FEDERAL COURT OF AUSTRALIA

CHB16 v Minister for Immigration and Border Protection [2018] FCA 1349

ORDERS

THE COURT ORDERS THAT:

1.    The applicant have an extension of time until 17 April 2018 within which to apply for leave to appeal.

2.    The applicant have leave to appeal from the interlocutory judgment of the Federal Circuit Court of Australia delivered on 6 September 2017.

3.    The applicant have leave to file his notice of appeal in the form of the “amended draft notice of appeal from the Federal Circuit Court of Australia” dated 13 August 2018 by 4 pm on 5 September 2018.

4.    The hearing of the appeal be on a date to be fixed.

5.    The first respondent pay the applicant’s costs of the amended application dated 10 April 2018 and filed on 17 April 2018, as agreed or taxed.

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

REASONS FOR JUDGMENT

KENNY J:

1    This is an application for an extension of time within which to seek leave to appeal and leave to appeal from a judgment of the Federal Circuit Court of Australia (Federal Circuit Court) delivered on 6 September 2017. On that date, the Federal Circuit Court exercised its power under r 44.12(1)(a) of the Federal Circuit Court Rules 2011 (Cth) (FCC Rules) to dismiss the applicant’s application for an order that the respondents show cause why a remedy ought not be granted under s 476 of the Migration Act 1958 (Cth) (Migration Act) in respect of a migration decision of the Administrative Appeals Tribunal (Tribunal) made on 1 August 2016. The Tribunal had affirmed the decision of a delegate of the respondent Minister (delegate) not to grant the applicant a Protection (Class XA) visa (protection visa).

2    The Federal Circuit Court published written reasons for judgment on 2 November 2017. These written reasons were revised from reasons given ex tempore on 6 September 2017. These written reasons may be cited as CHB16 v Minister for Immigration & Anor [2017] FCCA 2685.

3    As indicated, the primary judge dismissed the application for an order to show cause pursuant to r 44.12(1)(a) of the FCC Rules. Rule 44.12(2) of the FCC Rules specifies that a dismissal under r 44.12(1)(a) is interlocutory in nature. Accordingly, the applicant requires leave to appeal: s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

4    Pursuant to r 35.13(a) of the Federal Court Rules 2011 (Cth) (the Rules), the applicant was required to file any application for leave to appeal within 14 days after the date on which the interlocutory judgment in question was pronounced or the order was made. The applicant had therefore to file an application for leave to appeal by 20 September 2017 to be within time. The applicant did not file an application for leave to appeal by that date. He therefore requires an extension of time to do so. The Court may grant such an extension of time under r 35.14.

5    Both parties were represented by counsel at the hearing of this application on 22 August 2018. Both parties filed written submissions and made oral submissions on the application at that hearing.

Background

6    The applicant is a citizen of Sri Lanka. He arrived in Australia by boat on 18 July 2012, and applied for a protection visa on 15 January 2013. The applicant provided statutory declarations dated 16 December 2012 and 30 October 2013 to the delegate, and attended an interview before the delegate on 17 October 2013. The delegate refused to grant the protection visa on 3 February 2014.

7    Relevantly to the present application, in his 30 October 2013 statutory declaration, the applicant gave further information to support his claims, including that he had been “extremely stressed” and had a problem concentrating. He requested that the delegate take his “mental health condition” into account in assessing his claims. On 14 November 2013, the applicant’s representative provided the Tribunal with medical records about the applicant, which indicated that he was suffering from post-traumatic stress disorder (PTSD).

8    On 25 February 2014, the applicant applied to what was then the Refugee Review Tribunal (now and at the time of decision, the Tribunal) for review of the delegate’s decision. The applicant appeared before the Tribunal on 10 May 2016 to give evidence and present arguments, with the assistance of a representative and an interpreter. The applicant provided a further statutory declaration dated 4 May 2016 and written submissions dated 6 May 2016 to the Tribunal.

9    In his 4 May 2016 statutory declaration, the applicant set out further details of his claims and, relevantly, also stated that, since he had been in Australia, he had been suffering from depression, had sought medical help, and that his representative was helping him to make arrangements to see a psychologist.

10    In the applicant’s 6 May 2016 submissions, his representative stated:

As explained in [the applicant’s] Statutory Declaration … we are assisting [him] to arrange treatment by a psychologist, as he has not yet been able to access medical services in this regard. We note the reports submitted to the [delegate] in November 2013, indicating that [he] presented with symptoms of PTSD. We are seeking to gain further medical evidence concerning [the applicant’s] current mental health, and will provide these to the Tribunal as soon as possible.

11    At the hearing on 10 May 2016, the applicant claimed that he had a well-founded fear of persecution in Sri Lanka, or would face a real risk of significant harm if returned to Sri Lanka, for a number of reasons. In summary, the applicant claimed to fear harm by reason of his Tamil ethnicity, being imputed with a political opinion supportive of the Liberation Tigers of Tamil of Eelam (LTTE), returning to Sri Lanka as a failed asylum seeker and/or being subject to Sri Lankan illegal departure laws. Relevantly, in relation to the application now before the Court, the applicant also gave evidence and advanced claims based on his mental health.

12    Following the hearing, the Tribunal gave the applicant additional time to provide updated information about his mental health.

13    On 15 June 2016 the applicant provided further written submissions, which were accompanied by a letter from the applicant’s general medical practitioner concerning his mental health. The applicant’s 15 June 2016 submissions referred to the applicant’s mental health and a diagnosis of “a major depressive disorder and PTSD”.

14    On 29 July 2016, the applicant provided to the Tribunal a letter dated 30 May 2016 from a psychiatrist who had examined the applicant on 24 May 2016. In the letter, the psychiatrist said:

[The applicant] is a 32-year-old single man who is from Sri Lanka, came to Australia in 2011 as an asylum seeker presenting with symptoms of major depressive disorder with co-morbid PTSD. This is in the context of trauma for many years where he was exposed to war and his brother was kidnapped and possibly been killed, having PTSD, traumatic memories and flashbacks related to the trauma now presenting with significant depressive symptoms impacting his functioning. Sleep disturbances and lack of concentration has been a significant issue for him.

15    The psychiatrist diagnosed the applicant as follows:

Major depressive disorder, moderate severity with co-morbid PTSD symptoms. No personality disorder elicited. Grief and adjustment reaction is another co-morbid feature.

16    Under the heading “Risks”, the psychiatrist said:

There are fleeting suicidal thoughts, but denied intent however if depressive symptoms remain unresolved and if his situation remains unresolved, the risk towards self can increase. Risk to others are low.

17    In the submissions of 15 June 2016, the applicant claimed that his diagnosed mental health issues were relevant to the Tribunal’s review in three ways: first, that the PTSD diagnosis corroborated the applicant’s claimed history of trauma in Sri Lanka; second, that the Tribunal should take into account the applicant’s mental health issues in assessing his credibility at the hearing; and third, that his mental health was “highly relevant” to the assessment of whether there is a real chance he would suffer serious or significant harm in Sri Lanka.

18    In relation to the last–mentioned matter, it was said (under a heading directed to the applicant’s “mental health and particular vulnerability”), that:

[The applicant] has been diagnosed as suffering from severe depression and PTSD. In our submission, his mental health is relevant to the consideration of whether any harm he would face upon his return to Sri Lanka amounts to ‘serious harm’ under s 91R of the Migration Act 1958. A person’s particular vulnerabilities must be taken into account in assessing the seriousness of harm. Professors Hathaway & Foster write:

Courts relying on human rights norms to identify serious harm for refugee law purposes have appropriately insisted, for example, that personal attributes such as ‘age and frailty’ may have an impact on the seriousness of harm.

In the recent case of Minister for Immigration and Border Protection v WZAPN and another, the High Court reached the conclusion that:

It is persecution, involving serious harm inflicted by the violation of fundamental rights and freedoms, from which the convention and s 91R of the Act are concerned to provide asylum. Both the convention and s 91R of the Act embody an approach which is concerned with the effects of actions upon persons in terms of harm to them.…

We thus submit in the alternative … that even if the Tribunal takes the view that [the applicant] is not of particular adverse interest to the authorities, the treatment he would experience on return to Sri Lanka would nonetheless amount to serious harm in his personal circumstances. Country information, including that contained in our pre-hearing submission and the most recent DFAT report, indicates that there continues to be monitoring and harassment of Tamils by the security forces in the Eastern and Northern Provinces. We refer also to the information about the process and treatment of returned asylum seekers, including questioning and monitoring following return. We acknowledge that such treatment would not generally of itself be considered to reach the level of serious harm. However, [the applicant] has clearly been significantly affected by the harm he has experienced from the authorities in the past, and the harm experienced by his family, in particular the abduction of his younger brother, and he is now suffering from PTSD and depression. In this context, further monitoring or harassment from the authorities is likely to have a greater effect on [the applicant] than it may on others who do not have the same vulnerabilities. We submit that the effect on his mental health, in a context where little medical or other support is likely to be available to him (and to the contrary, where the government continues to strenuously deny that human rights abuses have occurred), amounts to serious harm.

We refer to his evidence given at the hearing, and at paragraph 10 of his Statutory Declaration submitted to the Tribunal in this respect that ‘If I were forced to return to Sri Lanka, I would be living in constant fear that my life would end soon. I would be fearful all the time that I would be kidnapped and killed like my brother. Even thinking about it makes me become panicked and distressed. I am unable to sleep’.

(Bold text original, footnotes omitted, underlining added).

19    The email from the applicant’s representative to the Tribunal attaching the psychiatrist’s letter stated:

… We submit that this expert evidence about his significant mental health issues and need for ongoing treatment further supports the conclusion that he would suffer serious harm if returned to Sri Lanka, due to his particular vulnerability and the impact on his mental health, as explained in our post-hearing submission.

20    The Tribunal acknowledged in its decision record that it had before it both the psychiatrist’s letter and the submission made on 15 June 2016 at the time of its decision.

Tribunal’s Decision

21    As already stated, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa. For various reasons, which it is not necessary to set out for present purposes, the Tribunal did not accept that the applicant had a well-founded fear of persecution in Sri Lanka, or would face a real risk of significant harm if returned to Sri Lanka, by reason of his Tamil ethnicity, being imputed with a political opinion supportive of the LTTE, returning to Sri Lanka as a failed asylum seeker and/or being subject to Sri Lankan illegal departure laws.

22    As the applicant submitted, however, the Tribunal nonetheless accepted a number of aspects of his evidence. It accepted that the applicant’s brother was abducted in February 2006, and that some of the applicant’s relatives were killed in a bomb attack in May 2006: Tribunal reasons, at [27], [40]. It also accepted that the circumstances of the applicant’s brother’s abduction have never been solved, and that the abduction of the applicant’s brother and other Tamils affected the applicant emotionally and psychologically: Tribunal reasons, at [27], [32]. It accepted that the applicant would be at “some risk” on return to Sri Lanka because of his mother’s activities in relation to his missing brother: Tribunal reasons, at [56].

23    In relation to the applicant’s mental health, the Tribunal accepted that the applicant “has suffered and continues to suffer from mental health vulnerabilities including depression linked to PTSD which impacts on his functioning, including his ability to concentrate”: Tribunal reasons, at [13]. The Tribunal also accepted the psychiatrist’s assessment that “the applicant’s symptoms are consistent with PTSD and depression in the setting of multiple trauma”: Tribunal reasons, at [14].

24    The Tribunal addressed the applicant’s claim that the treatment that he would experience on return to Sri Lanka (such as monitoring and questioning) would amount to serious harm in his personal circumstances: Tribunal reasons, at [83]-[84]. It stated as follows:

[83]    As mentioned, in her submission to the Tribunal the representative argues that the applicant’s mental health is relevant to whether any harm he faces in Sri Lanka rises to the level of serious or significant harm in Sri Lanka. It was submitted that this is particularly relevant in the context of continued monitoring and harassment of Tamils by security forces in the eastern and northern provinces, and of returnees, and that monitoring and harassment in such circumstances constitutes serious harm. Given his particular vulnerabilities, any further monitoring or harassment from the authorities is likely to have greater effect on the applicant than it may on others. The Tribunal notes that in his oral and written evidence to the Tribunal the applicant indicated his fears in this respect. It was also submitted that this is particularly relevant in the context of information regarding the extent of militarisation in the North and East of Sri Lanka, and harassment of Tamils by the security forces. Reference is made to a statement by the UN High Commissioner for Human Rights at the end of his mission to Sri Lanka in February 2016 that the element of fear whilst diminished in Colombo and the South still exist in the north and east. Reference is also made to another recent Tribunal decision about a Tamil applicant with a history of trauma, whose brother-in-law had disappeared, and who had been diagnosed with PTSD and depression where the Tribunal found that his vulnerably [sic] would mean that any discrimination, harassment and monitoring he experienced would rise to the level of serious harm. It is submitted that the applicant’s circumstances in this case justify a similar conclusion.

[84]    As reasoned in earlier sections of this decision, the Tribunal does not accept that the applicant has been seriously harmed by the Sri Lankan authorities in the past as claimed, or that he has been singled out for adverse attention or mistreatment by the Sri Lankan authorities as he has claimed. The Tribunal accepts, however, that the applicant suffers from PTSD, depression and anxiety and that he will find returning to Sri Lanka and the processes he faces in connection with his illegal departure confronting. However, the Tribunal does not accept that he will be singled out for harm or mistreatment by the Sri Lankan authorities. The Tribunal is not satisfied, even in the context of what the Tribunal accepts of the applicant's vulnerabilities and mental health concerns that he faces a real chance of serious harm in Sri Lanka, as contemplated by the relevant law, for any of the reasons claimed or arising on the evidence.

25    The Tribunal concluded that, having considered the applicant’s claims individually and cumulatively, the applicant did not face a real chance of persecution on return to Sri Lanka for any Convention reason in the reasonably foreseeable future and that his fear of persecution was not well-founded. Further, the Tribunal stated that it “has not accepted that the applicant faces a real chance of serious harm for any reasons when taking into account his vulnerabilities and mental health concerns”.

26    When the Tribunal turned to consider whether the applicant would face a real risk of significant harm if returned to Sri Lanka, as it was required to do in considering whether the applicant satisfied the criterion in s 36(2)(aa) of the Migration Act (as opposed to the discussion above in relation to s 36(2)(a)), it said merely that, “[f]or the same reasons”, it did not accept that there was a real risk the applicant would suffer significant harm “for any of those reasons” as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka: Tribunal reasons, at [88]. That is, it did not separately address whether there was a real risk that the adverse effect of official treatment on the applicant’s mental health, in his personal circumstances and in the conditions prevailing in Sri Lanka with respect to mental health care, would, on his return there, amount to significant harm within the meaning of s 36(2A) of the Migration Act, before concluding that it was not satisfied that the applicant met the criterion in s 36(2)(aa) of the Migration Act.

Federal Circuit Court proceeding

27    On 18 August 2016, the applicant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. The applicant’s grounds of review were:

1.    The decision of the Tribunal:

(a)    is affected by an error of law; and

(b)    denied the applicant procedural fairness.

2.     I have made an application for assistance through Victorian Legal Aid and am waiting for a decision.

28    The primary judge noted that the applicant had provided no particulars or details of the grounds such as would raise an arguable ground for review. Further, in his ex tempore judgment, the primary judge stated that he had reviewed the Tribunal’s decision record for the purpose of determining whether there was an arguable ground for review that the applicant had not articulated, and was not satisfied that there was one. As noted, the Federal Circuit Court dismissed the application at a show cause hearing under r 44.12(1)(a) of the FCC Rules.

consideration of Application for an extension of time and leave to appeal

29    The applicant seeks an extension of time in which to seek leave to appeal and leave to appeal to permit him to challenge the decision of the Tribunal on the following grounds:

1.    The Federal Circuit Court of Australia erred in finding that the Applicant did not have an arguable case. The Federal Circuit Court should have found that the Administrative Appeals Tribunal (Tribunal) fell into jurisdictional error by failing to consider an integer of a claim made by the applicant.

PARTICULARS

(a)    The Applicant claimed that, because of his diagnosed mental health issues, the treatment that he would experience on return to Sri Lanka (such as monitoring and questioning by the Sri Lankan authorities) would amount to serious harm in his personal circumstances.

(b)    An integer of that claim was that the applicant would not receive support or treatment for his diagnosed mental health issues in Sri Lanka. In written submissions to the Tribunal filed on 15 June 2016, the Applicant's representative had stated that “little medical or other support is likely to be available to [the applicant]” in Sri Lanka. Without support or treatment, the Applicant's mental health was likely to deteriorate.

(c)    In considering whether the treatment that the Applicant would experience on return to Sri Lanka would amount to serious harm in the Applicant’s personal circumstances, the Tribunal failed to consider whether the Applicant would be able to access treatment or support for his mental health issues in Sri Lanka, or to consider whether the Applicant's mental health would deteriorate if he were to return to Sri Lanka.

2.    The Federal Circuit Court of Australia erred in finding that the Applicant did not have an arguable case. The Federal Circuit Court should have found that the Tribunal fell into jurisdictional error by failing to consider a claim that clearly arose from the materials.

PARTICULARS

(a)    On 29 July 2016, the applicant provided the Tribunal with a letter from a psychiatrist who had examined the applicant on 24 May 2016. In the letter, the psychiatrist diagnosed the Applicant as follows: “Major depressive disorder, moderate severity with co-morbid PTSD symptoms. No personality disorder elicited. Grief and adjustment reaction is another co-morbid feature.” Under the heading “Risks”, the psychiatrist said: “There are fleeting suicidal thoughts, but denied intent however if depressive symptoms remain unresolved and if his situation remains unresolved, the risk towards self can increase. Risk to others are low.” (Emphasis added.)

(b)    In written submissions to the Tribunal filed on 15 June 2016, the Applicant’s representative had stated that “little medical or other support is likely to be available to [the applicant]” in Sri Lanka.

(c)    There clearly arose from the material before the Tribunal a claim that the Applicant would face a real risk of significant harm in Sri Lanka because his major depressive disorder would remain untreated and would deteriorate to the point where he engaged in self harm or suicide. Suicide and self harm can constitute “significant harm” within the meaning of s 36(2A) of the Migration Act 1958 (Cth). Accordingly, the claim was one that could have been dispositive of the review, if considered and determined in the Applicant’s favour.

(d)    In its decision record, the Tribunal accepted that “the applicant suffers from PTSD, depression and anxiety and that he will find returning to Sri Lanka and the processes he faces in connection with his illegal departure confronting” (at [84]).

(e)    However, the Tribunal did not consider whether the Applicant would be able to access treatment or support for his mental health issues in Sri Lanka, or consider whether the Applicant's mental health would deteriorate if he were to return to Sri Lanka.

30    Plainly, these are new grounds not raised in the Federal Circuit Court. Besides an extension of time and leave to appeal, the applicant also requires leave to raise these grounds on appeal to this Court.

31    The principles applicable to the exercise of the Court’s discretion to grant an extension of time within which to seek leave to appeal are well established. These principles require consideration of the explanation for the delay, any prejudice to the respondent, and the merits of the substantive appeal. The principles governing the grant of leave to appeal are also well established. The Court must consider whether the judgment under challenge is attended by sufficient doubt to warrant the grant of leave to appeal, and whether substantial injustice would result if leave to appeal were refused. To like effect, Perry J said in BAO15 v Minister for Immigration and Border Protection [2016] FCA 214 at [19] that:

The considerations relevant to determining whether to grant an extension of time include the length of the delay, the applicant’s explanation for the delay, any prejudice to the respondent and the substantive merits of the proposed appeal: SZSPR v Minister for Immigration & Border Protection and Another [2013] FCA 1210; (2013) 139 ALD 109 at 113 [16]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349. Relevant considerations to deciding whether to grant leave to appeal include whether an appeal would have any reasonable prospects of success and whether the applicant would suffer substantial injustice if leave were refused, assuming the decision subject to appeal is wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399.

32    The Court may grant leave for a ground not raised below to be raised on appeal where it considers it is expedient and in the interests of justice that the ground be entertained on the appeal. The relevant principles are well-established: Haritos v Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [79]–[83], especially at [79] where the Full Court endorsed the approach taken in Summers v Repatriation Commission [2015] FCAFC 36; 230 FCR 179. The Court’s assessment of what is expedient and in the interests of justice is very much dependent on the circumstances of the particular case: see Minister for Immigration and Border Protection v Aulakh [2018] FCAFC 91 at [104] per Mortimer J.

33    In this case, the considerations that support the conclusion that the applicant’s present application should succeed also lead me to the conclusion that the applicant should have the requisite leave to raise the proposed grounds even though they were not raised before the primary judge in the Federal Circuit Court.

34    In his affidavit affirmed in support of his present application, the applicant deposes that he was unrepresented at the hearing in the Federal Circuit Court on 6 September 2017 and that he suffers from the diagnosed mental health conditions to which reference has already been made. It is also apparent that he appeared in that Court with the assistance of an interpreter and had not yet received the reasons of the primary judge in written form by the time he was required to file his application for leave to appeal. In these circumstances, the short delay was adequately explained.

35    Whether the applicant can overcome his present procedural hurdles to have the Court entertain his appeal on the grounds set out above (see [29]) depends on whether or not these proposed grounds have sufficient prospects of success to warrant the grant of the requisite leave. The respondent Minister submitted that the applicant had not established that there were sufficient prospects of success, or, in the terms of Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399, that the judgment of the Federal Circuit Court was attended by sufficient doubt to warrant the grant of leave to appeal. The Minister did not contend that the applicant would not suffer substantial injustice if the decision of the primary judge were wrong and leave were refused. Such a contention would be difficult to maintain in such a case as this, where the prospective appeal concerns the Tribunal’s decision to refuse to grant the applicant a protection visa.

Applicant’s proposed grounds of appeal

36    The first proposed ground is that the Federal Circuit Court should have found that the Tribunal fell into jurisdictional error by failing to consider an integer of the applicant’s claim that because of his diagnosed mental health issues, the treatment that he would experience at the hands of the Sri Lankan authorities on return to Sri Lanka would have a greater effect on him and amount to serious harm in his personal circumstances. The applicant contended that an integer of this claim was that he would not receive support or treatment for his diagnosed mental health issues in Sri Lanka, and that he intended to argue that the Tribunal failed to consider whether he would be able to access treatment or support for his mental health issues in Sri Lanka, or to consider whether his mental health would deteriorate if he were to return to Sri Lanka.

37    The authorities establish that where the Tribunal fails to deal with a claim that is clearly articulated, or that clearly arises from the material before it, the failure to deal with the claim may constitute jurisdictional error. The Tribunal may fail to deal with a claim by misunderstanding or misconstruing the claim, and basing its conclusion on the claim so misunderstood or misconstrued. It may also fail to deal with a claim, and thus fall into jurisdictional error, if it fails to deal with one or more of the component integers of the claim: see Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; 233 FCR 136 at [42] per Allsop J, with whom Spender J agreed; and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [63] per Black CJ, French and Selway JJ.

38    The Minister’s first submission on this point was that the claim as now articulated by the applicant was not expressly made before the Tribunal and did not clearly emerge from the available materials. The Minister submitted that the “single passing reference” in the applicant’s 15 June 2016 submissions (see [18] above) did not give rise to any claim that the applicant would face a real chance of serious or significant harm in Sri Lanka on account of a lack of available treatment there for his mental health condition.

39    Counsel for the applicant submitted to the contrary, contending that the 15 June 2016 submissions specifically argued that the applicant’s mental health was relevant in assessing whether there was a real chance that he would suffer serious harm. Counsel in particular relied on the passages from the 15 June 2016 submissions, which are set out at [18] above. In my opinion these passages strongly support the applicant’s counsel’s submission. That is, they show that the applicant’s representative specifically contended in these submissions that the applicant would have little medical or other support on his return to Sri Lanka, and that the applicant himself affirmed that his mental state was likely to deteriorate if he were required to return to Sri Lanka. As counsel for the applicant put it, the claim was that, because of the applicant’s particular circumstances, conduct by the Sri Lankan authorities that might not otherwise amount to serious harm would amount to serious harm in the applicant’s particular case, because of his diagnosed mental health disorders and the lack of adequate medical or other support in Sri Lanka to address those disorders. The medical reports that the applicant presented to the Tribunal might be thought to provide some further indication that a claim of this kind was being made or sufficiently emerged from the evidence and submissions when considered as a whole.

40    The applicant further submitted that, in order to form the requisite state of satisfaction in respect of the criterion in s 36(2)(a) of the Migration Act, the Tribunal was required to consider the ways in which the conduct of the Sri Lankan authorities would affect the applicant if he were returned to Sri Lanka, in light of his mental health issues. This in turn required the Tribunal to form a view about whether the applicant’s mental health would deteriorate in Sri Lanka, in the absence of treatment or support. The applicant submitted that the Tribunal accepted that the applicant suffered from serious mental disorders but did not consider whether the applicant’s mental health would deteriorate if he were to return to Sri Lanka or whether the applicant would be able to access treatment or support for his mental health issues in Sri Lanka. Without considering the likely severity or extent of the applicant’s mental health issues on his return to Sri Lanka, the applicant submitted that the Tribunal could not properly deal with the applicant’s claim that the conduct of the Sri Lankan authorities in relation to him would amount to serious harm.

41    The Minister submitted that the Tribunal addressed the claim in respect of the relevant criterion, albeit at a level of some generality. The Minister submitted that it was unnecessary for the Tribunal to make a finding on the particular matter because it had been subsumed in findings of greater generality or the factual premises upon which the contention rested had been rejected. At the hearing, counsel for the Minister further submitted that there were alternative and independent bases upon which the Tribunal might have determined to refuse the applicant a protection visa, including on the basis that there was no Convention nexus.

42    The apparent defect in the Tribunal’s reasons was, however, its failure to address a claim that was clearly articulated, or that clearly arose from the material before it, which is at the least strongly indicative of jurisdictional error. It is not evident that it would be sufficiently addressed at the level of generality the Minister advocated. It is not self-evident, in the circumstances, that the Minister can support the Tribunal’s decision on an alternative basis: this submission should fall for argument on the appeal.

43    The second proposed ground is that the Federal Circuit Court should have found that the Tribunal fell into jurisdictional error by failing to consider a claim that clearly arose from the materials, which claim was, in summary, that the applicant would face a real risk of significant harm in Sri Lanka because his diagnosed mental health issues would remain untreated and would deteriorate to the point where he engaged in self-harm or suicide.

44    Counsel for the applicant submitted that this claim was sufficiently raised by the materials that the Tribunal should have dealt with it. In particular, counsel relied on the letter provided to the Tribunal on 29 July 2016, in which the psychiatrist diagnosed the applicant with “major depressive disorder”, with co-morbid PTSD symptoms and, under the heading, “Risks” stated:

There are fleeting suicidal thoughts, but denied intent however if depressive symptoms remain unresolved and if his situation remains unresolved, the risk towards self can increase. Risk to others are low.

(Emphasis added).

45    Counsel for the applicant submitted that this letter, together with the statement made by the applicant’s representative in the email to the Tribunal on 29 July 2016 referring to the “need for ongoing treatment” and the statement in the 15 June 2016 submissions that “little medical or other support is likely to be available” in Sri Lanka, gave rise to a claim that, if resolved in one way, would or could have been dispositive of the review. Counsel submitted that the claim, if accepted, was capable of falling within the definition of “significant harm” on the basis that it could be said that the harm that the applicant would face by reason of his deteriorating mental condition on return to Sri Lanka was the result of the acts or omissions of the Sri Lankan authorities. In the alternative, whilst acknowledging that CSV15 v Minister for Immigration and Border Protection [2018] FCA 699 (CSV15) was to the contrary, counsel for the applicant submitted that self-harm can constitute “significant harm” within the meaning of s 36(2A) of the Migration Act.

46    The Minister argued, first, that the Tribunal was not obliged to address this claim; secondly, that, the Tribunal’s findings dealt with any such claim at a level of generality that subsumed that claim; and, thirdly, that the Tribunal’s decision had an alternative and independent basis, in that there was no evidence of the requisite element of intention.

47    Here too, the apparent defect in the Tribunal’s reasons was its failure to address the claim as outlined. There is a strong basis for holding that the claim, as articulated, arose sufficiently clearly from the material to require the Tribunal to address it. There is little, if any, indication in the Tribunal’s reasons that it considered the claim in this form. Nor is there any indication that it had had regard to the risks of harm identified by the psychiatrist. Although it did make some general statements about the risk of harm arising from the applicant’s mental health, the Tribunal did not address whether the applicant would be able to access treatment or support for his mental health issues in Sri Lanka, or consider whether the applicant’s mental health would deteriorate if he were to return to Sri Lanka.

48    It is also not evident that it would be sufficiently addressed at a higher level of generality, as the Minister submitted. It may well be that, as the applicant submitted, the Tribunal’s finding that any mental health condition suffered by the applicant was not so severe as to result in a real chance of serious or significant harm to him in Sri Lanka was solely a finding about the applicant’s present state and not a finding in which the Tribunal turned its mind to the applicant’s state of mind in the future.

49    Whether or not the Minister might rely on an alternative and independent basis is also an issue that should be argued on the appeal. Further, it does not seem to me that CSV15 is a complete answer to the applicant’s submissions on proposed ground two, bearing in mind the applicant in that case was unrepresented and it does not appear from the judgment that there was any significant argument on this point.

50    For the reasons stated, there is sufficient merit in the proposed grounds, or sufficient prospects of success, to warrant the grant of the requisite extension of time and leave to appeal, which includes leave to rely on the proposed grounds set out in the amended draft notice of appeal dated 13 August 2018, even though they were not raised before the Federal Circuit Court.

Associate:

Dated:    3 September 2018