FEDERAL COURT OF AUSTRALIA

EVK18 v Minister for Home Affairs [2020] FCAFC 49

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to file the Amended Notice of Appeal dated 9 March 2020.

2.    The appeal is dismissed.

3.    The Appellant should pay the costs of the Respondent, either as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    The Appellant in the present proceeding, identified by the pseudonym EVK18, is a national of Jordan.

2    On 2 February 2017, a decision was made by a delegate of the Respondent Minister to cancel the Appellant’s visa. That decision was taken pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the “Migration Act”). A request for revocation of the delegate’s decision was received by the Department on 6 February 2017. On 3 July 2018, the Assistant Minister made a decision pursuant to s 501CA(4) of the Migration Act not to revoke the delegate’s decision.

3    An application seeking judicial review of the Assistant Minister’s decision was dismissed by a Judge of this Court on 1 March 2019: EVK18 v Minister for Home Affairs [2019] FCA 229. The Appellant now appeals to this Court.

4    Before the primary Judge the now-Appellant appeared unrepresented. But before this Court the Appellant was represented by Counsel who sought leave to amend the Notice of Appeal. In summary form, the argument sought to be advanced was that the Assistant Minister had erred in not resolving claims founded upon:

    the Appellant’s claims to fear harm or “grave danger”; and/or

    the “impact upon his mental health”

if he were to be returned to Jordan. The appellable error said to have been committed by the primary Judge was in not concluding that the Assistant Minister had failed to meaningfully engage with either or both of those two claims.

5    Although leave will be granted to amend the Notice of Appeal, the appeal is to be dismissed.

THE NEED FOR CONSIDERATION OF THE CLAIMS MADE

6    The Amended Notice of Appeal is expressed in terms of the need for the Assistant Minister to “engage in an active intellectual way with the Appellant’s representations, made under s 501CA(4)(b)(ii)” of the Migration Act.

7    Section 501CA of the Migration Act provides in relevant part as follows:

Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

…

(3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

…

8    The relevant legal principles were not put in issue in the current appeal. The matter which divided the parties was the application of those principles to the claims as “articulated” by the Appellant and the reasons provided by the Assistant Minister in resolving those claims.

9    Those legal principles should nevertheless be set forth, at least in summary form.

10    Of central relevance is the necessity for the Minister (or an Assistant Minister) to properly give consideration to a “representation” which has been made pursuant to s 501CA(4)(a). The representations made in response to an invitation under s 501CA(3) are “viewed as a whole, a mandatory relevant consideration, but not every statement in the representations can be so described”: Minister for Home Affairs v Omar [2019] FCAFC 188 at [34(e)], (2019) 373 ALR 569 at 582 per Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ (“Omar”); GBV18 v Minister for Home Affairs [2020] FCAFC 17 at [31(a)] per Flick, Griffiths and Moshinsky JJ (“GBV18”). See for example, Minister for Immigration & Border Protection v BHA17 [2018] FCAFC 68 at [139], (2018) 260 FCR 523 at 562 per Robertson, Moshinsky and Bromwich JJ.

11    But one particular aspect of this generally expressed principle is the necessity for the Minister (or an Assistant Minister) to give consideration to a “representation” which has been made as to the “harm” a visa holder may face if returned to a country of origin. One difficulty which was initially encountered in previous cases that have come before this Court arose because a representation as to “harm” may assume relevance to both a claim that that “harm” may provide “another reason” why a decision should be revoked (s 501CA(4)(b)(ii)), as well as giving rise to a consideration as to whether Australia owes non-refoulement obligations to the visa holder when considering a protection visa application. There is, however, a distinction between the two decision-making processes: DOB18 v Minister for Home Affairs [2019] FCAFC 63. Robertson J (with whom Logan J agreed) there identified that distinction as follows:

[185]    … In my view there is a relevant distinction between considering harm, or the risk of harm and hardship, and considering whether or not, if the appellant made a protection visa application, non-refoulement obligations would then be fully considered. That distinction follows the difference between the claims, on the one hand, and the characterisation of those claims as giving rise to non-refoulement obligations (which are concerned with a State party returning a person to another state), on the other hand.

[186]    In my opinion this distinction is not accurately referred to as a distinction between the different stages of decision-making, if by that expression it is intended to mean that the claims of harm as found by the Minister in the present case need not be considered in making a decision under s 501BA(2).

12    When attention is focussed on an exercise of the power conferred by s 501CA(4), the making of representations pursuant to s 501CA(3) “play an important role in the decision-maker’s determination of whether he or she is satisfied that there is ‘another reason’ why the cancellation should be revoked”: GBV18 [2020] FCAFC 17 at [31(c)]. The Full Court there observed that although “the decision-maker has a degree of ‘decisional freedom’ as to what constitutes such a reason, he or she must consider whether a particular representation made by the affected person, which is clearly expressed and is significant, that they may suffer harm if returned to the country of origin, constitutes ‘another reason’…”: GBV18 [2020] FCAFC 17 at [31(e)].

13    The Full Court in GBV18 also sought to give content to what was required of a Minister when considering a “representation” which had been made pursuant to s 501CA(3). The Court there referred to the earlier decision in Omar [2019] FCAFC 188, (2019) 373 ALR 569 and sought to summarise the relevant principles as follows:

[32]    Omar also provides helpful guidance on what is meant by the obligation of a decision-maker to “consider” a matter in the context of a judicial review (see at [35]–[37]). The reasons for judgment in the present case should be read as though those paragraphs were incorporated here. For convenience, the key relevant points may be summarised as follows.

(a)    Even though there is no explicit statutory duty on the Minister under s 501CA(4) to “consider” representations made in support of a revocation request, it is necessarily implicit in the statutory regime that there is such an obligation. The discharge of that obligation requires the Minister to engage in an active intellectual process with reference to those representations …

(b)    Importantly, each case necessarily turns on its own particular facts and circumstances as established by the evidence.

(c)    The inference drawn in Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107; 252 FCR 352 was one which was arrived at notwithstanding that the Minister’s statements of reasons in the two cases there stated that he had “given full consideration to all of the information before me” and that the reasons contained numerous statements by the Minister that he had “considered”, “noted”, “accepted”, “recognised” or “had regard to” various matters in coming to his decision to cancel the visas. In the particular circumstances, these statements were not viewed as conclusive.

(d)    The decision-maker’s obligation to engage in an active intellectual process with significant and clearly expressed relevant representations made in response to an invitation under s 501CA(3)(b) is consistent with the observations of the Chief Justice in Hands v Minister for Immigration & Border Protection [2018] FCAFC 225; 364 ALR 423 at [3] (with whom Markovic and Steward JJ agreed) ...

(e)    Giving meaningful consideration to a clearly articulated and substantial or significant representation on risk of harm independently of any claim concerning Australia’s non-refoulement obligations, may require the decision-maker to do more than simply acknowledge or note that the representations have been made. As stated at Omar at [39], depending on the nature and content of the representations, the decision-maker “may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate, by reference to relevant parts of the representations in order that this important statutory decision-making process is carried out according to law”.

(f)    The failure to consider, in the relevant legal sense, a substantial or significant and clearly articulated claim raised in representations made under s 501CA(3), as giving rise to “another reason” for revoking the visa cancellation, may constitute a failure to carry out the statutory task and involve jurisdictional error.

(g)    A finding that a decision-maker has not engaged in a meaningful or active intellectual process will not lightly be made (see Carrascalao at [48]). It is important to re-emphasise that each case necessarily turns on its own particular facts and circumstances ... As each case has to be looked at with close regard to its own particular facts, circumstances and evidence, it is inappropriate to apply the relevant principles simply by reference to what has happened in other cases.

(h)    Where a decision-maker has meaningfully engaged with a relevant representation made under s 501CA(3), the Court is not entitled on judicial review to intervene merely because it disagrees with the decision-maker’s ultimate assessment that the representation is outweighed by other countervailing considerations, assuming that no other jurisdictional error is established. The limits of judicial review must constantly be observed.

14    In GBV18 the Full Court referred to the need for a “representation” to “clearly express” a claim: [2020] FCAFC 17 at [32(d)]. In seeking to identify those “representations” which required the consideration of the decision-maker, the Court there also used a number of like expressions such as a “clearly articulated and substantial or significant representation” and “a substantial or significant and clearly articulated claim” (GBV18 [2020] FCAFC 17 at [32(e) and (f)]). The same Full Court in AXT19 v Minister for Home Affairs [2020] FCAFC 32 subsequently returned to the importance of identifying those claims which may be found within a “representation” made pursuant to s 501CA(3) which attracted the need for consideration as follows:

[56]    Considerable caution needs to be exercised in resolving an argument that a claim has been made in sufficiently clear terms that it should in turn be considered by the Tribunal. The greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the Tribunal to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the Tribunal to consider the claim. The need for caution arises lest a reviewing Court is propelled from its sole task of undertaking judicial review and into the murky waters of impermissible merits review. The task of a court undertaking judicial review is not to elevate a statement that may have been made in passing by a claimant into a clearly articulated claim in need of resolution. For a Court undertaking judicial review to engage in such a process has all the dangers of the Court resolving a different factual case to the one advanced to the Tribunal and thereby trespassing into merits – and not judicial – review.

The balance that is sought to be struck is to recognise that a “representation” which has been made pursuant to s 501CA(3) may contain a myriad of different claims and assertions and should not be dissected for the purpose of forensically and opportunistically subsequently seizing upon a failure to address a particular “statement” that may be found within a representation as exposing legal error (cf. BHA17 [2018] FCAFC at [139], (2018) 260 FCR at 562), whilst at the same time recognising that a “representation” may not be drafted with the skill of an experienced legal practitioner.

15    In Omar, GBV18 and again in AXT19, the Full Court emphasised the fact that each case must necessarily depend upon its own facts and circumstances and the need for caution on the part of a court undertaking judicial review not to trespass beyond its legitimate role of discerning legal – and not factual – error. In GBV18 it was concluded that a claim had been made and not considered; in AXT19 the contrary conclusion was reached. Both cases, obviously enough, depended upon their own facts.

THE CLAIMS MADE & THE REASONS OF THE ASSISTANT MINISTER

16    The arguments advanced in the present proceeding centred upon the claims made in the “representations” said to have been made by the Appellant in respect to:

    the fear of harm or “grave danger”; and

    the “impact upon his mental health”

if he were to be returned to Jordan. In resolving these arguments it was common ground that each of these arguments was to be resolved by reference to whether:

    the claim had been “clearly articulated” or “clearly expressed”;

and, if so:

    had it been properly considered.

17    The case for the Appellant was that each of the two claims had been “clearly articulated”, given the fact that the precision with which a claim need be advanced for consideration necessarily had to take into account the fact that the Appellant was accepted to have been exposed to hardship – if not torture – whilst he was in Jordan; was a person who experienced mental difficulties and a person whose first language was not English: cf. AXT19 [2020] FCAFC at [52]. The case for the Appellant was also that each of the two claims had not been properly “considered” by the Assistant Minister.

The articulation of the two claims

18    The articulation of the two claims being advanced by the Appellant were said to be discernible from the following documents which were placed before the Assistant Minister, namely:

    the Request for Revocation dated 4 February 2017;

    a letter in support signed by a friend of the Appellant and dated 18 April 2017;

    an undated typed letter signed by the Appellant, but being a letter forwarded to the Department shortly after the revocation of the Appellant’s visa and enclosing a forensic psychologist’s report dated 14 September 2015; and

    a Personal Circumstances Form dated 12 April 2018.

The Request for Revocation can be placed to one side. It focusses upon the concern the Appellant was expressing as to the prospect of being separated from his children. So, too, can the letter of support, although the letter does make a passing reference to the “extreme living conditions” faced by the Appellant in his previous home in Palestine.

19    The two claims now relied upon emerge for the first time in the undated letter, signed by the Appellant, which states at the outset (without alteration):

… I left my home in Bethlehem (Palestine) as a refuge when I was very young and while in Jordan was tortured as a political prisoner. I left Jordan as a political refugee and migrated to Australia on a protection Visa.

These events took place prior to his arrival in Australia in 1993. The psychiatric report attached to the letter was prepared by a clinical psychologist in September 2015 for the purposes of being used in sentencing in a criminal proceeding. It was this report which set forth greater detail as to (inter alia) the terrorist actions witnessed by the Appellant and his movements from Lebanon and Iraq and, thereafter, Jordan. The report sets forth considerable detail as to the torture of the Appellant when he was then aged 23 years and living in Jordan. The report also sets forth the diagnosis of the Appellant as follows:

4.2    Diagnosis

34    Assessment of [the Appellant] revealed he is suffering from the following co-morbid disorders:-

•    Major Depressive Disorder, severe, with melancholic features (DSM-5, 296.23);

•    Posttraumatic Stress Disorder (DSM-5, 309.81);

•    Cannabis Use Disorder, mild severity (DSM-5, 305.20).

The report goes on to set forth details as to what was considered to be appropriate “risk management & treatment”.

20    Further information was placed before the Assistant Minister in April 2018 in the “Personal Circumstances Form”. This was a Form that asked “for information that is important to the Minister or delegate making a decision about possible … revocation of a decision to cancel your visa…”. Part of that Form was headed “Impediments to Return”. Under that heading the Appellant was asked to “provide evidence from a medical professional to support [his] claims” and in response to whether he had “any diagnosed medical or psychological conditions”, the Appellant responded:

Panic with Depression, regular medication as prescribed…

The next heading in the Form was headed “Return to Your Country of Citizenship”. In response to the question whether the Appellant would “face any criminal charges/convictions in [his] country of citizenship”, he responded:

I had to leave due to army pressures, if returned I’d be facing grave and deadly situations.

The Form further asked the Appellant to describe his “concerns or fears” if returned to his “country of citizenship” and he responded:

My life would be in grave danger.

The reasons of the Assistant Minister

21    The Statement of Reasons provided by the Assistant Minister for his exercise of the power conferred by s 501CA(4) of the Migration Act in the present case canvasses the other claims made in support of the application for revocation. Those parts of the Assistant Minister’s reasons can be placed to one side.

22    When primarily addressing the claims by the Appellant, that he faces “grave danger”, the Assistant Minister expressed his assessment largely in para [34] of his reasons. That assessment, in context, is expressed as follows:

International non-refoulement obligations

23.    As part of his representations seeking revocation of the original decision to cancel his visa, [the Appellant] submits that he will face harm and grave danger if returned to his home country as he was targeted and had suffered prolonged torture as a political prisoner in Jordan.

24.    I accept that [the Appellant] was found to engage Australia’s protection obligations and he was granted a Protection visa on 14 September 1995.

25.    I note the psychologist report of 14 September 2015 which states that [the Appellant] continues to harbour fears of harm, should he be returned to Jordan, as he was imprisoned by the Jordanian Intelligence Service for ten months without charge when he was 23, and tortured for information about his family’s involvement with the Hamas movement.

26.    I have taken into account that [the Appellant] was kept in a small windowless cell, interrogated, beaten, abused, handcuffed to a steel bed frame and electrocuted with jumpstart leads. His toenails were pulled out. He was hung by the arms for long period of time until he thought his arms would rip from his shoulders and objects, including glass bottles, were inserted into his anus.

27.    I acknowledge that [the Appellant] continues to experience anxiety and has nightmares of his part trauma in Jordan. I note that he showed significant emotional distress when reminded by his psychologist of the violence and brutality he had experienced in his past.

28.    I consider that it is unnecessary to determine whether non-refoulement obligations are owed in respect of [the Appellant] for the purposes of the present decision as he is able to make a valid application for another Protection visa, in which case the existence or otherwise of non-refoulement obligations would be fully considered in the course of processing the application.

29.    A Protection visa application is the key mechanism provided by the Act for considering claims by a non-citizen that they would suffer harm if returned to their home country.

30.    I am aware that the Department’s practice in processing Protection visa applications is to consider the application of the protection-specific criteria before proceeding with any consideration of other criteria, including character-related criteria. To reinforce this practice, Minister Dutton has given a direction under s499 of the Act (Direction 75) requiring that decision makers who are considering an application for a Protection visa must first assess whether the refugee and complementary protection criteria are met before considering ineligibility criteria, or referral of the application for consideration under s501.

31.    I consider it highly likely that any Protection visa application will be considered by a delegate, and I note that such a delegate will be bound by the terms of Direction 75.

32.    In those circumstances, I consider it unnecessary to determine whether non-refoulement obligations are owed in respect of [the Appellant] for the purposes of the present decision as he is able to make a valid application for a Protection visa. In the (highly likely) case that such an application is considered by a delegate, non-refoulement obligations would be considered in the course of processing the application.

33.    I have also considered and taken into account the possibility that it may be the case that the Minister at that time personally considers [the Appellant’s] Protection visa application, rather than a delegate. In such a case, the Minister would not be bound by Direction 75 and would not necessarily determine whether non-refoulement obligations are owed in respect of [the Appellant]. However, such a situation would only arise in the unlikely event that the Minister determines to depart from the usual practice regarding the processing of Protection visa applications and determines further to depart from the policy approach set out in Direction 75. I have nevertheless taken into account the fact that that is a possible consequence of my decision, albeit an unlikely one.

34.    I have also considered [the Appellant’s] claims of harm upon return to Jordan outside of the concept of non-refoulement and the international obligations framework. I accept that regardless of whether [the Appellant’s] claims are such as to engage non-refoulement obligations, he would face hardship arising from his family’s involvement with the Hamas movement, were he to return to Jordan.

Those reasons obviously enough go beyond the claims to fear “grave danger” and canvass (at least in part) some of the material going to the Appellant’s “mental health”. When addressing the risk to the community, the reasons of the Assistant Minister also relevantly include the following passages:

Risk to the Australian community

74.    I note that [the Appellant] had a most confronting childhood and witnessed substantial violence and was himself the subject of brutality and prolonged torture by the Jordanian authorities by reason of his family’s association with the Hamas movement.

75.    I accept the court’s view that [the Appellant] has experienced very severe post-traumatic stress disorder for which he has not received any professional counselling or treatment.

76.    I also acknowledge that [the Appellant] received little guidance from his father who was absent for long periods of time undertaking labouring work in the construction industry in Egypt and other Arabian peninsula countries. I note that [the Appellant] had some role modelling in his uncle but his upbringing was disrupted by ongoing war. His family was forced to move around and they lived for years in a refugee camp before migrating to Australia.

77.    I have taken into account that [the Appellant’s] family had regularly visited the Sabra and Shatila refugee camps in Lebanon and on one of these visits, when [the Appellant] was 13, he witnessed the Sabra and Shatila massacre where thousands of Palestinian and Lebanese Shiites were shot and killed. I accept that [the Appellant] continues to have nightmares and flashbacks of these violent events.

…

83.    I note that [the Appellant] was assessed to pose a low to moderate risk of reoffending for violent offences. He has been diagnosed as suffering from major Depressive Disorder, Post Traumatic Stress Disorder (PTSD) and Cannabis Use Disorder.

84.    I have taken into account the psychologist’s view that [the Appellant’s] rehabilitation required continued targeted medication (Avanza), therapy, counselling, education, stress management, communication and relaxation training, as well as a significant social support network.

85.    I acknowledge that [the Appellant] has expressed a strong willingness and motivation to undertake treatment to address his depression and PTSD and to comply with his medication. His psychologist stated that he had an encouraging prognosis if he engaged with the treatment plan.

To these paragraphs should be added the following conclusions expressed by the Assistant Minister:

CONCLUSION

92.    I considered all relevant matter matters including (1) an assessment of whether the person has made representations in accordance with the invitation for the purposes of s501CA(4)(a); (2) an assessment of whether I am satisfied that the person passes the character test (as defined by section 501) for the purposes of s501CA(4)(b)(i); (3) an assessment of whether I am satisfied that there is another reason why the original decision should be revoked for the purposes of s501CA(4)(b)(ii); and (4) all evidence available to me, including evidence provided by, or on behalf of [the Appellant].

93.    I concluded [the Appellant] has made representations in accordance with the invitation.

94.    I am not satisfied that [the Appellant] passes the character test (as defined by s501).

95.    In considering whether, in light of [the Appellant]’s representations, I was satisfied that there is another reason why the original cancellation decision should be revoked, I gave primary consideration to the best interests of [the Appellant]’s children … I found that their best interests would be served by the revocation of the original decision.

96.    I have considered the length of time – of more than 24 years – that [the Appellant] has been in Australia and his contribution to the Australian community I have considered the consequences of non-revocation of the original decision for his other family members, friends and associates.

97.    In addition, I have considered [the Appellant]’s rehabilitative efforts to improve himself and give back to society. I have considered the insight he has shown for his offending behaviour, his commitment to therapy, his good work ethic and continuing efforts to contribute positively to the community.

98.    On the other hand, in considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the very serious nature of the crime committed by [the Appellant], that of Wound Person With Intent To Cause Grievous Bodily Harm. I am also mindful of the principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia.

99.    Further, I find that the Australia community could be exposed to significant harm should [the Appellant] reoffend in a similar fashion. I could not rule out the possibility of further offending by [the Appellant].

100.    In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that [the Appellant] represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any other considerations as described above. These include his lengthy residence, positive contribution and strong ties to Australia, and the hardship [the Appellant] and his family, friends and children will endure in the event the original decision is not revoked.

101.    Having given full consideration to all of these matters, I am not satisfied, for the purposes of s501CA(4)(b)(ii), that there is another reason why the original decision to cancel [the Appellant]’s visa should be revoked…

A FAILURE TO ADDRESS THE CLAIMS MADE

23    These findings and reasons of the Assistant Minister, it has been concluded, expose no error in failing to consider the claims made by the Appellant in respect to either:

    his fear of harm or “grave danger”; or

    the “impact upon his mental health”

if he were to be returned to Jordan.

A claim to fear grave danger

24    As to the former, the claim fails at the outset. It has been concluded that there has been no clearly articulated claim that warranted any greater consideration to the matter than that discernible from the reasons.

25    The claim to suffer “grave danger” or (differently expressed) the “deadly situation…” the Appellant maintained he would confront if he were to be returned to Jordan was from the outset simply a bare assertion.

26    In the “Personal Circumstances Form” there was no factual material relied upon to support the claims made. And such deficiency in the claim there made cannot be supplemented by recourse to the undated letter and the report of the forensic psychologist because:

    a recounting by the Appellant of his experience prior to 1993 may say something as to his present mental condition, but says very little as to any claim to fear “grave danger” some 25 years later.

And, whatever flexibility is to be extended to an unrepresented visa holder in the making of “representations”, it remains a matter for the visa holder:

    to articulate a claim in a reasonably comprehensible manner – it cannot be left to the Minister himself to try and make out a claim that may have possibly been advanced for consideration by piecing together discrete references contained within a myriad of documents; and

    to place before the Minister such materials as may support the claims being made, including – relevantly – materials that support a finding that such conditions as prevailed in Jordan prior to 1993 and which then led to the torture of the Appellant remained prevalent in Jordan some 25 years later.

On the facts of the case, there was no clearly articulated claim to fear “grave danger” which was supported by any current material having any probative weight.

27    Even if the claim to be exposed to “grave danger” rises above a bare assertion, it would have been further concluded that it was adequately considered by the Assistant Minister. Given the scarcity of the materials relied upon, such consideration as was given to the claim is adequately addressed at paras [74] and [77] of the reasons of the Assistant Minister.

The claim in respect to mental health

28    The argument that the Appellant advanced a claim that he would suffer hardship should he be returned to Jordan by reason of his mental condition, being a claim that was not considered by the Assistant Minister, is an argument founded upon:

    the opinion of the forensic psychologist expressed in the report of September 2015 for the purposes of consideration by a sentencing judge in criminal proceedings; and

    the statement in his Personal Circumstances Form that he suffered from “Panic with Depression”.

The opinion of the forensic psychologist included details as to the diagnosis of the Appellant and detail as to the recommended treatment he should undergo, being “at a minimum, a period of nine (9) to twelve (12) months”. Both documents were before the Assistant Minister when making his decision in July 2018.

29    Unlike the claim made that the Appellant would face “grave danger”, there was considerably more detail before the Assistant Minister as to the factual basis upon which the Appellant was claiming to face considerable difficulties, by reason of his mental health, if he were to be returned to Jordan. Given the Appellant’s account as to what he had witnessed and the torture said to have been endured by him in Jordan, and as set forth in the report of the forensic psychologist, there was before the Assistant Minister material upon which the opinions being expressed by the forensic psychologist could not be summarily discounted.

30    Unlike the claim in respect to “grave danger”, the claim in respect to the Appellant’s mental condition was a claim which was clearly articulated.

31    It is nevertheless concluded that the argument fails because the Assistant Minister did properly consider the claim being made: Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107 at [35], (2017) 252 FCR 352 at 361.

32    In support of the argument that the claim was not properly or adequately considered, the Appellant relies upon the fact that the reasons of the Assistant Minister (inter alia) merely “note”:

    the report of the forensic psychologist (at para [25]);

    that the Appellant “showed significant emotional distress” (at para [27]); and

    that the Appellant had “a number of significant mental health issues” (at para [49]).

33    Other claimed indications of a failure to fully consider that which had been “noted”, are the expressions employed by the Assistant Minister that he merely “acknowledges” or has “taken into account” that the Appellant:

    was “kept in a small windowless cell” (at para [26])

    “continues to experience anxiety” (at para [27]);

    “continues to have nightmares and flash backs” (at para [50]);

    the “psychologist’s view that [the Appellant’s] rehabilitation required continued targeted medication” (at para [84]); and

    the Appellant’s “strong willingness and motivation to undertake treatment” (at para [85]).

Such expressions, Counsel on behalf of the Appellant submits, fall well short of the Assistant Minister making “findings” of fact in respect to those matters “noted” or “acknowledged” or “taken into account”. More telling, so submits Counsel on behalf of the Appellant, is the fact that:

    nowhere in the reasons of the Assistant Minister is there any express reference to the actual diagnoses of the forensic psychologist or the 9 to 12 month treatment plan which he had recommended the Appellant should pursue; and

    nowhere in the “Conclusions” of the Assistant Minister (at paras [92] to [101]) is there any express reference to the Assistant Minister weighing in the balance the “mental health” of the Appellant if he were to be returned to Jordan.

34    There is also the further submission advanced on behalf of the Appellant that:

    the one “find[ing]” of fact as set forth in para [51] is a finding devoid of factual support and one which fails to “actively engage with” the recommended treatment plan.

It is the absence of factual support, so it is submitted, that exposes the Assistant Minister to making a bland statement which evidences a failure to properly engage with the substance of the claim being made in respect to “mental health”. The fact that the Assistant Minister may have resolved the claims in favour of the Appellant by finding that he would “suffer considerable distress if removed from Australia to Jordan” (at para [50]), Counsel for the Appellant contends, does not preclude a conclusion that the claim in respect to “mental health” was not fully understood or properly considered. An “active intellectual engagement” with the claim may well have provoked a far different assessment – and an even more favourable assessment – by the Assistant Minister.

35    Notwithstanding the force of those submissions, it is nevertheless concluded on balance that the Assistant Minister did “engage in an active intellectual process” (cf. GBV18 [2020] FCAFC 17 at [32](a)) with the claims being made by the Appellant in respect to his “mental health” because:

    the reasons go beyond a mere repetition of the information in the Personal Circumstances Form and go on to extract relevant parts of the report of the forensic psychologist – thereby demonstrating an understanding of the factual basis upon which the claims in respect to “mental health” were being advanced (e.g., at paras [26] and [49]); and

    the use of the term “acknowledge” (e.g., at para [27]) and the phrase “I have taken into account” (e.g., at paras [26] and [50]) when read in context go beyond simply a repetition of what the claim is and, properly construed, are to be understood as an acceptance on the part of the Assistant Minister that there is factual substance to what the Appellant was claiming.

There is, moreover, a repeated reference by the Assistant Minister to those facts of relevance to the “mental health” of the Appellant and references for different purposes. Those facts are thus separately addressed when the Assistant Minister is considering:

    “[i]nternational non-refoulement obligations” (at paras [26] and [27]);

    “[e]xtent of impediments if removed” (at paras [49] and [50]); and

    the “risk to the Australian community” (at paras [74], [77], [84] and [85]).

Such consideration of the materials of relevance to the claim in respect to “mental health” goes well beyond, for example, those statements of reasons to be found in other cases which merely summarise the claims made and thereafter make no attempt to go back and try to relate those claims to the materials relied upon and to each of the matters raised for consideration. The variety of references to the materials or relevance to the Appellant’s “mental health” expose an active consideration of the relevance of those claims to the matters otherwise required to be taken into account.

36    To the extent that it was understood that Counsel for the Appellant submitted that the finding as to the availability of mental health services in Jordan was a finding made without reference to the actual recommendations of the forensic psychologist, that submission is adequately answered by the Assistant Minister’s acceptance and knowledge as to the actual treatment recommended (at para [84]). To the extent that the submission was founded upon a lack of evidence as to the mental health services available in fact available in Jordan, the submission is rejected. The finding was no more – and no less – than a finding that the Appellant as a national of Jordan would have the same access to such health services as may there be available to “other Jordanian citizens”. No-one suggested to the contrary.

CONCLUSIONS

37    No error has been exposed in respect to those two claims identified in the Amended Notice of Appeal, namely a contention that the Assistant Minister failed to actively engage with the claims being made in respect to:

    the danger or “grave danger” the Appellant would face if returned to Jordan; or

    the difficulties to be confronted by the Appellant if he were to be returned to Jordan by reason of his “mental health”.

Neither argument has prevailed.

38    Leave to amend the Notice of Appeal should be granted but the appeal should be dismissed.

39    There is no reason why costs should not follow the event.

40    The Court again expresses its gratitude for the assistance of pro bono Counsel for the Appellant.

THE ORDERS OF THE COURT ARE:

1.    Leave be granted to file the Amended Notice of Appeal dated 9 March 2020.

2.    The appeal is dismissed.

3.    The Appellant should pay the costs of the Respondent, either as agreed or taxed.

Associate:    

Dated:    24 March 2020