Federal Court of Australia

BCE20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 124

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Orders 1 and 2 of the orders made by the Federal Circuit Court of Australia on 17 December 2020 in proceeding BRG150/2020 (hereafter, the “Proceeding Below”) be set aside and, in lieu thereof, it be ordered that:

(a)    a writ of certiorari be issued, removing into this court and quashing the decision of the second respondent made on 4 February 2020 in case number 1920871 (hereafter, the “Quashed Decision”);

(b)    a writ of mandamus be issued, requiring that the second respondent determine the application to which the Quashed Decision pertained (namely, for review of a decision made by a delegate of the first respondent on 23 July 2019) according to law; and

(c)    the first respondent pay the appellant’s costs of and incidental to the application in the Proceeding Below.

3.    The first respondent pay the appellant’s costs of and incidental to the appeal, to be assessed in default of agreement in accordance with the Court’s Costs Practice Note (GPN-COSTS).

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 is a citizen of the Democratic Republic of the Congo (the “DRC”). He suffers from a mental illness known as conversion disorder. That fact assumes some prominence in this appeal, as will shortly become apparent.

2    On 19 December 2018, the appellant came to Australia as the holder of a transit visa. Two months later he made an application for a protection visa (within the meaning given to that phrase by the Migration Act 1958 (Cth) – “the Act”).

3    The appellant’s protection visa application (the “Visa Application”) has since traversed a convoluted path, the precise trajectory of which need not be traced. It came before a delegate of the first respondent (“the Minister”) who, by a decision dated 23 July 2019, rejected it (the “Delegate’s Decision”).

4    On 30 July 2019, the appellant applied to the second respondent (the “Tribunal”) for a review of the Delegate’s Decision. That application (the “Review Application”) was heard and, by a decision dated 4 February 2020, the Tribunal affirmed the Delegate’s Decision (the “Tribunal’s Decision”).

5    On 28 February 2020, the appellant filed an application with the Federal Circuit Court of Australia (the “FCCA”) for judicial review of the Tribunal’s Decision. That application (the “Judicial Review Application”) was heard and, by a judgment dated 17 December 2020, the FCCA dismissed it: BCE20 v Minister for Immigration & Anor [2020] FCCA 3455 (the “FCCA Judgment”).

6    By a notice of appeal dated 22 December 2020, the appellant now appeals from the FCCA Judgment. He asks that the FCCA’s orders be set aside and that, in their place, this Court grant prerogative relief in the nature of certiorari and mandamus to set the Tribunal’s Decision aside and remit the Review Application back to the Tribunal for determination according to law. He also seeks an order requiring the Minister to pay his costs, both of the present appeal and of the Judicial Review Application.

7    For the reasons that follow, we allow the appeal and make orders in the nature of those for which the appellant moves.

The appellant’s protection claim

8    In support of the Visa Application, the appellant contended that, if returned to the DRC, he would be subjected to various forms of harm sufficient to qualify him for protection. He sought protection under what are typically known as the refugee criteria (the Act, s 36(2)(a)) and the complementary protection criteria (the Act, s 36(2)(aa)). Several bases were advanced in support of those claims, only one of which – relating specifically to the appellant’s conversion disorder – is relevant for present purposes.

9    Before the Tribunal, it was not in dispute that the appellant suffered from conversion disorder, said to be the result of trauma from torture, and the Tribunal accepted this to be the case: [19]. The appellant made various submissions to the Tribunal concerning the treatment of the mentally ill in the DRC. He quoted from an article published in the American Psychological Association’s December 2014 “Psychology International” newsletter, which noted as follows:

In DRC ... there is stigma attached to people and the [larger] family of these people suffering from behavioral health problems. The cause of mental disorders is often sought in witchcraft or “black magic.” The shame of having a mental disorder extends to the family because each person is an integral part of a larger familial and social fabric. It is never just an individual who suffers from depression or schizophrenia and who is being treated for mental disorder; it is also the family, clan and tribe that suffers and must be treated. The people suffering from mental disorder and other family or community are at risk of being accused of sorcerers or witches. Consequently, the first consultation is not with a psychologist or physician, but with a traditional healer or priest (a Nganga-Nzambe, or “Healer of God” in the Lingala language). Christian or Muslim Congolese likewise seek healing for their inner problems from their pastors or imams rather than from a psychologist. It is very rare that a Congolese visits a psychologist or psychiatrist for behavioral health concerns (Schuster, 2013).

10    The appellant also advanced submissions about the availability of treatment for mental illness in the DRC. He contended that “… the stigma of mental illness and the very limited access to mental health services in DRC will result in [his] experiencing ‘serious harm’ should he be required to return there … [and that he] … would be socially isolated from any community he would seek support from because of the community’s fear of being associated with his mental illness”. It was said that that social isolation would amount to the infliction of “serious harm” (for the purposes of the refugee criteria) and “significant harm” (for the purposes of the complementary protection criteria).

11    Insofar as concerned the infliction of “serious harm” for the purposes of the refugee criteria, the appellant contended that he would, because of his mental illness, be subjected in the DRC to such a degree of social isolation that he would endure significant economic hardship, and be denied access to basic services and a capacity to earn a livelihood; in each case, to a point that would “… threaten [his] capacity to subsist”.

12    As to the complementary protection criteria, the appellant contended that “…in DRC, mental illness is thought to be caused by witchcraft and results in shame on the entire community in which the person with the mental illness lives”. His submission (or the submission advanced on his behalf by his representatives) continued:

We submit that the [appellant]’s mental illness would result in him being socially isolated as any community he would seek support from would reject him out of fear of being associated with his mental illness. This social isolation, we submit, would result in the [appellant] suffering significant harm in the form of degrading treatment or punishment. This treatment would result in the, ‘feelings of fear, anguish and inferiority capable of humiliating and debasing the person and possibly breaking their physical or moral resistance’…

The statutory framework

13    Section 36 of the Act stipulates the criteria that an applicant must satisfy in order to qualify for a protection visa. Relevantly for present purposes, an applicant must establish either that he or she is a refugee (s 36(2)(a)) or otherwise faces a real risk of subjection to “significant harm” if removed from Australia (s 36(2)(aa)).

14    The meaning of “refugee” is set out in s 5H(1) of the Act, which relevantly provides as follows:

(1)    For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

(a)    in a case where a person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country.

…

15    In turn, s 5J(1) of the Act provides that a person has a “well-founded fear of persecution” if, relevantly:

…

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)    there is a real chance that, if the person returned to the receiving country [in this case, the DRC], the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of the receiving country.

16    Additional requirements as to whether a person has a “well-founded fear of persecution” – and the circumstances in which a person will be taken not to have such a fear – are set out elsewhere in s 5J of the Act. In order to qualify as well-founded, a person’s fear of persecution must involve a fear that they will be subjected to “serious harm”: the Act, s 5J(4)(b). “[S]erious harm” is defined by s 5J(5) so as to include:

…

(d)    significant economic hardship that threatens the person’s capacity to subsist;

(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist; [and]

(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

17    “[S]ignificant harm” (which arises in the context of the complementary protection criteria) is defined by s 36(2A), which provides as follows:

(2A) A non-citizen will suffer significant harm if:

   (a)    the non-citizen will be arbitrarily deprived of his or her life; or

   (b)    the death penalty will be carried out on the non-citizen; or

   (c)    the non-citizen will be subjected to torture; or

(d)    the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

18    As is apparent, “significant harm” comprises numerous discrete, constituent concepts. Of present relevance is that which is the subject of paragraph (e): “degrading treatment or punishment”. That concept is defined by s 5 of the Act as follows:

5 Interpretation

(1)    In this Act, unless the contrary intention appears:

…

“degrading treatment or punishment” means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)    that is not inconsistent with Article 7 of the Covenant; or

(b)    that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

19    The Tribunal’s jurisdiction to review the Delegate’s Decision is not in question, nor is the FCCA’s jurisdiction to hear the Judicial Review Application or this court’s jurisdiction to hear an appeal from the FCCA Judgment.

The Tribunal’s Decision

20    The Tribunal did not accept that the appellant satisfied either of the relevant criteria for which s 36(2) of the Act provides. Most of the Tribunal’s Decision focused on matters with which the present appeal does not engage. There is no need to rehearse those areas of focus in these reasons.

21    Of present significance are the conclusions that the Tribunal drew in answer to the appellant’s claims for protection on account of his mental illness. Insofar as concerned the appellant’s claim under the refugee criteria, those conclusions are short in compass and it is convenient to replicate them in full (Tribunal’s Decision, [45]-[49]):

45.    The [appellant] claims that his conversion disorder and PTSD [are] unable to be treated in the DRC and along with his physical disability his condition would deteriorate and this would result in significant harm for the purposes of the convention.

46.    The Tribunal has considered this submission and notes that despite being in a controlled environment with unlimited access to mental and other health care providers both inside and outside the detention environment, the [appellant], on his own admission has consistently failed to avail himself of these opportunities. His condition has nevertheless improved since he no longer appears to utilise crutches or physical support to enable him to walk.

47.    The Tribunal does note that whilst there are some improvements in his physical condition, he claims his mental condition is deteriorating largely since he remains in detention. The Tribunal again cannot help but observe that he has refused some medical treatment and failed to avail himself of other opportunities except those through QPASST after the hearing when the Tribunal noted these precise concerns. It[’]s difficult to see, in these circumstances, how the [appellant]’s condition would be worse off in the DRC. In relation to this matter in particular, the Tribunal notes that there are health services available in the DRC although the [appellant] claims that it is not available to “the level of care the [appellant] requires”. The Tribunal notes the country information provided by the [appellant] and also that recorded in the delegate’s decision in relation to discrimination against people with a disability. However the [appellant] does not appear to require surgery for his condition nor does he require any physical support in terms of braces, crutches or a wheelchair. His physical disability appears related to his conversion disorder. Even so, the country information indicates that the ICRC reports that people with disabilities (severe disabilities such as amputation and spinal cord injuries) obtain good quality services, free of charge and four physical rehabilitation centres in Bukavu, Goma and Kinshasa.

48.    The [appellant] also submits that his mental and physical condition preclude him from obtaining gainful employment … He claims that it would be hard for him to find employment. However he has family in DRC who could presumably assist in his reintegration should he return.

49.    The Tribunal has considered whether the cumulative impact of the [appellant]’s claims such that the combination of his actual or imputed political opinion, membership of a particular social group including in relation to his mental and physical health issues, method of departure and any integers of those indicators would amount to a well-founded fear of persecution or bring the [appellant] to the attention of the authorities such that his return to the Democratic Republic of Congo would result in him suffering significant harm and found that not to be the case.

22    The Tribunal also rejected the appellant’s claim for complementary protection. Again, its reasons for doing so are short in compass and it is convenient to replicate them in full (Tribunal’s Decision, [58]-[65]):

58.    The [appellant] claims that there are substantial grounds for believing that as a necessary and foreseeable consequence of the [appellant] being removed from Australia to the Democratic Republic of the Congo there is real risk that the [appellant] will suffer significant harm.

59.    The Tribunal has considered if the [appellant] meets the complementary protection criteria under s36(2)(aa) of the Act particularly in relation to his medical condition and, having carefully considered and weighed the evidence, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to the Democratic Republic of the Congo there is a real risk that the [appellant] will suffer significant harm.

60.    The Complementary Protection Guidelines state that the absence or inadequacy of medical treatment in the country of return does not generally amount to a violation of Article 7 of the ICCPR and would not generally meet the definitions of cruel or inhuman treatment or punishment or degrading treatment or punishment in s36(2A) of the Act.

61.    The Tribunal is not satisfied that the evidence provided indicates that the [appellant] would not have access to some level of medical care either with or without cost, such that he would suffer significant harm within the meaning of the convention.

62.    The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to the DTC, there is a real risk the [appellant] will suffer significant harm as outlined in s.36(2)(aa) of the Act.

63.    The Tribunal has carefully considered the [appellant]’s claims cumulatively and individually and has formed a view that the [appellant] is not a person to whom Australia has protection obligations. The Tribunal is not satisfied that the [appellant] would be at risk of serious harm for the reasons he claims or for any other reason if he returns to the Democratic Republic of the Congo.

64.    The Tribunal is not satisfied that the [appellant] is a refugee as defined by s5H(1) of the Migration Act.

65.    For the reasons given above the Tribunal is not satisfied that any of the [appellant]s is a person in respect of whom Australia has protection obligations of any kind. Therefore the [appellant] does not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that he is also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.

The FCCA Judgment and the present appeal

23    The Judicial Review Application proceeded upon two grounds, only one of which remains relevant for present purposes. The appellant alleged that the Tribunal’s Decision was the product of jurisdictional error in that it was reached without consideration of his claim that, if he is returned to the DRC, he will be subjected to social isolation on account of his mental illness sufficient to qualify as “serious harm” or “significant harm” (hereafter, the “Social Isolation Claim”).

24    The FCCA rejected that contention. It is convenient to record the aspects of the FCCA Judgment that addressed it:

29.    The [appellant]’s submission to the [Tribunal] was predicated on him not being able to access adequate medical care for his mental illness and being isolated. However the [Tribunal] found that the [appellant] could access medical care such that he would not suffer significant harm. The [Tribunal’s] reasons for rejecting the [appellant]’s complementary protection claims are found at paragraphs 58 to 62 of the decision of the Tribunal. They are as follows:

…

30.    The [appellant] accepts that the [Tribunal’s] reasons demonstrate engagement with the [appellant]’s claim that he would not be able to access medical care in the country of his return in respect of his physical disability. However, he argues that the [Tribunal] “completely failed to deal with the integer of his claim that related to mistreatment by community members on account of mental illness”.

31.    However, the [appellant]’s claim is based upon the proposition that he would face social isolation on account of his mental illness. It was said that country information set out at paragraph 6.4 of his written submission (extracted above) supported his clearly articulated claim. But the country information does not support the [appellant]’s claims of potential social isolation. That is not suggested as a consequence of the [appellant]’s condition in the country information contained in 6.4 of the [appellant]’s written submission. That information talks only about treatment for such conditions and the common notion that such conditions are caused by witchcraft or black magic. I was taken to no other information that made out the [appellant]’s claim of social isolation consequent upon his Conversion Disorder.

32.    The [Tribunal’s] decision did not need to specifically mention every item of evidence or every submission put to it, or provide a “line by line” refutation of the [appellant]’s claims: MHA v Buadromo (2018) 362 ALR 48 at [48-49]. The first respondent submits that on a fair reading of the [Tribunal’s] reasons the [Tribunal] at [62] did not accept the [appellant]’s claims that his mental condition would lead to a real risk of him suffering degrading treatment or punishment (as defined) through social isolation as he claimed. It is submitted that the social isolation claim had not been overlooked but is encompassed in the findings of greater generality expressed in [62] of the [Tribunal’s] reasons. Moreover, because the factual premise that the [appellant] would be socially isolated because of his mental illness was not made out on any of the evidence before the [Tribunal], it is not surprising that it was dealt with in the more general finding set out at [62] of the reasons.

33.    In my view, the first ground does not establish jurisdictional error.

25    Before this court, the appellant advances a single ground of appeal. Again, it is convenient to replicate it in full:

The [FCCA] erred at [29] to [33] by not finding that the [Tribunal] had failed to consider and determine an integer of the [a]ppellant’s claim, including by:

a)    [e]rroneously holding at [29] that the integer in question was, “predicated on him not being able to access adequate medical care for his mental illness”[;]

b)    [e]rroneously holding at [31] that, “I was taken to no other information that made out the Applicant's claim of social isolation consequent upon his Conversion Disorder'” which was to engage in merits analysis rather than to determine whether a clearly articulated integer of the [a]ppellant's claim had been disposed of[; and]

c)     [e]rroneously holding at [32] that the claim, “was dealt with in the more general finding set out at [62]”.

26    As can be seen, the appellant advances a single contention: namely, that the Tribunal’s Decision was a product of jurisdictional error insofar as it did not address his Social Isolation Claim (and that the FCCA erred by not accepting as much). Three supposed errors, which are listed in an apparently non-exhaustive sense, are identified in support of that overarching contention. Although the appeal was conducted on the basis that three separate questions arise for the Court’s consideration, in truth, there are only two: (a) was the Social Isolation Claim a separate and distinct claim which the appellant made (or, as the Minister would have it, was that claim subsumed into the issue of access to medical treatment); and (b) if so, did the Tribunal consider the Social Isolation Claim?

Consideration

27    The matters of legal principle that should guide the Court’s consideration of the appeal are not in dispute. The Tribunal’s statutory power to determine the Review Application was conditioned upon its first considering the material matters that the appellant advanced. Any decision regarding that application that was made without first considering all of the claims that the appellant advanced would be a decision that the Tribunal lacked jurisdiction to make; and one that would, subject to materiality considerations (in the sense of the capacity of the matter to affect the ultimate decision made), be susceptible to prerogative relief. In this regard, it is well established that a decision-maker is required to correctly construe and consider claims (and their component integers) made by an applicant or apparent on the material before the decision-maker: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 (Dranichnikov), 394 [24] (Gummow and Callinan JJ (Hayne J agreeing at 408 [95])). As Allsop J (as his Honour then was) held in Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136 at 152 [42]:

To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. See also Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at [18], [19], [21] and [50]. It is to be distinguished from errant fact finding.

28    A failure to consider a contention amounting to a failure by the Tribunal to exercise its jurisdiction will relevantly arise where there has been a failure to consider a “substantial, clearly articulated argument” that, if accepted, might establish a well-founded fear of persecution for a Convention reason or a basis for extending complementary protection: Dranichnikov, 394 [24] (Gummow and Callinan JJ (Hayne J agreeing at [95])); Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319, 356 [90] (the Court).

29    Equally, were the FCCA wrongly to conclude that a Tribunal had not failed to consider a substantial, clearly-articulated and material claim, the decision of the FCCA would itself be wrongly drawn and susceptible to correction on appeal.

30    Furthermore, the Tribunal’s obligation to consider the appellant’s claims in support of his Review Application required that it subject his contentions to an “active intellectual process”: CAR15 v Minister for Immigration and Border Protection [2019] FCAFC 155; (2019) 272 FCR 131, 149-150 [76] (Allsop CJ, Kenny and Snaden JJ). The Court might infer a want of any such engagement in circumstances where, as here, there exists a written record of the reasons for which a particular decision was made (which must, under the Act, set out the decision-maker’s material findings of fact) and there is no reference within those reasons to what is alleged to have gone unconsidered: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, 346 [69] (McHugh, Gummow and Hayne JJ).

31    A decision-maker’s failure to expressly address a particular contention will not always warrant the drawing of an inference that it went unconsidered. Where, for example, the issue in question is “… irrelevant or … is subsumed within a claim or issue of greater generality” that is addressed, such an inference might not safely be drawn: Minister for Home Affairs v Buadromo [2018] FCAFC 151; (2018) 267 FCR 320, 332 [46] (Besanko, Barker and Bromwich JJ).

32    There is no dispute – and, from the summary of the Tribunal’s Decision that appears above, it is plainly the case – that the Tribunal did not, in terms, address the appellant’s Social Isolation Claim in its written reasons for decision. Its failure to do so leaves open the possibility that the Court might infer that that issue did not factor in the Tribunal’s mind when it made its decision to affirm the Delegate’s Decision. The Minister contends that no such inference should be drawn because, as the FCCA reasoned, the appellant advanced the Social Isolation Claim as part of a broader contention that, if he were returned to the DRC, he would be unable to obtain adequate treatment for his mental illness. The Minister submits that the FCCA “… was correct to construe the appellant’s submissions as predicated on his inability to obtain adequate medical care for his mental illness” and that, read fairly (as, the Tribunal’s Decision must be), it shows that the Tribunal implicitly considered and rejected the Social Isolation Claim at [62] of its reasons (as set out above).

33    Respectfully, that submission misconstrues the contentions that the appellant advanced before the Tribunal. As is made clear from the summary of those contentions above, the appellant did not submit that the unavailability of adequate medical care would occasion the social isolation to which he anticipates being subjected in the DRC because of his mental illness. On the contrary, that social isolation because of his mental illness (treated or untreated) was advanced as a standalone basis upon which he claimed to satisfy the protection criteria upon which his Visa Application turned. Logically, access to adequate medical care would likely (or hopefully) ameliorate the harm that the appellant’s mental health condition might visit upon him (and, by extension, the societal reaction to it); but there is no apparent basis upon which the Tribunal might have concluded (let alone should be understood to have concluded) that access to care would suffice to address the risk of social isolation which the appellant feared. There was not, for example, any finding (much less any basis in the evidence for finding) that the care that the appellant might receive in the DRC could cure him of his conversion disorder and thus release him from the risk of ostracism that he anticipates (or otherwise lessen its impact so as to deprive it of potential classification as “serious harm” or “significant harm”). Nor was it apparent that the claimed social isolation would cease if the appellant’s mental illness was effectively treated in the DRC.

34    The Minister’s submissions to the contrary are not persuasive. The characterisation of a claimant’s contentions must also be fair and reasonable. The appellant’s submissions were apparent enough. His claims to protection, insofar as they were founded upon his mental illness and the prospect that he would be subjected to serious or significant harm upon his return to the DRC, were put in two ways: first, those consequences were said to be in play because he would be unable to obtain adequate medical care; second, they were said to be in play because of the social stigma and resulting isolation and shame that attaches to mental illness in the DRC. The two contentions were not part and parcel of some broader submission (such that rejection of one might fairly be construed as rejection of the other). Neither claim was confined to the appellant’s capacity to access employment or to subsist in the DRC. They were discrete claims; and the Tribunal was obliged to consider them both. Respectfully, its failure to do so bespeaks jurisdictional error.

35    That conclusion then invites attention to whether the Tribunal’s error was material, in the sense that “compliance could realistically have resulted in a different decision”: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421, 445 [45] (Bell, Gageler and Keane JJ). In this regard, as Mortimer and Bromwich JJ held in Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66; (2020) 276 FCR 75, 93 [66], “the adjective ‘realistic’ in the statements of principle by the majority in the High Court in [SZMTA] is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable, no more than that.” This question marries (to some degree, at least) with the second of the three “errors” identified in the appellant’s single ground of appeal. The appellant maintains that the primary judge below erred by delving into the merits of the Review Application: a course that was said to be reflected in his Honour’s holding that there was “… no other information that made out the [appellant]’s claim of social isolation consequent upon his Conversion Disorder” (above, [24]).

36    It is difficult to see how the FCCA’s observation about the state of the evidence that was before the Tribunal should be understood as a materiality assessment. Typically (although perhaps not necessarily), that question arises only once a court is satisfied that the Tribunal exceeded its jurisdiction in some way (which, of course, the FCCA did not find in this case).

37    That said, it is equally difficult to see how the FCCA’s observation might have been relevant to any question other than materiality. It is to be borne in mind that the appellant’s case on judicial review (insofar as it is presently relevant) extended no further than to allege that the Tribunal had failed to consider a matter that it was obliged to consider. There was no allegation of legal unreasonableness, nor any other assertion of jurisdictional error that turned upon an analysis of the country information that was placed before the Tribunal.

38    What, then, should be made of the FCCA’s observation about the state of the evidence? The appellant advances two contentions. First, it is said that, even if the FCCA’s analysis is right, that does not excuse the Tribunal’s failure to address the Social Isolation Claim. Second and in any event, it is said that the FCCA’s analysis of the country information is not right.

39    The first contention is correct. If the country information, fairly construed, did not support the contention for which the appellant advanced it, then the Tribunal could simply have said so (and, thereby, rejected the Social Isolation Claim). It was not relieved of its obligation to consider the appellant’s contentions simply because they were not made good on the evidence: see, in that respect, Hernandez v Minister for Home Affairs [2020] FCA 415, [26] (Charlesworth J).

40    Whether or not the second contention is correct is a question that arises only in the context of materiality. If it is, then it might be open to this Court to find that the Tribunal’s failure to consider the Social Isolation Claim was immaterial to the result (and, thus, does not amount to jurisdictional error). The Minister, though, did not advance any submission to that end. Had he done so, it would have been rejected. By the written submissions advanced on his behalf, the appellant contended as follows:

25.     The Court considered that the PI article, “talks only about treatment for such conditions and the common notion that such conditions are caused by witchcraft or black magic”, and, therefore, that the Court had not been taken to “information that made out the [appellant]’s claim of social isolation consequent upon his Conversion Disorder”. The Court’s understanding of the PI article is hard to reconcile with the article’s text, which says that “there is stigma attached to people … suffering from behavioural health problems”. It also referred to the “shame of having a mental disorder” in DRC. It also begs the question, what else could be meant by the affiliation with sorcery and witchcraft, other than that it is stigmatised: this, insofar as it helps to explain the stigma attached to mental illness, clearly relates to, and reinforces, the appellant’s claim of social isolation. The Court was plainly mistaken in thinking that there was “no” information in support of the claim of social isolation. It is equally plain that the failure to engage with available information about country is a failure to properly engage with or consider a claim.

We accept that submission.

41    It is not for this Court to assess whether the degree of social isolation to which the appellant adverted rises to the standard of serious or significant harm. The analysis on judicial review is limited to whether or not there is a realistic possibility that the Tribunal could have been satisfied on those tests had it properly exercised the jurisdiction vested in it.

42    It could not be said that the Tribunal was unable properly to accept that the social isolation to which the appellant adverted was a form of harm sufficient to satisfy the protection criteria upon which his Visa Application rested. On the contrary, had it considered that question, it is conceivable that the Tribunal might have accepted that it was. Its failure to consider it was relevantly material.

Conclusion

43    The Tribunal’s Decision is a product of jurisdictional error. With respect, the FCCA was wrong to conclude otherwise. The appeal should succeed, the Review Application should be remitted back to the Tribunal for hearing according to law, and the Minister should pay the appellant’s costs, both of this appeal and of the Judicial Review Application.

Associate:

Dated:    16 July 2021