relevantly, or failed to give genuine, proper or realistic consideration to the applicant’s psychological difficulties when making the adverse credibility findings at [24] and [54] of the decision record. As a consequence, there was an insufficiently logical or evidentiary basis for the Tribunal to make the adverse credibility finding against the applicant at [24] and [54] of the decision record.
Paragraph (h) then reproduces paragraph 24 of the Tribunal’s reasons and most of paragraph 54 of those reasons.
It is apparent that ground 1, as stated, is directed to the Tribunal’s findings in paragraphs 24 and 54 of its reasons. In paragraph 24 of its reasons, the Tribunal:
a)found the applicant did not give a truthful account of his experiences in Pakistan;
b)accepted the applicant is suffering from depression and associated medical and psychological conditions, and his medical practitioner was told he had a “suicide attempt”;
c)did not accept that information contained in the Hospital Report to the effect that the applicant was suffering suicidal ideas while at home but did not attempt self-harm or to take his own life constituted a “suicide attempt”; and
d)did not accept the applicant’s memory has been “catastrophically” impaired or affected by his experiences.
In paragraph 54 of its reasons the Tribunal, among other things:
a)did not accept the applicant’s mother died before the first hearing, or that this affected his ability to give evidence to the RRT;
b)found the applicant’s evidence about his mother’s death and the effect that had on him to be extremely problematic;
c)was not satisfied the medical or psychological reports overcome the problematic nature of the applicant’s evidence.
Parties’ submissions
The applicant’s written submissions repeat the grounds set out in the amended application, and refer to a number of authorities.
In his oral address counsel for the applicant submitted the Tribunal made the same error the Minister agreed the RRT had made as noted in the orders setting aside the RRT’s decision. Counsel also submitted that the medical and psychological evidence that was before the Tribunal was such that no reasonable Tribunal could not but have accepted it. Counsel submitted it was not open to the Tribunal to find the Hospital Report did not refer to attempted suicide only because it said the applicant had suicidal thoughts, submitting there is “a fine line between suicidal ideation and actual harm, and we would say there must be an acceptance on the medical report”. Counsel accepted the Tribunal correctly identified in its reasons the relevant medical and psychological evidence relating to the applicant’s memory, but submitted the Tribunal acted illogically by not accepting it. Counsel submitted that in not accepting the applicant’s claims that his mother had died before the first hearing the Tribunal “rejected what the Minister conceded” when he agreed to the setting aside of the RRT’s decision.
It will be seen, then, that in support of ground 1 the applicant makes three submissions. The first is that the Tribunal made the same error the Minister conceded the RRT had made when the RRT affirmed the delegate’s decision. The second is that the Tribunal did not actively consider the medical evidence that was before it in relation to the applicant’s mental condition. The third submission is that, although the Tribunal purported to consider the medical reports, it acted irrationally or unreasonably in not accepting the medical evidence as an explanation for the applicant’s inconsistent evidence. It may be the applicant also submits that by consenting to orders setting aside the RRT’s decision the Minister made admissions which precluded the Tribunal from making findings that contradicted those concessions.
The Minister, on the other hand, submits the Tribunal considered, and considered in detail, the medical evidence on which the applicant relied; and that it gave reasons that were reasonably open to it for not accepting that evidence as an explanation for the applicant’s having given inconsistent evidence.
Did the Tribunal make the error the Minister conceded the RRT made?
I do not accept the Tribunal made an error of the type the Minister conceded the RRT made. The Minister conceded that in finding the applicant’s evidence had such a degree of inconsistency in relation to his personal experiences in Pakistan as to justify the finding that the applicant’s claims were without basis, the RRT “failed to refer to the applicant’s claim to have experienced psychological difficulties due to the passing of his mother”. That clearly is not an error the Tribunal made. It referred to the applicant’s claim, made by his representative, that the Tribunal should have regard to the applicant’s psychological difficulties due to, among other things, “the passing of his mother”.[52] The Tribunal also questioned the applicant about his claim that his mother had died. In particular, it asked the applicant why he had not informed the RRT that his mother had died; and it asked the applicant when his mother died, and in particular whether she died before or after the hearing before the RRT.[53] The Tribunal considered whether it should accept the applicant’s claims about the death of his mother and the effect it had on his psychological difficulties. It did not, however, accept those claims. The Tribunal relied on the applicant’s not having informed the RRT of his mother’s death, and the applicant’s struggling to recall the day his mother died, particularly given that in a post-hearing submission the applicant’s representative sent to the RRT it was stated the applicant’s mother had died before the RRT hearing.[54] The Tribunal also considered whether, assuming the applicant’s mother did die before the date of the RRT hearing, the medical and psychological evidence satisfied it that this could explain what the Tribunal found to be the applicant’s “extremely problematic” evidence. It found it did not; and that was because it was not satisfied “that the medical practitioners or psychologists have any personal knowledge of the applicant’s experiences in Pakistan, apart from what has been reported to them by the applicant”.[55]
[52] CB372
[53] CB373, [49]
[54] CB374, [53]
[55] CB375, [54]
Did the Tribunal actively consider the medical evidence?
I do not accept the Tribunal did not actively consider the medical evidence on which the applicant relied. As I have already noted, the Tribunal identified the medical evidence, and the submissions the applicant made on the basis of those submissions. The Tribunal also considered that evidence. That is evident from the Tribunal’s having accepted the applicant suffers from psychological problems and is distressed and worried about his migration outcome. It is also evident from the Tribunal’s referring to the medical and psychological evidence and finding it was not satisfied that the evidence explained what the Tribunal found was the applicant’s inconsistent evidence. Its findings were based on a number of matters. First, the applicant did not raise his psychological difficulties as a reason for poor memory until after the RRT made its decision. Second, the Tribunal considered the medical and psychological evidence itself which it found did not indicate the applicant “has “catastrophic” memory recall or an inability to recall very basic facts relating to his claims for protection”.[56] That was a finding open to it. The psychologist’s report dated 17 March 2014 referred to the applicant’s having displayed a “relatively good insight into his experiences, as evidenced by his ability to state his past traumatic experiences, current worries and escalating anxiety”.[57] And although the two medical certificates dated 7 and 25 January 2016 expressed the opinions that the applicant would find it “difficult to concentrate in court and answer questions accurately”,[58] and that “the current severity of his depression means that it will affect his ability to accurately testify in court”,[59] they do not say the applicant had catastrophic memory loss. Nor do they express opinions about the applicant’s mental health at the time he had given what the Tribunal found was inconsistent evidence, and how this could have impacted on the applicant’s ability to give accurate evidence.
[56] CB366, [24]
[57] CB321
[58] CB364, [16]; CB246
[59] CB365, [17]; CB250-251
At one point of its reasons the Tribunal said that the psychologists had posited that the applicant’s inability to recall basic claims or to provide at least a reasonably consistent account of his experience is due to “traumatic events”.[60] That, however, is not an opinion expressed by any of the reports that referred to the applicant’s mental health. It is reasonable to suppose that the Tribunal here had in mind the journal article on which the applicant’s representative relied in her written submissions dated 24 January 2016 for submitting that the applicant’s inconsistencies as identified by the RRT “can be explained by stress, memory loss and the destructive impact of trauma on memory function” and that, “the inconsistencies in the Applicant’s account are consistent with the Applicant’s claimed position”.[61] In any event, the Tribunal did not accept these opinions because the psychologists “have no direct knowledge of the applicant’s experiences in Pakistan and have relied on the applicant’s account of those experiences”.[62]
[60] CB374, [51]
[61] CB264. The journal article is at CB297.
[62] CB374, [51]
Did the Tribunal act irrationally or unreasonably in not accepting the medical evidence?
This part of the applicant’s claims assumes that the medical reports that were before the Tribunal were reasonably capable of supporting a finding that the inconsistencies in the applicant’s evidence the Tribunal identified, and on which it relied for not accepting the applicant’s claims, is to be explained by the applicant’s mental health, and in particular the mental difficulties caused by the applicant’s claimed loss of his mother. That assumption is incorrect. As I have already noted, the psychologist’s report dated 17 March 2014 referred to the applicant’s having displayed a “relatively good insight into his experiences, as evidenced by his ability to state his past traumatic experiences, current worries and escalating anxiety”.[63] And although the two medical certificates dated 7 and 25 January 2016 expressed the opinions that the applicant would find it “difficult to concentrate in court and answer questions accurately”,[64] and that “the current severity of his depression means that it will affect his ability to accurately testify in court”,[65] they did not express any opinion about whether these conditions of the applicant explained or could explain inconsistencies in the applicant’s account of his past in Pakistan. There is nothing in the reports that could reasonably suggest the applicant brought to the attention of those who prepared the reports that he had given inconsistent accounts of what had occurred to him in Pakistan. For this reason alone, the Tribunal did not act irrationally or unreasonably by relying on the applicant’s inconsistencies as a ground for not accepting his claims about what occurred to him in Pakistan, notwithstanding the reports concerning the applicant’s mental health that were before it.
[63] CB321
[64] CB364, [16]; CB246
[65] CB365, [17]; CB250-251
Even if the psychological reports and other materials that were before the Tribunal could reasonably be interpreted as conveying the opinion that the applicant’s inconsistent evidence could be explained by the applicant’s mental difficulties, or by his claimed trauma, it was reasonably open to the Tribunal not to accept an opinion to that effect for the reasons it gave, namely, that the reports themselves were based on what the applicant had reported about his past events.
Tribunal bound by concession made by Minister
To the extent the applicant intends to submit the Tribunal was bound by any concession the Minister made when consenting to the RRT’s decision being set aside, I would not accept such a submission. The Tribunal’s jurisdiction is for it to review the delegate’s decision; and it would be contrary to its tasks if it were to be bound by what is said to be a concession made by some other person. It was for the Tribunal itself to consider the applicant’s claims and evidence and to make findings on the basis of those claims and evidence. In any event, the only concession the Minister made is that the RRT “failed to refer to the applicant’s claim to have experienced psychological difficulties due to the passing of his mother”. Whether or not the RRT had made such an error was not relevant to any question the Tribunal considered or was required to consider on the applicant’s application for review.
Conclusion on ground 1
For these reasons, ground 1 of the amended application fails.
Ground 2
It would be convenient if I consider ground 2 as it currently stands separately from the applicant’s application to amend ground 2 by adding a new paragraph 2.1. Ground 2 begins as follows (the underlining indicates an additional but not substantive proposed amendment):
Ground 2: There was an insufficient logical or evidentiary basis for the finding by the Tribunal that the applicant did not face a real risk of harm if refouled to Pakistan.
2.There was an insufficiently logical or evidentiary basis for the finding by the Tribunal that the applicant did not face a real risk of harm if refouled to Pakistan, given (a) the submissions by the applicant and/or (b) the available country information before the Tribunal.
This paragraph is followed by a heading “Particulars” under which there are eight paragraphs divided under two sub-headings. The first is “The findings by the Tribunal”. Here, the application records the following findings:
a)The Taliban and its associated groups have waged a campaign of violence against Shias throughout Pakistan.[66]
b)The applicant is identifiable as a Bangash Pashtun Shia, due to his accent, appearance, name, and identity documents.
c)Parachinar, which is located in Upper Kurram in the FATA, has been the subject of considerable violence since a least April 2007 when violence erupted between Turi Shias and members of the local Sunni Bangash tribe, after “objectionable” slogans were displayed and chanted during a religious procession.
d)The Taliban view the Turi/Bangash tribes as their enemy because of their refusal to allow the Taliban to use their properties to access Afghanistan, and due to their willingness to organise militias to fight the Taliban and other extremist groups, and that this has resulted in a significant amount of violence against Turi/Bangash Shias.
e)The Parachinar-Thall road, which is the main access road between the Kuram Agency and other parts of Pakistan, has been subjected to considerable violence from Sunni extremists directed primarily at Shias travelling on that road; that when it was reopened there were continued sporadic attacks by militants against Shias; and the presence of military checkpoints and escorts at that time did not prevent militants from attacking convoys travelling on the road.
[66] CB378, [63]
Under the heading “Jurisdictional error”, the paragraph states that “the Tribunal erred by” making the findings contained in paragraph 72 of its reasons, and this paragraph of the particulars reproduces that part of paragraph 72 commencing with the words “although the Tribunal accepts evidence” and ending with the words “that this risk is remote”. Finally, in paragraph (h), the amended application states:
On the basis of the submissions and country information before the Tribunal, the Tribunal erred by finding the risk was remote, after finding that there was some level of risk to the applicant.
The use of the word “erred” to describe the jurisdictional error the applicant claims the Tribunal made by itself seeks merits review of the Tribunal’s findings. I will interpret the ground, however, as claiming that, given the findings it made, it was irrational or otherwise not reasonably open to the Tribunal to conclude, as it did, that the risk the applicant would face on his return to Pakistan was remote.
The applicant repeats in his written submissions the ground and particulars substantially as stated in ground 2 of the amended application. In his written submissions, the Minister submits that although the Tribunal made the findings the applicant submits it made, it considered other country information that was before it that was relevant to the assessment of the risk of harm, and that, applying the correct construction of the “real chance test”, concluded on grounds that were reasonably available to it to conclude that the applicant faced no more than a remote risk of harm.
In oral address counsel for the applicant submitted the Tribunal made a jurisdictional error by finding the applicant faced only a remote chance of harm if he returned to Pakistan on the basis, not only of country information that was before the Tribunal, but also country information that was not before the Tribunal. I will in the next section of these reasons identify the country information on which counsel relied, and consider whether it is open to the applicant to rely on such material. In this part of my reasons, I will consider ground 2, as it currently stands, which, in short, I have interpreted as claiming that, given the findings the Tribunal made which are identified in the particulars to ground 2 of the amended application, it was not reasonably open, or it was irrational, for the Tribunal to find that the applicant faced only a remote risk of harm if he returned to Pakistan.
I am not satisfied it was not reasonably open to or irrational for the Tribunal to conclude the applicant faced no more than a remote risk of harm if he were returned to Pakistan. In addition to the findings on which the applicant relies, the Tribunal identified other country information (being the country information I have set out in paragraph 13 of these reasons), weighed this information against the findings it made, and then reasoned to the conclusion in the manner set out in paragraph 72 of its reasons (which I have reproduced in paragraph 14 of these reasons).
Ground 2 of the amended application, therefore, as it currently stands (including the proposed insubstantial amendment to that ground), fails.
Leave to rely on ground 2.1
The proposed ground 2.1 is as follows:
Ground 2.1: The applicant seeks leave to adduce and rely onfresh [sic] evidence in the form of country information regarding the security situation in Pakistan, which was not before the Tribunal
The applicant seeks leave to adduce fresh evidence in the form of the most recent country information regarding the deterioration in the security situation in Pakistan, which was not before the Tribunal, giving rise to a jurisdictional error.
Particulars
a)DFAT provides the Department of Home Affairs “thematic reports” for protection status determination purposes.
b)The FATA Research centre, is a non-partisan, non-political and non-government research organisation in Islamabad.
c)The DFAT 2015 and 2016 FATA reports for 2014 and 2015 were relied upon by the Tribunal in its decision.
d)Since that decision, FATA has issued a new Security Report for the First Quarter 2018, which found at Chapter 1 that during the first Quarter (January-March) 2018, whilst there was a downward trend in terrorism and counterterrorism, a total of 43 terrorism and counter-terrorism incidents were recorded.
e)The most [recent] DFAT Country Information report on Pakistan, states that FATA experiences higher rates of militant and sectarian violence and at [2.46] in the first six months of 2017, at least 11 incidents of sectarian violence killed around 220 people across Pakistan.
f)The Tribunal’s decision was made in excess of jurisdiction because of the absence of a jurisdictional fact.
Counsel for the applicant relied on the judgments of the High Court in CDJ v VAJ.[67] During oral address counsel sought to demonstrate, at least substantially by reference to material that was not before the Tribunal, that the Tribunal’s conclusion that the applicant faced no more than a remote chance of harm if he were to return to Pakistan was unreasonable or irrational.
[67] [1998] HCA 67
It is not reasonably arguable that material that was not before the Tribunal is available to a court exercising judicial review jurisdiction for the purpose of determining whether the Tribunal made a finding that was unreasonable or irrational.
a)First, CDJ does support such proposition. The question in CDJ was whether the Full Court of the Family Court erred in the exercise of the discretion it had under s.93A(2) of the Family Law Act 1975 (Cth) (FL Act) to receive further evidence on questions of fact. That power was conferred in aid of the exercise of the appellate jurisdiction conferred on the Full Court of the Family Law Court by s.94 of the FL Act. Under s.94(2) of the FL Act the Full Court of the Family Law Court has power to reverse or vary the decree or decision that is the subject of appeal, and make such decree or decision as, in the opinion of the Full Court, ought to have been made. The nature of the Full Court’s appellate jurisdiction is entirely different from the jurisdiction that is conferred on this Court under s.476 of the Migration Act 1958 (Cth) (Act) which is limited to granting relief to certain classes of decision that have been made as a result of jurisdictional error.
b)Secondly, whether or not the applicant faced a real risk of significant harm if he were to be returned to Pakistan is not a jurisdictional fact. Whether or not a person will suffer such risk can only be determined in the circumstances provided for by the Act, and the regulations made under the Act, by the Minister and, on review, by the Tribunal. More particularly, whether an applicant for a protection visa satisfies the conditions for the grant of such visa turns on the Minister or, on review, the Tribunal– not a court - being satisfied that the criteria for the grant of such a visa have been met.
c)Third, given the question whether there is a real risk the applicant will suffer significant harm if he were to be returned to Pakistan is not a jurisdictional fact, it is not arguable that the Tribunal’s findings in relation to that question are illogical or otherwise unreasonable because information that, through no breach of any duty by the Tribunal, was not before it might reasonably be considered as being capable of supporting a finding that the applicant would face a real risk of harm if he were to be returned to Pakistan.
I therefore propose to dismiss the applicant’s application to file a further amended application in the form of “MFI1” to the extent that it includes ground 2.1.
Ground 3
Ground 3 of the amended application relevantly is as follows:
Ground 3: The Tribunal failed to consider relevantly, whether the applicant can receive medical health services in Pakistan
3.The second respondent failed to take into account relevantly, whether the applicant can received services in Pakistan.
Particulars
a)For the reasons articulated at ground (1)(a), it was a core claim of the applicant that he suffered from mental health issues and it was therefore an integer of the applicant’s claims that he will not be able received [sic] adequate mental health services if refouled to Pakistan.
. . . .
e)On 4 September 2015, a delegate to the Minister issued a certificate under section 438(1)(a) of the Migration Act 1958 (Cth), with regard to the following “documents” under folios 82; 110-121; 139; 152; 155; 173-179; 183-184; 185 of file number CLF 2012/2360291-9
f)Exhibited and marked as “BP-2” was correspondence concerning the applicant’s request to the Assistant Minister for Immigration and Border Protection for the exercise of the public interest power under section 417 of the Migration Act 1858 (Cth), including Schedule N2104/047 dated 9 April 2014.
. . . .
Jurisdictional error
h)At no stage on the face of the decision record, did the Tribunal consider [the] core claim of the applicant regarding his mental health and whether the applicant can receive mental health services in Pakistan under the definition of serious harm, pursuant to the refugee criterion or the definition of significant harm, pursuant to the complementary criterion or under the Ministerial guidelines.
The reference to “BP-2” is a reference to the documents that have been so marked and exhibited to the affidavit of Ms Bonnie Perris made on 20 February 2018. Ms Perris is a solicitor employed by the solicitor on the record for the Minister. Ms Perris annexes a copy of a certificate issued purportedly under s.438(1)(a) of the Act (438 Certificate) which identifies the documents referred to in paragraph (e) of the particulars to ground 3 and states that their disclosure would be contrary to the public interest because they “contain information relating to an internal working document and business affairs”. Ms Perris describes the documents covered by the 438 Certificate as follows:
a)a disclosure decision-checklist;
b)an irregular maritime arrival entry interview dated 28 September 2012;
c)correspondence from the Legal Coordination Services to the RRT regarding this Court’s order setting aside the RRT’s decision; and
d)correspondence concerning the applicant’s request to the Assistant Minister for Immigration and Border Protection for the exercise of the public interest power under s.417 of the Act.
Ms Perris also deposed that the Minister makes no claim for privilege over these documents, and does not seek any orders for confidentiality over the documents.
Ground 3 relies on the document described as “Schedule NS2014/047” (Schedule NS2014/047 document) that is attached to an internal memorandum to the Assistant Minister for Immigration and Border Protection stamped “received 16 Apr 2014”. The memorandum described the attached document as “summarising requests made for the exercise of your public interest power under section 417 of the Act”. The attached document contains details in relation to the applicant. The applicant relies on that section of the document titled “Health”. That section refers to the psychologist’s report dated 17 March 2014 and then states the following:
· There is no information to indicate that his health issues are due to any harm suffered in Pakistan or that they would prevail if he were to return to Pakistan in the future, for a Convention or any other reasons or would cause irreparable harm and continuing hardship. The psychologist notes in the assessment that he did not report any previous experiences of torture, arrest or incarceration, although he reported witnessing bombings, attacks, beatings and human rights violations.
· It is accepted that the standard medical care in Pakistan may be less than ideal and not comparable to that Australia; however, there is no information to indicate that [the applicant] will be subject to discrimination in being able to access medical care if he requires it.
The applicant repeats in his written submission the ground and particulars substantially as stated in ground 3 of the amended application. In his oral submissions counsel for the applicant referred to another document covered by the 438 certificate, being correspondence from the Legal Coordination Services to the RRT regarding this Court’s order setting aside the RRT’s decision.[68] Counsel submitted that this document together with the Schedule NS2014/047 document ought to have led the Minister and the Tribunal to understand that the applicant’s mental health and access to mental-health “was a core part of his claim”. The Minister, on the other hand, submits that no such claim arose on the material before the Tribunal.
[68] Page 37 of Exhibit BP-2
The principles relevant to determining whether a claim is before a Tribunal are well established; and it will be sufficient if I refer to two authorities. The first is NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2)[69] where the Full Federal Court said:
a)The “function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances”; and neither “the delegate nor the Tribunal is obliged to consider claims that have not been made”.
b)The Tribunal must “deal with the case raised by the material and evidence before it”, and the “question, ultimately, is whether the case put by the [applicant] before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it”.
c)That does not mean, however, the Tribunal “is only required to deal with claims expressly articulated by the applicant”. On the other hand, the Tribunal “is not required to consider a case that is not expressly made or does not arise clearly on the materials before it”.
[69] [2004] FCAFC 263
The second authority is NAVK v Minister for Immigration and Multicultural and Indigenous Affairs where Allsop J (as his Honour then was) explained when it could be said a claim which was not expressly made may nevertheless be considered to have been raised: [70]
From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61]. As the Full Court said at [63] much depends on the circumstances. Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.
[70] [2004] FCA 1695, at [15]
In my opinion, a claim based on the applicant’s mental health and access to mental-health services in Pakistan did not reasonably arise from the documents on which the applicant relies, whether those documents are considered alone or in the broader context of the claims the applicant expressly made and the material that was before the Tribunal. Considered alone, the effect of the information contained in the documents on which the applicant relies goes no further than saying that, although the health system in Pakistan is less than ideal, and not comparable to Australia’s health system, there is nothing to suggest the applicant will be denied access to those services. When considered in the broader context, although psychological and other evidence was presented to the Tribunal, it was presented for the purpose of explaining the inconsistencies in the applicant’s evidence.
Ground 3, therefore, fails.
Ground 4
Ground 4 of the amended application relevantly is as follows:
Ground 4: The non-disclosure of information under section 438 of the Migration Act 1858 (Cth)
4.1The decision of the Tribunal was affected by jurisdictional error on the grounds that:
(i)The “documents” purportedly subject to the principle of public interest immunity and the claim of non-disclosure pursuant to section 438 certificate were internal working documents and did not relate to a matter permitted under section 438(1) of the Migration Act 1958 (Cth), with the result that the certificate was invalid. For the Tribunal to proceed or act on an invalid certificate was not a process according to law and of itself constituted jurisdictional error;
(ii)If the Tribunal proceeded on the basis that the certificate under section 438 of the Migration Act 1958 (Cth) was valid, it is entirely unclear how the Tribunal considered the potential operation of s 438(3) or whether it considered s 438(3) at all. As such, there was a denial of procedural fairness and accordingly, jurisdictional error is established.
(iii)The non-disclosure of the relevant documents gave rise to practical injustice, giving rise to reviewable error.
4.2As a consequence, the non-disclosure of information under section 438(1)(a) of the Migration Act 1958 (Cth) was not in accordance with the principle of “substantial justice” pursuant to section 420 of the Migration Act 1958 (Cth), which impaired the ability of the applicant to present evidence and arguments pursuant to section 424AA or 425 of the Migration Act 1958 (Cth) and ultimately, resulted in the failure by the Tribunal to review the decision pursuant to section 414 of the Migration Act 1958 (Cth) and/or resulted in a constructive failure by the Tribunal to exercise jurisdiction and accord procedural fairness.
These paragraphs are followed by six paragraphs under the heading of “Particulars”. The paragraphs refer to the issue of the 438 Certificate, and describe the documents covered by the 438 Certificate. It is then alleged that the Tribunal considered the documents but did not disclose their existence to the applicant, and in particular, the documents described in paragraph (j)(iv) of the particulars, namely, “correspondence concerning the applicant’s request to the Assistant Minister for Immigration and Border Protection for the exercise of the public interest power under section 417 of the Migration Act 1958 (Cth), including Schedule N2104/047”. Finally, it is alleged that the non-disclosure of this document gave rise to a practical injustice because at “no stage on the face of the record did the Tribunal put to the applicant the information contained in the Ministerial intervention, giving rise to a practical injustice for a denial of procedural fairness or a reasonable apprehension of bias”.
At the hearing on 13 June 2018 the applicant applied for an adjournment for the purpose of awaiting the outcome of the appeals to the High Court from the orders of the Full Federal Court in Minister for Immigration and Border Protection v CQZ15,[71] and BEG15 v Minister for Immigration and Border Protection.[72] Counsel for the applicant accepted that ground 4 was predicated on the proposition that by not disclosing to the applicant the documents covered by the 438 Certificate the applicant was denied procedural fairness or was denied a real opportunity to succeed in his application for review. I suggested that I hear ground 4 and reserved judgment on whether I accept these propositions on which ground 4 is based and then invite the parties to make submissions on the basis of the findings I will make in light of what the High Court would decide in the appeals in BEG15 and CQZ15. The Minister accepts the Tribunal did not disclose to the applicant the 438 Certificate, or any of the documents covered by that certificate. In the remaining part of this section of these reasons, therefore, I will consider whether, by the Tribunal’s not disclosing to the applicant the 438 certificate or the documents that are covered by that certificate, the applicant was denied procedural fairness or was otherwise deprived of a real opportunity to advance his case. I will then briefly refer to the judgments of the High Court in the appeals in BEG15 and CQZ15.[73]
[71] [2017] FCAFC 194
[72] [2017] FCAFC 198
[73] Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection (SZMTA) [2019] HCA 3
Denial of procedural fairness?
The particulars to ground 4 do not state how the disclosure by the Tribunal of the Schedule N2104/047 document deprived the applicant of a meaningful opportunity to advance his case. In oral submissions, however, the effect of what counsel for the applicant submitted is that by not disclosing the Schedule N2104/047 document, the Tribunal failed to disclose to the applicant that the author of the document considered there was a claim based on the applicant’s mental health and denial of mental health services; and by failing to make this disclosure, the applicant was denied the opportunity to make submissions about such claim. In his written submissions, counsel for the Minister submitted that none of the documents covered by the 438 Certificate could have had any bearing on any of the issues that were before the Tribunal; and the inference that should be drawn is that the Tribunal did not have any regard to the documents.
Counsel for the applicant submits that by failing to disclose to the applicant the Schedule NS2014/047 document the applicant was denied an opportunity to advance a claim. That submission is predicated on a number of assumptions. The first is that, had the documents been disclosed, the applicant or those advising him would have interpreted the documents as revealing an understanding by the author of the documents that the applicant had a claim or a potential claim based on his being denied medical services or adequate medical services for his mental difficulties. The second is that, having so interpreted the documents, the applicant would have advanced such claim and provided submissions and evidence in support of that claim. In my opinion I am not satisfied there was any real possibility that either of these things would have occurred.
First, as I have already found, the effect of the information contained in the documents on which the applicant relies goes no further than saying that, although the health system in Pakistan is less than ideal, and not comparable to Australia’s health system, there is nothing to suggest the applicant will be denied access to those services. They do not suggest the applicant has a claim or potential claim based on his not being provided with medical services or adequate medical services in relation to his mental conditions. Second, as I have also found, psychological and other evidence was presented to the Tribunal, but it was for the purpose of explaining the inconsistencies in the applicant’s evidence. If there were any basis for making a claim for protection based on the inadequate provision of services in Pakistan to deal with the applicant’s mental condition, it is reasonable to expect this would have led the applicant and his representative to articulate such a claim. No such claim was articulated. Third, the 17 March 2014 psychologist’s report records the applicant said that “he consulted with a medical doctor [in Pakistan] at the time, who prescribed him with anti-depressant medication, in order to be able to cope with his situation”.[74] That suggests the applicant was able to access medical services in Pakistan and that he, therefore, did not intend to advance any claim based on his being unable to access or adequately access medical services in Pakistan.
[74] CB318
Thus, I do not accept the correctness of the premises on which ground 4 is based and, for that reason, ground 4 must fail.
The High Court judgments
Although I have not accepted the correctness of the premises on which ground 4 is based, it will be necessary to say something about the judgments of the High Court in the appeals from the Full Federal Court in BEG15 and CZG15. That is so because at the hearing before me I indicated I would give the parties an opportunity to make submissions on the legal consequences of the findings I will make in relation to ground 4.
The judgments of the High Court are to be found in Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection (SZMTA). [75] There are two reasons for judgment in SZMTA, one given by Bell, Gageler, and Keane JJ (plurality judgment), and the other given by Nettle and Gordon JJ (non-plurality judgment). All justices were of the opinion that the issue to the Tribunal of a 438 certificate or purported 438 certificate obliged the Tribunal to disclose to the applicant the 438 certificate.[76] There is a difference between the plurality judgment and the non-plurality judgment about the consequences of the Tribunal’s failing to disclose to the applicant the issue of a 438 certificate.
[75] Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection (SZMTA) [2019] HCA 3
[76] [2019] HCA 3, [28], [115]
According to the plurality judgment, the Tribunal’s failure to disclose a 438 certificate may give rise to jurisdictional error. Whether or not it does so depends on whether “materiality is put in issue” and, where it has been put in issue, whether the applicant discharges the burden that lies on him or her to show that the Tribunal’s failure to disclose the 438 certificate was in fact material.[77] Here “materiality” in relation to the Tribunal’s failure to comply with its obligation to disclose the existence of a 438 certificate denotes the affirmative answer to the hypothetical question: could compliance realistically have resulted in a different decision?[78] The “question of materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof”.[79]
[77] [2019] HCA 3, [4]
[78] [2019] HCA 3, [45]
[79] [2019] HCA 3, [46]
According to the non-plurality judgment, a breach by the Tribunal of an obligation to disclose a 438 certificate gives rise to a jurisdictional error.[80] Unlike the plurality judgment, however, whether or not the breach is material is not relevant to whether the Tribunal made a jurisdictional error. In other words, materiality of error is not a criterion of jurisdictional error.[81] Materiality, however, may be relevant to whether the Court should refuse relief.[82]
[80] [2019] HCA 3, [117]
[81] [2019] HCA 3, [92]
[82] [2019] HCA 3, [121], [123], [128]
Conclusions and disposition
I have concluded the applicant should not have leave to file a further amended application in the form of “MFI1”. I propose, therefore, to dismiss the application to file a further amended application but order the ground 2 of the amended application be read as including after the words “refouled to Pakistan” the words “given (a) the submissions by the applicant and/or (b) the available country information before the Tribunal”. I have also concluded the applicant has failed on grounds 1, 2, and 3 of the amended application.
Further, because I have not accepted the correctness of the premises on which ground 4 is based, that ground must also fail. That is so irrespective of the judgments of the High Court in SZMTA. In light of the findings I have made, I consider it is unnecessary to invite any submissions from the parties in relation to the judgment of the High Court in SZMTA.
I propose to dismiss the application. I will deal with the question of costs when I pronounce my orders.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 19 July 2019