FEDERAL COURT OF AUSTRALIA

CPJ17 v Minister for Immigration and Border Protection (No 2) [2018] FCA 1664

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The judgment and orders of the primary judge are set aside and, in lieu thereof:

(a)    a writ of certiorari issue quashing the decision of the second respondent;

(b)    a writ of mandamus issue, directed to the second respondent, differently constituted, requiring it to determine the referred review in relation to the appellant in accordance with the law;

(c)    the first respondent is to pay the appellant’s costs of and incidental to the proceedings before the primary judge.

3.    The first respondent is to pay the appellant’s costs of and incidental to the appeal, such costs to exclude:

(a)    costs attributable to the withdrawn application referred to in paragraphs 2 and 3 of the appellant’s written submissions dated 9 May 2018, to be assessed on the basis that the application accounted for two hours of the hearing on 16 May 2018;

(b)    costs of and incidental to the appellant’s interlocutory application filed on 1 July 2018.

4.    The parties have liberty to apply to vary or revoke the order in paragraph 3, such liberty to be exercised on or before 9 November 2018.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    The appellant is a citizen of Sri Lanka and a Tamil. He appeals from a judgment of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Immigration Assessment Authority: CPJ17 v Minister for Immigration & Anor [2017] FCCA 3176. The Authority affirmed a decision of a delegate of the now-titled Minister for Home Affairs refusing to grant him a protection visa under s 65 of the Migration Act 1958 (Cth).

2    In support of his visa application, the appellant claimed, among other things, that an armed group of men had come to his family home in April 2012 to take control of the family’s coconut plantation. He claimed that the men attacked his father, and that when he intervened, the men took him away to an army camp where he was detained, severely beaten, forced to drink urine and subjected to sexual assaults. He claimed that after that incident he went into hiding before leaving Sri Lanka illegally.

3    The Authority accepted these aspects of the appellant’s claims. It found that the assailants were possibly associated with a paramilitary group. It accepted that as a result of the incident, the appellant had been too afraid to return to his home. The Authority nonetheless determined that the appellant was of no ongoing interest to the Sri Lankan authorities, military, paramilitary or any other organisation arising from the incident.

4    In circumstances that will soon be explained, the Authority had before it psychological reports to the effect that the appellant suffered from psychological conditions, including post-traumatic stress disorder, and that he was subject to ongoing treatment for these conditions.

5    The single ground of appeal alleges that the primary judge:

… erred in holding that the Assessor had dealt with a claim that squarely arose on the material, namely that he would face harm as a result of the withdrawal of treatment for his mental health issues arising from his sexual assault by members of the Sri Lankan Army.

6    For the reasons that follow, I am satisfied that the judgment is affected by appealable error in the manner alleged. The orders of the primary judge should be quashed and the matter remitted to the Authority.

VISA CRITERIA

7    Relevantly for the purposes of this appeal, it was necessary for the Authority to be satisfied that the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).

8    The Refugee Criterion required that the Authority be satisfied that the appellant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:

… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

9    The Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:

… the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ….

10    The phrase “significant harm” is defined in s 36(2A) of the Act:

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.

11    Some phrases in s 36(2A)(d) and (e) are defined in s 5(1) of the Act:

cruel or inhuman treatment or punishment means an act or omission by which:

(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)    pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

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

(d)    arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

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.

ISSUES

12    The ground of appeal is to be understood having regard to the ground for judicial review advanced in the proceedings before the primary judge:

The Authority has failed to deal with the full integers of the Applicant’s claims, namely to deal with a claim to fear harm arising from being a victim of a number of sexual assaults.

Particulars

1.    That there is no square finding that deals with a claim to face harm arising from the withdrawal of mental health services currently being provided by STARTTS;

2.    The only findings turn to whether, as a victim of sexual assaults, he would be a victim again in the future – as opposed to facing harm as a victim of a sexual assault;

3.    Further and with respect of the psychological matter, these findings were only dealt with and applied to the issue of harm that may occur while he is held in detention – and not in regards to his need for ongoing supporting counselling.

13    The reference in the particulars to “STARTTS” is a reference to the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors. As the particulars allege, STARTTS was providing mental health services to the appellant at the time of the Authority’s decision. The Authority had before it a letter from STARTTS together with a submission from the appellant’s representatives in respect of it. It was necessary for the Authority to consider whether to receive and have regard to that information, having regard to s 473DD of the Act. As part of that enquiry it was necessary to consider, among other things, whether there were exceptional circumstances to justify its receipt and consideration: s 473DD(a). In written reasons for its decision, the Authority said this of the STARTTS document and the accompanying submission (at [5]):

The applicant provided a document to the IAA on 9 December 2016 and a submission on 10 December 2016. The document is a letter of support from the New South Wales Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS). This letter is dated 8 December 2016 and post-dates the delegate’s decision. The referred material includes two reports from STARTTS that were before the delegate and were considered in the decision. The letter of support refers to the claims that were before the delegate and confirms the applicant’s treatment history. It provides an updated assessment of his current psychological health. I am satisfied that this is new information and as it is a report of current status, it could not have been provided to the delegate before the decision was made. I am satisfied that as it provides a current assessment of the applicant’s health, there are exceptional circumstances to justify considering this letter.

14    Later in its reasons, the Authority stated (at [55]) its conclusions in relation to the Refugee Criterion as follows:

Overall, I am not satisfied that the applicant will face a real chance of serious harm on the basis of: his political opinion and support for the TNA; any imputed support for the LTTE; being harassed and assaulted by paramilitary groups; the disappearance of two cousins; his mental health; being a Tamil fisherman; being a Tamil, a young Tamil male, a Hindu and a Tamil from the East; and being a returned asylum seeker who fled Sri Lanka illegally.

15    The Authority’s conclusions (at [59]) with respect to the Complementary Protection Criterion are expressed in similar terms:

I have found that the applicant does not face a real chance of serious harm on the basis of: his political opinion and support for the TNA; being harassed and assaulted by paramilitary groups; the disappearance of two cousins and the complaints lodged; his mental health; and being a young Tamil male from the East, and a Hindu. As ‘real chance’ and ‘real risk’ have been found to equate to the same threshold I find that the applicant does not face a real risk of significant harm for any of these reasons.

16    The emphasis in both passages is mine.

17    The case before the primary judge was that the Authority had failed to deal with an essential integer of the appellant’s claims, namely that he would suffer significant harm if returned to Sri Lanka by reason of his mental health and, more specifically, by the withdrawal of mental health services that to date had been provided by STARTTS. By that submission, the appellant called in aid what the Full Court said in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58]:

…  There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated: Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293-294 (Wilcox and Madgwick JJ).  …  It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 at [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.

18    The primary judge dismissed the application for judicial review on the basis that “no claim to fear harm by reason of the withdrawal of mental health services” had been made, nor did such a claim fairly arise on the material before the Authority. His Honour said:

25.    …  It is apparent that the applicant’s mental health issue and the ongoing consequences of his mental health were taken into account and the subject of dispositive findings by the Authority, by reason of the reference to mental health.

26.    Mr Bodisco of counsel submitted that there was not the provision of adequate reasoning in support of that finding. The Authority’s reasons reflect a thorough, logical and careful active intellectual engagement with the submissions and in particular the psychologist’s report. There is no deficiency in the reasons provided by the Authority in support of the adverse findings. The adverse findings were open for the reasons given by the Tribunal referred to above and cannot be said to lack an evident and intelligible justification. There is no integer of the applicant’s claims that the Authority failed to deal with.

19    Contrary to the conclusions of the primary judge, I am satisfied that the impact of the appellant’s return to Sri Lanka on his mental health was an issue that arose for consideration on the materials before the Authority. In my view, the issue did not depend for its exposure on any constructive or creative activity on the Authority’s part. Rather, it depended for its disclosure on the stark content of the STARTTS report concerning the appellant’s mental state, considered in the context of the traumatising events that the Authority found in fact occurred: the appellant was subjected to arbitrary detention, physically beaten, forced to drink urine and sexually abused.

20    The material contained in the STARTTS report was capable of supporting the conclusions that:

(1)    the appellant had been attending counselling at STARTTS since 2014;

(2)    the appellant attended counselling sessions regularly;

(3)    the appellant suffered symptoms of post-traumatic stress disorder, including flashbacks, intrusive memories and nightmares related to his experiences, anxiety, panic, difficulty with sleep, and feelings of hopelessness regarding his future;

(4)    the appellant’s current psychological health concerns combined with past experiences of persecution and trauma has affected his mood, sleep and general psychological well-being;

(5)    the appellant’s symptoms and presentation were consistent with an individual who had experienced prolonged exposure to threat as indicated by disturbances in arousal levels, re-experiencing symptoms and high levels of fear;

(6)    the appellant had recently reported sudden surges of intense worry, difficulty concentrating and reduced interest in pursuing activities as a result of his fear of being returned to Sri Lanka;

(7)    the appellant continued to engage with supportive counselling, psycho-education, and Cognitive Behavioural Therapy strategies;

(8)    the appellant would benefit from further counselling sessions to support his psychological and emotional health and well-being; and

(9)    ongoing counselling sessions could and would be provided by STARTTS.

21    In my view, having determined that “exceptional circumstances” justified consideration of the recent information concerning the appellant’s mental health contained in the STARTTS report, and having made findings that the appellant had been abused and assaulted in the way that he had claimed, it formed a necessary part of the Authority’s function to consider the combined impact of those matters in assessing whether the appellant fulfilled the visa criteria. The materials themselves give rise to an otherwise unarticulated issue as to whether the appellant would suffer a deterioration in his mental health should he be returned to Sri Lanka, particularly by reason of the cessation of the ongoing treatment then being provided to him by STARTTS. The Authority was obliged to consider and determine that issue on its merits. In my view, the primary judge erred in concluding otherwise.

22    The reasons of the Authority indicate that it did indeed proceed on the basis that the appellant had advanced a claim founded discretely on the current state of his mental health. So much may be inferred from its receipt into evidence of the STARTTS report on the basis that it provided a “current assessment of the applicant’s health” (the relevance of which would be doubtful if it was not capable of supporting a claim to meet the visa criteria), together with the statements at [55] and [59] of its written reasons, which expressly refer to the appellant’s mental health as a discrete (and rejected) basis for the appellant fulfilling the visa criteria.

23    By s 473EA(1) of the Act, the Authority was required to make a written statement setting out the reasons for its decision. The obligation to give reasons included an obligation to set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based: Acts Interpretation Act 1901 (Cth), s 25D. The Authority’s decision record, Counsel submitted, contained no reasons for rejecting the appellant’s implied claim to fulfil the relevant criteria by reason of his mental health. No findings of fact on that topic are stated. Counsel submitted that the mere reference to the appellant’s mental health in the passages to which I have referred does not support an inference that the Authority engaged in an actual intellectual process with the issues arising from the materials. These submissions should be accepted.

24    The only reasoning disclosed by the Authority in respect of the appellant’s mental health is that expressed at [54] of the decision record, which concerns the application of the Immigrants and Emigrants Act to the appellant upon his return:

I take into account the evidence from STARTTS provided by the applicant and note that he has ongoing psychological issues. However, I am satisfied that the provisions and penalties of the I&E Act are laws of general application. The country information before me does not suggest the I&E Act is discriminatory on its terms, that the law is applied in a discriminatory manner or that it is selectively enforced. To the extent that the applicant may be fined, detained or questioned under the I&E Act, I am satisfied this would not constitute serious harm and would be the exercise of laws of general application that apply to all Sri Lankans equally.

25    The first sentence in that passage is curiously placed. In my view, read in context, it evidences the Authority having regard to the appellant’s mental health when considering whether his imprisonment would constitute persecution for a reason referred to in the Refugee Criterion.

26    There is, however, nothing in the reasons to explain the Authority’s findings of fact and conclusions on the law in relation to the Complementary Protection Criterion. The claim founded on mental health is rejected, but the appellant is not informed why. In my view, the absence of reasoning supports an inference that the Authority has not engaged in an active intellectual process in relation to the question.

27    For the Minister it was submitted that there was no evidence before the Authority concerning the state of mental health services in Sri Lanka, and no evidence to support a conclusion that a deterioration in the appellant’s mental state would constitute significant harm as that phrase is defined. As the Minister properly submitted, these are matters “requiring evidence and proof”. The Minister did not otherwise submit that the claim was one that could not possibly succeed on the law, even if the likely deterioration of the appellant’s mental health could be established on the evidence.

28    Notwithstanding the force of the Minister’s submissions in relation to the paucity of evidence, I am not satisfied that the claim is one that is bound to fail. It was for the Authority to consider whether to have regard to country information available to it, or to obtain additional information (within the bounds of the Act), so as to make an assessment of whether the cessation of the services provided by STARTTS would cause (in the requisite sense) mental harm and suffering of a kind that would satisfy the definition of significant harm. To that end, and subject to the limitations on its powers, the Authority would be entitled to access and have regard to additional information relevant to the claim, including country information concerning the availability and effectiveness of mental health services in Sri Lanka. The Authority may also draw inferences as to whether the appellant should reasonably be expected to engage in any services provided by governmental authorities in Sri Lanka, having regard to the past events and his subjective fears of persecution. To say that is not to contradict the Authority’s conclusion that the fears were not objectively well-founded. It is simply to emphasise that the STARTTS report in context squarely raises an issue that does not depend for its determination on the existence of a fear that is objectively well-founded.

29    It is for the Authority to consider whether the facts, as it finds them, satisfy the Complementary Protection Criterion, having regard to the definition of the phrase “significant harm”. The appellant may well face obstacles on the mixed questions of fact and law arising for determination on the review, particularly in respect of those aspects of the definition of significant harm involving an element of intention, however, as I have said, the Minister did not go so far as to say that a claim of the kind now identified would be bound to fail even if it could be shown that there would be an increase in the appellant’s mental pain and suffering upon his return to Sri Lanka.

30    In my view, a consequence of the Authority failing to engage in an active intellectual process in respect of this aspect of the appellant’s circumstances is that it did not exercise its discretion as to whether to obtain and consider evidence available to it that might inform its statutory task. In exercising that discretion, the Authority would be entitled to take into account the circumstance that the new information it had received from the appellant gave rise to an issue not arising before the delegate and not dealt with in the materials referred to it. In the disposition of this appeal, it is not to be assumed that the Authority would have confined itself to the evidentiary material now contained in the appeal book filed in this proceeding had it properly identified and actively engaged with the issue.

31    The appeal should be allowed. The judgment and orders of the primary judge will be set aside and the matter remitted to the Authority, differently constituted, for determination according to law.

Associate:

Dated:    2 November 2018