FEDERAL COURT OF AUSTRALIA

CHB16 v Minister for Immigration and Border Protection [2019] FCA 1089

ORDERS

THE COURT ORDERS THAT:

1.    The notice of appeal filed 4 September 2018 is dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to the appeal to be taxed failing agreement.

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

REASONS FOR JUDGMENT

REEVES J:

INTRODUCTION

1    This is an appeal from a judgment of the Federal Circuit Court delivered on 6 September 2017 (see CHB16 v Minister for Immigration & Anor [2017] FCCA 2685 (CHB16)). The primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal), the second respondent, which affirmed a decision of a delegate of the Minister for Immigration and Border Protection, the first respondent, not to grant the appellant a Protection (class XA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

THE FACTUAL CONTEXT

2    The appellant is a Sri Lankan citizen who came to Australia on 18 July 2012 as an unauthorised maritime arrival. He applied for a protection visa on 15 January 2013. He claimed to have been harmed by, and to fear future harm from, a variety of groups on the basis of his Tamil ethnicity, an imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam (the LTTE), as a failed asylum seeker who applied for protection in Australia and due to his illegal departure from Sri Lanka.

3    On 3 February 2014, the Minister’s delegate refused the appellant’s application. In her reasons, the delegate accepted that the appellant was a Sri Lankan citizen, noted his mental health condition and concluded that, while as a Tamil he may have experienced discrimination and harassment during the civil war in Sri Lanka, she did not accept that the appellant was, or would be, of any interest to the Sri Lankan authorities, or others in Sri Lanka, should he return there, whether on suspicion of LTTE involvement or otherwise.

THE TRIBUNAL’S DECISION

4    On 25 February 2014, the appellant applied to the Refugee Review Tribunal, as the Tribunal then was, for a merits review of the delegate’s decision. On 10 May 2016, the Tribunal conducted a hearing at which the appellant gave evidence and was represented. That hearing was conducted with the assistance of an interpreter.

5    Subsequent to the hearing, the appellant’s representative provided additional written submissions and medical reports to the Tribunal which were directed to establishing that the appellant was, and had been, suffering from depression and post-traumatic stress disorder (PTSD).

6    The claims that the appellant made to the Tribunal and its conclusion with respect to those claims were conveniently summarised in the primary judge’s reasons as follows (CHB16 at [9]–[13]):

9.    The Tribunal identified the [appellant’s] claims, including that his brother had been abducted and not found at paragraphs [24] to [27] of the Tribunal decision. At paragraph [28] the Tribunal rejected those claims on the grounds, amongst others, that they were:

... vague, lacking in details and at times inconsistent with his written claims.

10.    At paragraph [47] [sic – [48]] of the decision the Tribunal made findings that it did not accept that the [appellant] had faced a real chance of serious harm on the basis of an imputed political opinion as a Tamil, a failed asylum seeker or as a result of his time spent in Australia or because he was from the eastern region of Sri Lanka.

11.    The Tribunal also considered the claims in relation to mental health concerns and did so at paragraphs [8] to [15] of the decision. The Tribunal accepted that the [appellant] had suffered from mental health conditions including depression linked to PTSD which affected his ability to concentrate.

12.    In relation to a claim that the [appellant] faced persecution as a member of the social group of returned failed asylum seekers, the Tribunal considered country information and at paragraph [69] accepted that upon return to Sri Lanka, the [appellant] is likely to face questioning at the airport as to his activities during the time he had been abroad. The Tribunal found that as a result of his Tamil ethnicity, he may also face questioning about any links that he may have with the LTTE. The Tribunal did not accept that he would face a real chance of persecution on the basis of his imputed political opinion.

13.    Further the Tribunal did not accept that the treatment to which the [appellant] would be subjected on his return to Sri Lanka as an illegal departee amounted to significant harm. The Tribunal was not satisfied that there were substantial grounds for believing, as a necessary and foreseeable consequence of the [appellant] being removed from Australia to Sri Lanka, that there was a real risk that he would suffer significant harm as a consequence of the poor conditions in prison. Further, the Tribunal was not satisfied that there was a necessary intention on the part of the Sri Lankan authorities to inflict pain, suffering or extreme humiliation. That approach was correct having regard to the decision of the High Court in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 at [27].

(Emphasis added; footnote omitted)

7    Further to [6(12)] above, the Tribunal noted that, despite the appellant’s mental health condition, he had continued to work in Australia. Accordingly, it did not accept that his mental health condition was “so severe as to affect his capacity to work on return to Sri Lanka or to otherwise result in a real chance of serious harm or real risk of significant harm in Sri Lanka”.

8    On 1 August 2016, the Tribunal affirmed the delegate’s decision. In summary, the Tribunal was not satisfied that the appellant had been, or would be, of any particular interest to the Sri Lankan authorities, or others, and that, should he return to Sri Lanka, he would not face a real chance of serious or significant harm from the authorities, or others.

THE FEDERAL CIRCUIT COURT DECISION

9    On 18 August 2016, the appellant, now unrepresented, applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. In his application, he simply asserted, without any particulars, that the Tribunal’s decision was “affected by an error of law” and that he had been “denied … procedural fairness”. In response, the Minister submitted that, without meaningful particulars, the application did not raise an arguable case and should be dismissed under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

10    In due course, the primary judge accepted the Minister’s submissions and dismissed the application.

THE GROUNDS OF APPEAL

11    The appellant filed an application for extension of time and leave to appeal in this Court on 27 October 2017. He then filed an amended application on 17 April 2018. That application was granted by Kenny J on 3 September 2018. On 4 September 2018, he filed his notice of appeal, which set out two grounds of appeal, as follows:

1.    The Federal Circuit Court of Australia erred in finding that the [appellant] 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 [appellant].

…

2.    The Federal Circuit Court of Australia erred in finding that the [appellant] 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.

…

    (Bolded term in original)

12    The following particulars were provided. For ground 1 above:

(a)    The [appellant] 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 [appellant] 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 [appellant’s] representative had stated that “little medical or other support is likely to be available to [the appellant]” in Sri Lanka. Without support or treatment, the [appellant’s] mental health was likely to deteriorate.

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

13    And for ground 2 above:

(a)    On 29 July 2016, the [appellant] provided the Tribunal with a letter from a psychiatrist who had examined the [appellant] on 24 May 2016. In the letter, the psychiatrist diagnosed the [appellant] 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 [appellant’s] representative had stated that “little medical or other support is likely to be available to [the appellant]” in Sri Lanka.

(c)    There clearly arose from the material before the Tribunal a claim that the [Appellant] 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 [appellant’s] favour.

(d)    In its decision record, the Tribunal accepted that “the [appellant] 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 [appellant] would be able to access treatment or support for his mental health issues in Sri Lanka, or consider whether the [appellant’s] mental health would deteriorate if he were to return to Sri Lanka.

(Emphasis in original)

THE CONTENTIONS

14    The appellant was represented by counsel at the hearing of this appeal. He relied on the written submissions that had been filed in support of his application before Kenny J for an extension of time and leave to appeal. With respect to ground of appeal 1, the appellant claimed that the primary judge should have found that the Tribunal fell into jurisdictional error by failing to consider an integer of one of his claims, namely that the treatment that he would experience on return to Sri Lanka, of being monitored and questioned by the Sri Lankan authorities, would amount to serious harm in his personal circumstances. Specifically, he contended that, while such monitoring and questioning of returnees by the authorities would not generally reach the level of serious harm, the Tribunal should have considered, but did not, whether that conduct, together with his mental health condition and his inability to access appropriate treatment or support in Sri Lanka, would cause his mental health to deteriorate to that level of harm.

15    The appellant raised similar contentions with respect to ground of appeal 2. On that ground, he claimed that the primary judge should have found that the Tribunal fell into jurisdictional error by failing to consider his claim that he would face a real risk of significant harm in Sri Lanka because the combination of factors mentioned above may cause his mental health condition to deteriorate to the point where he engaged in self-harm or suicide.

16    The Minister also relied on the written submissions he had filed in connection with the appellant’s application before Kenny J. As to ground of appeal 1, the Minister contended that the appellant had not referred to any mental health condition he suffered, or to any lack of available treatment for such a condition in Sri Lanka, in his protection visa application, or in his accompanying statutory declaration dated 16 December 2012, or during his interview with the delegate in October 2013. Further, he contended, while the appellant’s medical records lodged with the delegate in November 2013 did suggest that the appellant suffered from PTSD, he did not, at that time, raise any concern about a lack of appropriate treatment for that condition in Sri Lanka.

17    Finally on this aspect, he contended that the appellant did not claim that, on his return to Sri Lanka, “he would face a real chance of harm on account of a lack of available treatment in Sri Lanka for any mental health condition suffered by him” in the further statutory declaration he made in May 2016, or in the written submissions he lodged with the Tribunal prior to the May 2016 hearing before the Tribunal, or during that hearing, at which he gave evidence and was represented. Instead, so the Minister contended, it was not until June 2016, when the appellant’s representative provided additional written submissions to the Tribunal, that it was submitted, for the first time, that the appellant’s mental health condition “was ‘highly relevant’ to any prospect of the [appellant] facing serious or significant harm in Sri Lanka”.

18    Even if such a claim had been properly advanced before the Tribunal, the Minister contended that the Tribunal had given detailed and careful consideration to the evidence and submissions advanced with respect to the appellant’s claims concerning his mental health condition. Having done so, he submitted that, while the Tribunal had accepted that the appellant had suffered, and continued to suffer, from “mental health vulnerabilities including depression linked to PTSD which impacts on his functioning, including his ability to concentrate”, it did not accept that his mental health condition was “so severe as to affect his capacity to work on return to Sri Lanka or to otherwise result in a real chance of serious harm or real risk of significant harm in Sri Lanka”. Thus, so the Minister contended, the Tribunal had, at the very least, dealt with those claims, albeit “at a higher level of generality”. With respect to ground of appeal 2, the Minister submitted that no such claim clearly arose on the materials before the Tribunal and, even if it did, self-harm did not constitute significant harm for the purposes of s 36. Accordingly, he submitted, neither of the appellant’s grounds of appeal was made out and the appeal should be dismissed.

THE RELEVANT LEGISLATIVE PROVISIONS

19    The criteria that an applicant for a protection visa must satisfy are set out in subsection 36(2) of the Act. If the Minister is satisfied that an applicant meets those criteria and the other matters set out in s 65(1) of the Act, he or she must grant the visa. When the appellant made his application on 15 January 2013, subsection 36(2) provided:

A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 …

20    I interpose to note that this subsection was amended by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (the Amending Act) (Schedule 5, Part 2, item 10). Further, of particular relevance to this matter, in the same set of amendments, s 91R was repealed (Schedule 5, Part 2, item 12) and replaced by ss 5H and 5J. However, under the transitional provisions to the Amending Act, those amendments only applied to applications for protection visas that were made on and after the day upon which Schedule 5, Part 4, item 28 commenced. That day was fixed to be 16 December 2014 (items 3 and 22 of the table in s 2 of the Amending Act). Accordingly, ss 36(2) and 91R of the Act, as in force prior to 16 December 2014, applied to the appellant’s protection visa application.

21    Among other things, s 91R added the concept of “serious harm” to the criteria set out in s 36(2)(a) above. Since it no longer appears in the Act, it is appropriate to set out its relevant parts in these reasons, as follows:

(1)    For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

(a)    that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

(b)    the persecution involves serious harm to the person; and

(c)    the persecution involves systematic and discriminatory conduct.

(2)    Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)    a threat to the person’s life or liberty;

(b)    significant physical harassment of the person;

(c)    significant physical ill-treatment of the person;

(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;

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

…

22    Finally on this topic, it is appropriate to set out Art 1A(2) of the Convention Relating to the Status of Refugees (Refugees Convention) which is mentioned in s 91R(1) above. It defines a “refugee” as 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.

23    Sections 36(2A) and 36(2B) of the Act have remained essentially the same throughout the relevant period. They define the phrase “a real risk that the non-citizen will suffer significant harm” in s 36(2)(aa) above, 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.

(2B)    However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)    the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

THE RELEVANT PRINCIPLES

24    The Tribunal’s review task in respect of a delegate’s decision on a protection visa application is prescribed by the provisions of Part 7 of the Act. That task was described by Gummow and Hayne JJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 (S395/2002) as involving subjective and objective elements as follows (at [72]–[75]):

72    It is well established that the Convention definition of “refugee” has subjective and objective elements. Does the applicant fear persecution for a Convention reason (the subjective element)? Is that fear well founded (the objective element)? The fear will be well founded if there is a real chance that the applicant would face persecution for a Convention reason if the applicant returned to the country of nationality.

73    The objective element requires the decision-maker to decide what may happen if the applicant returns to the country of nationality. That is an inquiry which requires close consideration of the situation of the particular applicant. It requires identification of the relevant Convention reasons that the applicant has for fearing persecution. It is necessary, therefore, to identify the “reasons of race, religion, nationality, membership of a particular social group or political opinion” that are engaged.

74    Because the question requires prediction of what may happen, it is often instructive to examine what has happened to an applicant when living in the country of nationality. If an applicant has been persecuted for a Convention reason, there will be cases in which it will be possible, even easy, to conclude that there is a real chance of repetition of that persecution if the applicant returns to that country. Yet absence of past persecution does not deny that there is a real chance of future persecution.

75    Again, because the question requires prediction, a decision-maker will often find it useful to consider how persons like the applicant have been, or are being, treated in the applicant’s country of nationality. That is useful because it may assist in predicting what may happen if the applicant returns to the country of nationality. But, as with any reasoning of that kind, the critical question is how similar are the cases that are being compared.

(Footnote omitted)

25    As the Tribunal correctly noted in its reasons (at [88], see at [56] below), the real chance test referred to in S395/2002 relevantly equates to the “real risk” of significant harm under s 36(2)(aa) (see Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; [2013] FCAFC 33).

26    These observations, together with those made in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 391 and 432 and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 571–573, led the Full Court in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114 (MZYTS) to describe the Tribunal’s task under the objective element mentioned above as a “predictive or speculative” one (see MZYTS at [32]–[34]). The Court said (MZYTS at [35]):

The determination of whether there is an objective basis for the person’s fear is the central part of the predictive or speculative task referred to in Chan and Guo. It can only be undertaken by reference to an assessment of, and findings of fact about, the circumstances in the person’s country of nationality at the time the person is likely to be returned there …

27    In making its assessment as to whether an applicant has met the criteria in s 36(2) above, the Tribunal is required to consider the claims, evidence, contentions and other materials an applicant duly puts before it. In particular, the Tribunal is obligated to consider “claims that are expressly articulated and those which clearly arise from the materials before the Tribunal”. The former also requires the Tribunal to have regard to each of the component integers of a claim (see Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136; [2001] FCA 1802 at [42] per Allsop J). The latter “includes a claim raised by the evidence and contentions before the Tribunal which if resolved in one way would or could be dispositive of the review” (see DFE16 v Minister for Immigration and Border Protection [2018] FCAFC 177 at [19] per Reeves, Rangiah and Colvin JJ, citing NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 (NABE) at [60]–[63]).

28    Furthermore, with respect to the latter, in NABE, the Full Court approved the view expressed by Cooper J in SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137; [2003] FCAFC 120 at [19] that an “unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it” (NABE at [58]). The Court added that “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”. On the same theme, in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15], Allsop J (as his Honour then was) considered that the Tribunal was not required to “undertake an independent analytical exercise” of the materials before it to determine whether such an unarticulated claim existed. His Honour said:

A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.

29    These observations were approved by the Full Court in Minister for Immigration and Citizenship v SZRMA (2013) 219 FCR 287; [2013] FCAFC 161 at [70] per Mansfield, Gilmour and Foster JJ.

30    In assessing whether the Tribunal has complied with its statutory review functions referred to above, its reasons “should not be scrutinised ‘minutely and finely with an eye keenly attuned to the perception of error’” (see Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 at [45] per Griffiths, White and Bromwich JJ and Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272).

31    As for the concepts of “serious harm” and “significant harm”, for the purposes of ss 91R and 36(2A) respectively, first, it is to be noted what was said about the interpretive purpose of s 91R of the Act in Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610; [2015] HCA 22 (WZAPN) at [68] per French CJ, Kiefel, Bell and Keane JJ:

Section 91R was not enacted to expand the scope of Australia’s protection obligations beyond those undertaken by it under the Convention. In VBAO, Callinan and Heydon JJ said that s 91R is a “manifestation of a statutory intent to define persecution, and therefore serious harm, in strict and perhaps narrower terms than an unqualified reading of [Art 1A(2)] might otherwise require”, and that it was enacted to “raise the threshold of what can properly amount to ‘serious harm’, within the spirit of the Refugees Convention”.

(Footnotes omitted)

32    These considerations and others expressed at [69]–[70] of WZAPN led their Honours to the following summary (at [71]):

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. That approach is not engaged automatically upon the demonstration of any breach, or apprehended breach, of human rights in their country of nationality or former habitual residence.

33    The question of whether “harm”, whether serious or significant, could arise from the deterioration of a pre-existing mental health condition was considered by Collier J in CSV15 v Minister for Immigration and Border Protection [2018] FCA 699 (CSV15). Her Honour concluded that the requisite harm must be caused or inflicted by another person or persons (see at [30]–[34]). I will return to this issue below.

34    Finally, in order to constitute jurisdictional error, a breach of the Tribunal’s obligations as outlined above must be material in the sense described by the High Court in Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252; [2019] HCA 3 (SZMTA) at [45] per Bell, Gageler and Keane JJ, as follows:

Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.

GROUND OF APPEAL 1 – THE MENTAL HEALTH CONDITION CLAIM

35    As the Minister correctly pointed out in his contentions, the appellant’s claim that his mental health condition was likely to deteriorate if he were to return to Sri Lanka was first articulated in two post-hearing submissions that his authorised agent provided to the Tribunal. I interpolate to record that, in these reasons, I will generally refer to this claim as the appellant’s mental health condition claim. The first articulation appeared in a letter dated 15 June 2016. In that letter, the appellant’s agent made the following submission:

We submit further that [the appellant’s] mental health is highly relevant to the assessment of whether there is a real chance he would suffer serious harm requiring protection under the Refugees Convention; as well as to whether there is a substantial risk he would suffer significant harm engaging complementary protection obligations. We will explain this further below, alongside addressing other issues which were raised at the hearing.

36    The explanation for this submission was set out later in that letter under the heading “2.2 [The appellant’s] mental health and particular vulnerability”. It was as follows:

[The appellant] 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 on his return to Sri Lanka amounts to ‘serious harm’ … A person’s particular vulnerabilities must be taken into account in assessing the seriousness of harm.

37    In the next paragraph, the appellant’s agent emphasised the importance of the appellant’s particular vulnerabilities and quoted, in support, the first two sentences of [71] of WZAPN set out above (at [32]). She then submitted that the risk of the appellant suffering serious or significant harm arose out of the likely exacerbating effect on his mental health condition of the “monitoring and harassment” of Tamils and/or of illegal returnees in general. Specifically, she submitted:

… that even if the Tribunal takes the view that [the appellant] 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 appellant] 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 appellant] 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.

(Emphasis added)

38    The second post-hearing submission was contained in an email the appellant’s authorised agent sent to the Tribunal on 29 July 2016. This email was sent in response to a request from the Tribunal that a letter be provided “from the psychiatrist in question to confirm the diagnosis and on what basis she arrived at that diagnosis”. A report from Dr Hettiarachchi, a psychiatrist, was attached to the email. With respect to that report, the appellant’s agent made the following submission:

The letter from Dr Hettiarachchi explains her diagnosis and the basis for her diagnosis. In our submission, the detail in this letter concerning [the appellant’s] PTSD symptoms further corroborates his claims to have experienced significant trauma in Sri Lanka, and his genuine subjective fear of persecution if he is returned to Sri Lanka. 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.

(Emphasis added)

39    Pertinent to ground 2, discussed below, in her report, Dr Hettiarachchi expressed the following opinions about the appellant, including his suicidal tendencies and the risk of self-harm:

Current Presentation:

He presented to me with poor sleep and poor concentration. He presents with depressive symptoms characterised by persistent low mood, feeling sad, low energy, feeling tired, amotivation, has lost interest in activities. He tends to isolate himself. He has fleeting suicidal thoughts and passive death wishes feeling better off dead stating that he does not like living anymore but denied intent at the moment. He also described physical symptoms such as burning pain and chest pain. He was investigated to exclude an organic cause, however pain is persistent. In addition to this, he described symptoms of PTSD characterised by repeated memories of trauma, flashbacks, nightmares and avoidant behaviour. He reported that his brother was kidnapped by Sri Lankan Army and also he was threatened to shoot as well and gone through trauma during the war. He continue to feel anxious that his life is at risk and he still feels that the CID is looking for him. Concerned about safety, he stated he came to Australia thinking that it is safe and felt happy initially, however it has been quite hard to adjust stating that he is unable to forget the memories and he misses family. He has had no treatment in the past. Described symptoms lasting for more than few months. No identified family history. No substance use or alcohol history.

…

Risks:

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.

Diagnoses:

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

(Errors in original; emphasis added)

40    These two post-hearing submissions clearly articulated a particular claim (the present claim) concerning the appellant’s mental health condition. Furthermore, that claim was duly placed before the Tribunal prior to it making its decision on the appellant’s review application. Consistently with the principles outlined above, the Tribunal was therefore required to consider it, together with its component integers. Hence, the Minister’s contentions that this claim only emerged late in the piece can be rejected as immaterial.

41    The present claim had three limbs, or integers, to it. The first was that the appellant had been diagnosed with PTSD, depression and anxiety. The second was that he was likely to be monitored and harassed on his return to Sri Lanka as a Tamil, or he was likely to be questioned and monitored as a returned asylum seeker, or both. And the third was that, because of his “particular vulnerabilities” (the first integer above), the harassment, monitoring or questioning to which he was likely to be subjected (the second integer above), combined with his likely inability to obtain appropriate treatment for his mental health condition in Sri Lanka, meant that that condition was likely to deteriorate such that he was likely to suffer serious harm.

42    The second leg of this claim, it should be noted, related to both the protection obligations under s 36(2)(a) above, that is as a Tamil, and the complementary protection obligations under s 36(2)(aa), that is as a returned asylum seeker.

43    As for the third integer of this claim, the Minister submitted that it was an assertion that was unsupported by any evidence. While it may be true to say it took that form, it still constituted an integer of the present claim and, as such, it required proper consideration by the Tribunal. This contention can also be rejected.

44    Having identified the appellant’s articulated claim and its component integers, it is necessary to next examine how, or if, the Tribunal dealt with it. First, at [10] of its reasons, the Tribunal referred to the appellant’s authorised agent’s post-hearing submission of 15 June 2016 and noted that:

On 15 June 2016 the Tribunal received from the representative a letter from the [appellant’s] GP dated 10 June 2016 who states that the [appellant] has been her patient since December 2012 and that he suffers from Major Depression and PTSD, diagnosed by a psychiatrist (Dr Dimuth Chamar Hettiarachchi) on 24 May 2016 after a mental health assessment. In her submission attached to the letter from the [appellant’s] GP the representative submitted that [appellant] was diagnosed as suffering from PTSD in November 2013, but had been unable to access treatment from a psychologist; after the hearing he was referred by his GP for a mental health assessment on 24 May 2016 and those results were reported to his GP; due to cost constraints, the [appellant] was not able to obtain a written report by the psychiatrist; he has been prescribed medication and referred for ongoing counselling; and he is also on the waiting list for trauma counselling at Foundation House.

45    It will be noted that this passage is directed solely to the nature of the appellant’s mental health condition. As noted above, this concerns the first integer of the present claim.

46    Secondly, at [12], the Tribunal set out the crux of the submissions the appellant’s agent had made concerning his mental health condition, as follows:

The representative submitted that the [appellant’s] mental health is relevant to his protection claims as follows (as addressed below in relation to the [appellant’s] specific claims):

•    His PTSD diagnosis is corroborative of his reported history of trauma in Sri Lanka (noting that at the hearing he said he was ‘psychologically affected’ and distressed while speaking about his past experiences and the situation of his family);

•    With respect to assessing and evaluating his evidence given at hearing, especially past difficulties remembering dates and confusing events; and

•    Whether any harm he may experience on return amounts to serious harm under s.91 R, taking into account his particular vulnerabilities. For instance, lesser forms of harm such as general monitoring and harassment might be serious harm because of his mental health.

47    Two things should be noted about this paragraph. First, the appellant does not raise any issue in this appeal about the Tribunal’s treatment of the matters mentioned in the first two dot points above. Instead, his complaint concerns the matter raised in the last dot point. Secondly, while in that passage the Tribunal mentioned the first two integers of the present claim, namely his “particular vulnerabilities” and the “general monitoring and harassment” that may occur on his return to Sri Lanka, it did not mention the third integer.

48    Finally, at [83], the Tribunal recorded the following details of the present claim:

As mentioned, in her submission to the Tribunal the representative argues that the [appellant’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 [appellant] than it may on others. The Tribunal notes that in his oral and written evidence to the Tribunal the [appellant] 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 would mean that any discrimination, harassment and monitoring he experienced would rise to the level of serious harm. It is submitted that the [appellant’s] circumstances in this case justify a similar conclusion.

(Footnote omitted; emphasis added)

49    It will be noted that the emphasised part of this paragraph above closely follows the appellant’s authorised agent’s submission of 15 June 2016 set out at [37] above. Thus it mentions the appellant’s “particular vulnerabilities”, the monitoring and harassment (but not questioning) in both contexts (of Tamils and of returnees), and the “greater effect” those two factors were likely to have on the appellant were he to return to Sri Lanka. Significantly, however, it does not mention the potentially exacerbating factor mentioned in the third integer, namely his likely inability to obtain appropriate medical treatment for his mental health condition were he to return there. That fact is plainly significant because, as the appellant’s authorised agent acknowledged in her post-hearing submission, without it operating on the appellant’s personal circumstances, or “particular vulnerabilities”, the monitoring and harassment concerned “would not generally of itself be considered to reach the level of serious harm” (see at [37] above).

50    To sum up, while it has clearly identified the first two integers of the present claim in these passages of its reasons where it identified the appellant’s claims concerning his mental health condition, the Tribunal did not mention the third integer.

51    However, this conclusion does not exclude the possibility that the Tribunal, nonetheless, properly considered that integer of the present claim elsewhere in its reasons either specifically, or, as the Minister contended, at a “higher level of generality”. For this reason, it is necessary, next, to consider those reasons in more detail.

52    The Tribunal’s reasons were essentially divided into two parts. The first part at [16]–[86] dealt with the appellant’s protection claims and was headed accordingly. The second part at [87]–[92] dealt with his complementary protection claims and was headed “Complementary protection assessment” (bolded in original).

53    Turning, first, to the former, the conclusions the Tribunal came to in respect of the appellant’s mental health condition appeared in the last section of that part, under the heading “Psychological harm” (italicised in original). It followed immediately after the paragraph where the Tribunal recorded the details of the present claim (see at [48] above) and was in the following terms (at [84]):

As reasoned in earlier sections of this decision, the Tribunal does not accept that the [appellant] 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 [appellant] 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 [appellant’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.

(Emphasis added)

54    There were six “earlier sections” of that first part of the Tribunal’s decision. They were: “Claims of past harm in Sri Lanka”, “Fear of paramilitary groups”, “Family of the disappeared”, “Tamil ethnicity and origins from the east”, “Failed asylum seekers” and “Illegal departure” (italicised in original). In those sections, the Tribunal rejected all of the appellant’s protection claims because, based upon his evidence and submissions about his past history in Sri Lanka, it did not accept that he would face a real chance of serious harm on his return to Sri Lanka: either as a Tamil, or because of an imputed pro-LTTE political opinion, or because he originated from the east of Sri Lanka, or because he would be of interest to paramilitaries such as the Tamil Makkal Viduthalai Pulikal (aka the Tamil Peoples Liberation Tigers), or as a family member of the disappeared, or because of the time he had spent in Australia, or as a failed asylum seeker. This summary explains the first sentence of [84] of the Tribunal’s reasons.

55    When considered in its proper context, the phrase in the second sentence of [84] – “the processes he faces in connection with his illegal departure” – appears to refer to the Tribunal’s findings in the last two sections of the first part of its reasons headed: “Illegal departure” and “Failed asylum seekers” (italicised in original). Those processes were variously described in at least three paragraphs of those two sections in the following terms:

Failed asylum seekers

…

69.    The Tribunal accepts that upon return to Sri Lanka the [appellant] is likely to face questioning at the airport as to his activities during the time he has been abroad and that given his Tamil ethnicity, he may also face questioning about any links he may have with the LTTE …

…

72.    While the Tribunal accepts that the [appellant] as a Tamil failed asylum seeker returnee may be subjected to a process of questioning by the Sri Lankan authorities immediately on his return to Sri Lanka …

…

Illegal departure

…

81.    The Tribunal accepts that prison conditions in Sri Lanka are generally poor and notes DFAT’s assessment in their latest report is that in general prison conditions in Sri Lanka do not meet international standards because of lack of resources, overcrowding and poor sanitary conditions. However the Tribunal does not accept that the [appellant] faces a real chance of persecution for any reason (Convention or non-Convention related) during any short term period of being detained. The Tribunal is not satisfied that any problems the [appellant] may face as a result of questioning, charges, overcrowding and unsanitary conditions in remand are aimed at the [appellant] for any Convention reason, but are factors which apply to the general population. The Tribunal is not satisfied therefore, that questioning[,] arrest, detention and the poor conditions in remand amount to systematic and discriminatory conduct as required by s.91R(1)(c). Nor does the Tribunal accept that the [appellant] being detained for a short period in the prison conditions and fined constitutes serious harm.

(Footnote omitted)

56    As mentioned above, the second part of the Tribunal’s reasons addressed the appellant’s complementary protection claims. In its conclusions to that part, beginning at [88], the Tribunal commenced by reiterating its rejection of the appellant’s protection claims, as summarised above (see at [54]). It then reiterated its rejection of the appellant’s claims with respect to his mental health condition (see at [53]). That whole paragraph read as follows:

88.    For reasons set out above, the Tribunal has not accepted there to be a real chance that the [appellant] will suffer serious harm at the hands of the authorities or paramilitaries if he returns to Sri Lanka now or in the foreseeable future on the basis of his actual or imputed political opinion, Tamil ethnicity, origins and residence in the east, membership of a particular social group of returned failed asylum seeker, or as a family member of a disappeared person. The Tribunal also has not accepted that the [appellant] faces a real chance of serious harm for any reasons when taking into account his vulnerabilities and mental health concerns. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition. For the same reasons the Tribunal does not accept that there is a real risk the [appellant] will suffer significant harm for any of those reasons as a necessary and foreseeable consequence of the [appellant] being removed from Australia to Sri Lanka.

(Footnote omitted; emphasis added)

57    The Tribunal then turned to consider a number of other aspects of the claims the appellant had made concerning complementary protection. They included claims that he would be subjected to torture or suffer cruel or inhuman and degrading treatment on his return to Sri Lanka and that the prison conditions there and the processes that would be followed in dealing with him as an illegal departee would constitute significant harm. In rejecting those claims, the Tribunal did not return to the appellant’s mental health condition, or any of the integers of the present claim. It did, however, mention the possibility that the appellant would be questioned at a number of points as follows (at [89]–[91]):

89.    The representative has made a number of submissions (and referenced country information where relevant) about the real risk the [appellant] would be subject to torture or suffer cruel or inhuman and degrading treatment on return to Sri Lanka once detained for departing illegally and because of the extremely poor prison conditions, which the Tribunal has had regard to. In terms of real risk of significant harm on return to Sri Lanka on account of his illegal departure from the country, for the reasons set out above, the Tribunal has accepted that the [appellant] will be questioned at the airport upon his return to Sri Lanka, that he will likely be charged with departing Sri Lanka illegally and that he could be held on remand for a brief period while awaiting a bail hearing. The Tribunal does not accept on the information before it there to be a real risk that the [appellant] will face torture, or other types of significant harm as set out in s.36(2A) of the Act, either during his questioning at the airport or during any period he spends on remand. The Tribunal considers that the [appellant] will be granted bail on his own recognisance or with family members as guarantor and that if convicted of charges under Sri Lanka’s I&E Act, he will likely face a fine. The Tribunal does not accept that the [appellant] will be unable to pay such a fine if it is imposed upon him, given he has family members in Sri Lanka. Nor does it accept on the evidence before it that there is a real risk the [appellant] would be subjected to treatment constituting significant harm as that term is exhaustively defined in section 36(2A), either during his questioning at the airport or during the short period that he may spend on remand awaiting a bail hearing.

90.    The Tribunal accepts that prison conditions in Sri Lanka are generally poor and not up to international standards and notes the discussion of prison conditions in the relevant [Procedures Advice Manual 3] provisions, but the Tribunal does not accept that there is the necessary intention on the part of the Sri Lankan authorities to inflict pain, suffering or extreme humiliation. Further, given the country information suggests that any period of detention the [appellant] may face would be for a short term, the Tribunal does not accept that this would constitute significant harm. In regard to the penalty the [appellant] may face, based on the information cited above, the Tribunal does not accept that this will manifest itself in the mandatory imposition of a term of imprisonment or that the [appellant] would not be able to pay any fine that may be imposed on him as he would have the assistance of family members to meet such a financial penalty. As discussed with the [appellant] at [the] hearing, although sources indicate that prison conditions are poor, the information before the Tribunal does not tend to indicate that there is a real risk that a person, including a failed asylum seeker like the [appellant], would suffer significant harm in prison if they were only held for a few days or a couple of weeks.

91.    The Tribunal does not accept that the process of questioning the [appellant] may be subjected to, the imposition of a fine as punishment and the [appellant’s] charge and conviction under the I&E Act amounts to significant harm because there is no intention on the part of the Sri Lankan authorities to inflict pain, suffering or extreme humiliation in relation to these matters. Further, the Tribunal finds on the country information cited above, that any treatment the [appellant] may face upon return to Sri Lanka, including a fine and detention and poor prison conditions, would not amount to significant harm as this would apply to every person in Sri Lanka who breached the illegal departure law. As this is a real risk faced by the population generally and not the [appellant] personally, under s.36(2B)(c) there is taken not to be a real risk that the [appellant] will suffer significant harm.

(Emphasis added)

58    It can be seen from this review of the Tribunal’s reasons that the third integer of the appellant’s present claim was not mentioned in those paragraphs of the reasons where the Tribunal identified the claims he had made concerning his mental health condition (see at [48] above). Indeed, there is some indication from [83] of the Tribunal’s reasons that it may have misconceived how the present claim was being put (see at [49] above). Nonetheless, when the Tribunal expressed its conclusions in respect of the appellant’s mental health condition in the protection claims part of its reasons, it did make specific mention of the first and second integers of the present claim (see at [53] above). Furthermore, while it did not expressly mention the possibility that the appellant may not be able to access appropriate medical treatment in Sri Lanka, it did accept that the appellant “will find returning to Sri Lanka … confronting”. And, in concluding that, in that context, he did not face “a real chance of serious harm in Sri Lanka”, it added “for any of the reasons claimed or arising on the evidence”. Then, at [88], in the “Complementary protection assessment” (bolded in original) part of its reasons (see at [56] above), the Tribunal referred to, and relied upon, the above reasoning and extended it to reject the “real risk” of him suffering significant harm “as a necessary and foreseeable consequence of [him] being removed from Australia to Sri Lanka”.

59    Thus, on a fair reading and one not undertaken “minutely and finely with an eye keenly attuned to the perception of error” (see at [30] above), I consider the reference to “confronting” above generally described the situation that the appellant claimed may arise from a combination of the three integers of the present claim. Similarly, I consider the concluding words of the same paragraph set out above generally extended to cover this claim and all of its integers. Accordingly, I consider there is sufficient to conclude that the Tribunal did consider all of the integers of the present claim, including the third integer, when making its review decision. That is to say, I broadly accept the Minister’s submissions that the third integer, in particular, was dealt with by the Tribunal at a “higher level of generality”.

60    For these reasons, I do not consider the appellant has made out his first ground of appeal.

GROUND OF APPEAL 2 – THE SELF-HARM CLAIM

61    This ground of appeal is confined to the complementary protection provisions of s 36(2)(aa) of the Act. The appellant accepts that this particular claim was not clearly articulated before the Tribunal. However, he claims that it arose with sufficient clarity from the following materials before the Tribunal to require that it be considered by it:

    first, the submission in his authorised agent’s letter dated 15 June 2016 (the last sentence bolded at [37] above); and

    secondly, the opinion expressed by Dr Hettiarachchi in her report under the heading “Risks” (bolded in original) (bolded at [39] above).

62    The appellant contended that these materials advanced the claim that there was a real risk that he would suffer significant harm if he were to return to Sri Lanka because the combination of those factors meant that there was a heightened risk of him harming himself or committing suicide on return.

63    There is a number of reasons why these contentions cannot be accepted. First, and most fundamentally, even on the most generous reading, I do not consider such a claim arose “squarely” or “tolerably clearly” (see at [28] above) on the materials to which the appellant has referred. That is so because the risks of suicide were described in Dr Hettiarachchi’s report as “fleeting” and the intent to suicide was denied by the appellant. Furthermore, the risks “towards self” were expressed in that report in equivocal terms. They depended on the appellant’s situation in Australia remaining “unresolved”, they did not mention harm as such (although that may be implicit) and her opinion was not expressed in terms that there was a “real risk” of its occurrence, but rather that those risks “can increase”.

64    Secondly, even if such a claim did arise as contended, its content and effect is very similar to the present claim advanced under ground of appeal 1 above and, for the reasons expressed with respect to that ground, I consider that claim, and therefore this claim (if it arose), was duly considered by the Tribunal in its review decision.

65    Thirdly, on the same assumption as immediately above and for the following reasons, I do not consider self-inflicted harm constitutes “harm” for the purposes of ss 36(2)(aa) and 36(2A). In CSV15, one of the appellant’s claims was “that she would not survive in India because she suffered from depression and was suicidal” (CSV15 at [8]). Collier J concluded that this form of harm did not fall within the concept of “serious harm” under ss 36(2)(a) and 91R of the Act, then in force, or “significant harm” under ss 36(2)(aa) and 36(2A) (CSV15 at [30] and [34] respectively). The crux of her Honour’s reasoning was that both forms of harm referred to “acts perpetrated by others which cause[d] the non-citizen to suffer harm” (emphasis in original). In relation to s 91R, her Honour considered this conclusion was supported by the provisions of subsections 91R(1)(c) and 91R(2). She said (at [30]):

… the concepts of “persecution” and serious harm as detailed in s 91R of the Act indicated that the concern of Parliament is with acts perpetrated by others which cause the non-citizen to suffer harm. So much was also clear from s 91R(1)(c), which required systematic and discriminatory conduct. And although it is a non-exhaustive list of what constitutes “serious harm”, s 91R(2) of the Act included a list of actions that could be perpetrated against the non-citizen by another person.

(Emphasis in original)

66    In my view, these conclusions, with which I respectfully agree, apply with even more force to the conduct and harm described in s 36(2A) of the Act.

67    First, the language used in s 36(2A) of “depriv[ing]” or “subject[ing]” points to the involvement of others. Secondly, depriving a person of life, carrying out the death penalty, subjecting a person to torture or subjecting a person to treatment or punishment that is cruel or inhuman or degrading, are all acts that quintessentially require the involvement of another person or persons, usually an arm of government, or somebody with sufficient power or authority to perpetrate such acts. Thirdly, the protective purpose of the complementary protection provisions in s 36(2)(aa) suggests the involvement of persons against whose conduct such protection is necessary. As the Full Court explained in Minister for Immigration and Citizenship v MZYYL (2012) 207 FCR 211; [2012] FCAFC 147 at [18]–[20] per Lander, Jessup and Gordon JJ, that regime engages Australia’s protection obligations under various international conventions dealing with matters including civil and political rights, the rights of the child and preventing torture.

68    Accordingly, I do not consider that self-inflicted harm falls within the concept of harm to which s 36(2A) is directed.

69    Fourthly, and relatedly, even if such a claim did arise, as contended, and if the Tribunal breached its review obligations by not considering it, I do not consider that breach constituted jurisdictional error because, even if the Tribunal had complied with its obligations in that regard, for the reasons given above, I do not consider it “could realistically” have resulted in a different decision (see SZMTA at [34] above).

70    For these reasons, I do not consider the appellant has made out his second ground of appeal.

CONCLUSION

71    For the reasons set out above, I do not therefore consider that the appellant has made out either of his two grounds of appeal. That being so, I do not consider that he has demonstrated any error in the primary judge’s decision to dismiss his application for judicial review of the Tribunal’s decision. It follows that his appeal to this Court must be dismissed with costs. The orders will be:

1.    The notice of appeal filed 4 September 2018 is dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to the appeal to be taxed failing agreement.

Associate:    

Dated:    12 July 2019