FEDERAL COURT OF AUSTRALIA

AJZ17 v Minister for Home Affairs [2019] FCA 1485

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit Court dated 1 November 2018 be set aside and in lieu thereof it be ordered that:

(a)    the decision of the second respondent dated 18 January 2017 be set aside;

(b)    the matter be remitted to the second respondent for determination according to law;

(c)    the first respondent pay the applicant’s costs of the proceeding in the Federal Circuit Court, as agreed or assessed.

3.    The first respondent pay the appellant’s costs of the appeal, to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

4.    Within 14 days, the parties file any agreed proposed minutes of orders fixing a lump sum in relation to the appellant’s costs referred to in paragraph 3 above.

5.    In the absence of any agreement:

(a)    within 21 days, the appellant file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);

(b)    within a further 14 days, the first respondent file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and

(c)    in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the appellant’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The appellant, a citizen of Kenya, appeals from a judgment of the Federal Circuit Court of Australia, dismissing his application for judicial review. The proceeding in the Federal Circuit Court concerned a decision of the Administrative Appeals Tribunal (the Tribunal) to affirm a decision of a delegate of the respondent (the Minister) not to grant the appellant a protection visa.

2    The appellant’s three grounds of appeal (set out in his notice of appeal) mirror the three grounds that were raised in the Federal Circuit Court. The appellant’s three grounds of appeal are as follows:

(a)    The Federal Circuit Court erred by failing to find that the Tribunal erred by failing to consider whether any law that led the appellant to be detained by the police or authorities as a result of actions caused by his mental illness was ‘appropriate and adapted’, such that it did not amount to discrimination qualifying as persecution for the purposes of s 36(2)(a) of the Migration Act 1958 (Cth).

(b)    The Federal Circuit Court erred by failing to find that the Tribunal erred by focussing not on the impact of the conduct being persecutory, but on the intent represented by the label (or lack thereof) given by the alleged persecutors. That is, the Tribunal erred by asking the wrong question, which question was concerned with the subjective motivations of the future persecutor of the appellant.

(c)    The Federal Circuit Court erred by failing to find that the Tribunal erred by failing to evaluate an integer of the appellant’s claims for protection under s 36(2)(a) of the Migration Act, namely that there was a real chance of ‘serious harm’ in the form of the appellant being tied up because of his schizophrenia ‘to preserve the reputation of [his] family and community’.

3    For the reasons that follow, I have concluded that ground 1 (set out in (a) above) should be upheld. In light of this conclusion, it is not strictly necessary to consider the appellant’s other grounds. Nevertheless, I make some observations about these grounds.

Background facts

4    The following summary of the background facts is substantially based on the reasons of the primary judge (the Reasons).

5    The appellant is a citizen of Kenya. He belongs to the Kikuyu tribe and comes from a village in the Rift Valley, Kenya. He identifies as a Christian. He has a wife in Kenya who lives with their young child in Nairobi.

6    On 10 October 2014, the appellant was granted a student (Class TU) (subclass 573) visa with an expiry date of 30 August 2018. On 17 October 2014 the appellant arrived in Melbourne.

7    In February 2016, the appellant was admitted to the mental health department of St Vincent’s Hospital in Melbourne for a two-week stay. In May 2016, following a further deterioration of his mental health, the appellant was admitted to the Goulburn Valley Mental Health Service and placed on a compulsory community treatment order. It was at this time that the appellant was diagnosed with schizophrenia. His symptoms included auditory hallucinations, paranoid delusions and erratic behaviour.

8    On 30 May 2016, the appellant’s student visa was cancelled. On 2 June 2016, the appellant was granted a bridging visa, which was cancelled on 29 July 2016.

9    The appellant’s bridging visa was cancelled due to criminal charges in Australia, those being:

(a)    carry controlled weapon without excuse;

(d)    drunk in a public place;

(e)    place thing on a railway track;

in relation to which the appellant was found guilty and released on an undertaking to be of good behaviour for a 12-month period. The appellant was also to comply with any conditions or directions under the Mental Health Act 2014 (Vic).

10    On 29 July 2016, the appellant entered immigration detention. He lodged his application for a protection visa from immigration detention on 24 August 2016. In his application, the appellant included a statement outlining his claims to engage Australia’s protection obligations. The appellant attended a protection visa interview at the Maribyrnong Immigration Detention Centre on 21 December 2016 where he made additions and amendments to his earlier written claims.

11    The appellant’s protection claims were primarily concerned with a risk of harm from the Mungiki, a violent and lawless militia sect in Kenya. He claimed that because he had come to Australia, the Mungiki believe that he has been a witness against them in the International Criminal Court. The appellant claimed that, if he returns to Kenya, the Mungiki will kill him.

12    According to the material submitted to the delegate, the appellant was taking the medication Risperidone. Risperidone belongs to a group of medicines called anti-psychotic agents which improve the symptoms of certain types of mental illness. Risperidone is used for treatment of sudden (acute) and long-term (chronic) schizophrenia and other types of related psychosis. Risperidone has been found to be effective in the management of schizophrenia. In a 2014 study, a statistically significant improvement on various psycho-social parameters was noticed with Risperidone therapy at the end of a study period of one year. Risperidone features on the World Health Organisation (WHO) Model List of Essential Medicines which are the most important medications needed in a basic health system.

13    The content of the above paragraph was set out in the delegate’s decision. The delegate considered the mental health care system available to the appellant in Rwanda. The delegate’s reason for considering Rwanda was that, due to arrangements within the East African Community, the appellant had a right of temporary residence in Rwanda. The delegate noted that “I accept that mentally ill people in Rwanda could constitute a particular social group”. The delegate acknowledged that there was a social stigma attached to mental illness and those that suffered it did experience discrimination according to the country information that was before the delegate. The delegate considered whether there was appropriate medical treatment and whether any inadequate medical treatment would lead to the appellant exhibiting resulting behaviour which would lead to mistreatment by the community and by the authorities. The delegate ultimately found that:

Given the appropriate treatment which is available in Rwanda, which manages the applicant’s condition, I therefore find there are not substantial grounds for believing that there is a real risk that the applicant would not be able to access the required medication or treatment, leading to behaviour that would attract mistreatment, and thus amounting to significant harm.

14    On 17 November 2016, the delegate refused to grant the appellant a protection visa. The appellant applied to the Tribunal for review of the delegate’s decision on 23 November 2016. The delegate’s decision record was before the Tribunal.

15    On 23 December 2016, the appellant’s authorised representative provided a written submission to the Tribunal for and on behalf of the appellant. The submission was accompanied by an additional statement from the appellant dated 22 December 2016.

16    On 9 January 2017, the appellant appeared at a hearing before the Tribunal, assisted by his authorised representative. On 13 January 2017, the appellant’s authorised representative provided the Tribunal with a post-hearing written submission.

17    The post-hearing written submission specifically addressed the claims of the appellant in respect of his mental illness. In particular, it was submitted as follows:

(a)    the appellant was a member of the particular social group “mentally ill persons in Kenya” (the group) and he would be denied medical treatment because of this as the Kenyan government had chosen not to fund mental health services, and the lack of mental health services disproportionately affected members of the group;

(b)    the appellant was at increased risk of harm from Kenyan authorities and community members because of his membership of the group as:

... people in Kenya do not try to understand or obtain medical treatment for this behavior [sic] but rather turn to spiritual or home remedies that cause significant harm and worsen the mental health of those already suffering. The authorities and those in the community do not treat everyone in the community in this way, but rather only those who exhibit symptoms of mental illness.

(c)    the specific vulnerability of a person with schizophrenia had to be taken into account in assessing what constitutes serious harm;

(d)    under the heading “Complementary Protection” the appellant submitted that people with mental illness in Kenya were at risk of being locked away or tied up and that this constituted intentional infliction of pain and suffering even if it was the only known way to deal with mental illness. Further, the appellant submitted:

Given the stigma associated with mental health issues in Kenya ... the motives of family and community members also cannot reasonably solely be attributed to a desire to help but rather can also be regarded as a desire to lock the offending person away to preserve the reputation of the family and community ... the pain and suffering caused by this very brutal pseudo medical treatment is not something that can be considered inadvertent as it is known and intended that this act will lead to pain, suffering and extreme humiliation.

(e)    any form of treatment or punishment the appellant may face from Kenyan authorities because of his behaviour needed to be considered in light of his personal circumstances, and should not be regarded as “simply enacting a law of general application”. Although the appellant would be subject to the same laws and punishments as everyone else, there was a real chance that the appellant would face significant harm if he were in the hands of the Kenyan authorities or in prison, and the chance of this occurring was increased because of the consequences of the appellant’s symptoms of schizophrenia. The appellant specifically feared that if he was imprisoned, and not receiving appropriate medical treatment, his “unstable, erratic and delusional” behaviour may lead to his being subjected to abuse and mistreatment by other prisoners.

The Tribunal’s decision

18    The following summary of the Tribunal’s statement of decision and reasons (the Decision Record) is largely based on the summary contained in the Reasons.

19    A substantial part of the Decision Record was concerned with the appellant’s claims based on imputed political opinion (being anti-Mungiki). That part of the Decision Record is not relevant for present purposes and can be put to one side. For present purposes, the focus is on the appellant’s claims based on membership of a particular social group, namely mentally ill persons in Kenya.

20    Unlike the delegate’s decision record, the Tribunal’s decision concerned the risks posed to the appellant by his removal to the country of his citizenship, namely Kenya.

21    In its Decision Record, the Tribunal made the following findings:

(a)    the appellant had been diagnosed with schizophrenia;

(b)    the Kenyan Government was not discriminating against mentally ill persons in Kenya in its resource allocation decisions apropos mental health services. Upon return to Kenya, the appellant would not face a real chance of being refused medical treatment, and he would not be discriminated against by the Kenyan Government in relation to medical treatment by reason of his membership of the particular social group of mentally ill persons in Kenya (referred to in these reasons as “the group”) (or for any other Convention reason);

(c)    having considered the submissions that the appellant was at increased risk of harm from the Kenyan authorities and community members because of his membership of the group, the Tribunal made the following finding at [83] of the Decision Record:

At the hearing before me [the appellant] said that the public, the police and the authorities in Kenya did not recognise about [sic] mental health. He referred to the fact that in Australia he had been taken to court four times but he had not been convicted because they had observed his mental illness. He said that if he were in Kenya he would be in prison right now. However, as I put to him, I consider that this is because, as he himself said, the authorities in Kenya do not recognise mental illness: it is not because they discriminate against people who have mental illness. As I put to him, if he were to behave in Kenya in the way he has behaved in Australia and people were to react to this, they would not be reacting because he was mentally ill but because of his behaviour as an individual. I do not accept that it is correct that, as [the appellant’s] representatives submitted, the authorities and members of the community would be treating [the appellant] differently in this context because he was exhibiting symptoms of mental illness. I consider on the basis of the evidence to which they referred that people in Kenya would not see his behaviour as the result or a symptom of mental illness but rather, as [the appellant] himself suggested, as criminal behaviour. I do not accept on the evidence before me that, if [the appellant] returns to Kenya now or in the reasonably foreseeable future, there is a real chance that he will be singled out or treated differently from other people who behave in the way in which he may behave (if he does not remain compliant with his medication or if he is unable to obtain his medication) for reasons of his membership of the particular social group of mentally ill persons in Kenya or for any one of the other reasons referred to in paragraph 5J(1)(a) of the Migration Act.

(d)    the Tribunal made a similar finding in relation to the appellant’s inability to obtain employment by reason of his mental illness – that is, people’s reactions to his behaviour would not be because he is perceived as mentally ill, but would be a reaction to his behaviour without understanding its causes (at [84] of the Decision Record). The Tribunal found that any difficulty the appellant would have in obtaining employment would be “because of the way in which he may behave (without medication) as an individual rather than for reasons of his membership of the particular social group” or for any other Convention reason (a similar finding was made under the rubric of ‘complementary protection’ at [94] of the Decision Record). The Tribunal went on to state at [84] of the Decision Record:

…As Burchett J (with whom O’Loughlin and R D Nicholson JJ agreed) said in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 568: ‘People are persecuted for something perceived about them or attributed to them by their persecutors.’ [Fn: What Burchett J said was quoted with approval by McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 284. While these cases relate to the definition of a refugee under the Refugees Convention, I consider that they remain applicable to the interpretation of paragraph 5J(1)(a) of the Migration Act.] To the extent that, as has been submitted, the authorities and the community more generally in Kenya do not recognise mental illness, it follows in my view that their treatment of someone like [the appellant] cannot be said to be ‘for reasons of’ his membership of the particular social group of mentally ill persons in Kenya because the authorities and members of the community will not perceive him as mentally ill.

22    In relation to complementary protection, the Tribunal made the following findings:

(a)    the Kenyan Government was not, as required under s 5(1) of the Migration Act, “intentionally inflicting” pain or suffering on mentally ill persons or causing extreme humiliation to them by choosing not to fund mental health services (at [89] of the Decision Record);

(b)    if the appellant were to commit a criminal act in Kenya, then by enforcement of the criminal law which was applicable to everyone in Kenya, the Kenyan authorities would be “enforcing laws which apply to everyone in Kenya in a non-discriminatory way” and he would be “treated just like anyone else who has committed these acts” (at [90] of the Decision Record). The carve out in s 36(2B)(c) of the Migration Act was therefore enlivened;

(c)    the Tribunal accepted that the appellant’s mental health had deteriorated since he arrived in Australia in 2014 but it did not accept, on the evidence before it, that the appellant’s behaviour, even when not taking medication, had been such as to provoke other people to abuse him or mistreat him. The Tribunal did not accept that, if the appellant were to be imprisoned as a result of criminal acts, this would give rise to a real chance of significant harm from other members of the prison population as had been claimed (at [91] of the Decision Record);

(d)    in relation to the claim that persons with mental illness might be locked away or tied up, the Tribunal observed that the evidence suggested that this was “actually the community trying to stop mentally ill people from harming themselves or others” and the requisite intention for the purposes of the definition of “significant harm” was therefore absent. The Tribunal also found that there was no independent evidence before it to support the appellant’s claim that he would be killed because of his mental illness and it did not therefore accept that there was a real risk of the appellant being arbitrarily deprived of his life (at [92] of the Decision Record);

(e)    at [93] of the Decision Record, noting a submission as to the dual motives as to why a person might be locked away or tied up by family or community members, the Tribunal relevantly found:

Even in Australia people suffering from mental illness may be detained against their will because they present a danger to themselves or others and they may be restrained for the same reasons. I do not accept that in the context in which it is mentioned in the article quoted by [the appellant’s] representatives this treatment is intended to inflict pain or suffering or to cause extreme humiliation as required by the definitions of ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ in subsection (5)(1) of the Migration Act. I do not accept on the evidence before me, therefore, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the appellant] being removed from Australia to Kenya, there is a real risk that he will suffer significant harm as defined as a result of his mental illness.

23    The Tribunal found the appellant did not meet the criteria for the grant of a protection visa and affirmed the delegate’s decision.

The Federal Circuit Court

24    The appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision.

25    The primary judge set out the background facts and summarised the Decision Record at [4]-[23] of the Reasons. The primary judge then considered each of the grounds raised by the appellant.

26    The appellant’s first ground was that the Tribunal erred by failing to consider whether any law that led the appellant to be detained by the police or authorities as a result of actions caused by his mental illness was “appropriate and adapted”, such that it did not amount to discrimination qualifying as persecution for the purposes of s 36(2)(a) of the Migration Act. The appellant’s submissions, as summarised by the primary judge, were that: the Tribunal failed to ask the centrally important question, namely whether a Kenyan law that treats the behaviour of a mentally ill person “as criminal behaviour” is a law that is “appropriate and adapted to achieving some legitimate object of the country [concerned]” (Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 (Applicant S) at [43], citing Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 (Applicant A) at 258); the Tribunal’s analysis failed to have regard to the fact that a law of general application may differentially impact someone because of a protected characteristic and that, by doing so, the punishment meted out to that person can amount to persecution for a reason referred to in s 5J(1)(a) of the Migration Act.

27    The primary judge rejected this ground for the following reasons:

27.    The Court finds that there was no express or implied claim of the Applicant before the Tribunal that mentally ill persons were subject to particular laws or policies that were discriminatory, in the sense of persecutory, which as submitted by the First Respondent, would have required the Tribunal to make a finding as to whether such a law or policy was a law of general application, which might have included the enforcement of generally applicable criminal law or the enforcement of laws designed to protect the general welfare of the State.

28.    The Court agrees with the submission of the First Respondent that, in these circumstances, it was not necessary for the Tribunal to engage in the inquiry as to whether the unidentified Kenyan law or policy was appropriate to some legitimate object of Kenya. That inquiry was only relevant once the Tribunal concluded that the law or policy in question was found to positively result in discriminatory treatment against the Applicant for a reason specified by the Convention [Fn: Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 635, [72]-[77]].

28    The appellant’s second ground was that the Tribunal erred by focussing, not on the impact of the conduct being persecutory, but on the intent represented by the label (or lack thereof) given by the alleged persecutors; that is, the Tribunal erred by asking the wrong question, which question was concerned with the subjective motivations of the future persecutor of the appellant. In support of this ground, the appellant submitted that: his claim to persecution based on returning to Kenya with a serious mental illness was rejected by the Tribunal because it considered that whatever harm befell him would be motivated by ignorance of, and not animus for, the effects of mental illness on behaviour; such analysis is erroneous at law since it focuses on the wrong question, namely what ‘label’ does the persecutor give the victim’s behaviour; the question the Tribunal should have asked was whether the harm was for reasons of the victim’s Convention-protected attribute, regardless of the label given by the persecutor; the Tribunal engaged in an erroneous assessment by requiring a particular form of motivation to be attributed to the persecutors in order to engage Australia’s protection obligations.

29    The primary judge rejected this ground for the following reasons:

32.    This ground cannot be made out. The Court is satisfied that the Tribunal asked itself the correct question which was whether the threat of harm was directed against the Applicant for reason of his membership of the group. As set out in paragraphs 83 and 84 of the Decision Record, the Tribunal concluded to the contrary for the reasons that it gave. The findings made by the Tribunal in paragraphs 83 and 84 of the Decision Record were findings open to the Tribunal on the evidence before it.

33.    As submitted by the First Respondent, it was entirely appropriate for the Tribunal to assess the actual motive, be it animus or otherwise, and the perceptions of the alleged persecutors in order to assess whether or not the asserted persecution against a visa Applicant was for reason of a Convention nexus [Fn: MZZXF v Minister for Immigration and Border Protection [2015] FCA 158 at [56]].

30    The appellant’s third ground of review was that the Tribunal erred by failing to evaluate an integer of the appellant’s claims for protection under s 36(2)(a) of the Migration Act, namely that there was a real chance of “serious harm” in the form of being tied up because of his schizophrenia “to preserve the reputation of [his] family and community”. The appellant’s submissions in relation to this ground were as follows:

(a)    Under the heading dealing with the assessment of the appellant’s claims to protection under s 36(2)(aa) of the Migration Act, the Tribunal noted a claim concerning “locking someone away or tying someone up because it was the only known way to deal with mental illness” in Kenya.

(b)    This claim was rejected by the Tribunal for the purposes of s 36(2)(aa) on the basis that the Tribunal did not accept that such mistreatment would be intended to inflict pain or suffering or to cause extreme humiliation. The analysis relied on the reasoning of the Full Court in SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556 (later affirmed by the High Court in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362).

(c)    Importantly, the claim was not rejected at a factual level, but on the basis that such actions would not be done with an intention to harm.

(d)    There is no relevant “intention” requirement in respect of the criteria under s 36(2)(a), which concerns refugee, not complementary, protection. That is, the analysis of these claims under the complementary protection criteria could not extend to explaining why the same claim did not get any consideration under the refugee criteria, nor why it did not justify a grant of protection.

(e)    The Tribunal did not evaluate this integer of the appellant’s protection claims against the criteria in s 36(2)(a). Its analysis in relation to s 36(2)(a) focused only on mistreatment by the authorities or refusal of employment because of the appellant’s mental illness.

31    The primary judge rejected this ground for the following reasons:

37.    This ground cannot succeed. The claim made by the Applicant in this context was clearly made under the rubric of complementary protection. It was not made under the rubric of the Convention. Contrary to that which is submitted by the Applicant, it is clear that the Tribunal rejected the alternative “preservation of reputation of the family and community” motivation as not being made out on the material advanced by the Applicant at paragraph 93 of the Decision Record. Paragraph 93 is, relevantly, as follows:-

“In their post-hearing submission [the Applicant’s] representatives submitted that locking someone away or tying someone up because it was the only known way to deal with mental illness did nor [sic] negate the fact that this act also intentionally caused pain and suffering. They also submitted that family and community members should be regarded as desiring to lock the offending person away to preserve the reputation of the family and community. They submitted that ‘the pain and suffering caused by this very brutal pseudo medical treatment is not something that can be considered inadvertent as it is known and intended that this act will lead to pain, suffering and extreme humiliation’. They noted that the High Court had granted special leave to appeal from the decision of the Full Court of the Federal Court in SZTAL v The Minister for Immigration and Border Protection [2016] FCAFC 69 relating to the issue of intention in the context of the complementary protection criterion. However at the time of this decision the Tribunal is bound to apply the law as it was interpreted by the Full Court of the Federal Court. Even in Australia people suffering from mental illness may be detained against their will because they present a danger to themselves or others and they may be restrained for the same reasons. I do not accept that in the context in which it is mentioned in the article quoted by [the Applicant’s] representatives this treatment is intended to inflict pain or suffering or to cause extreme humiliation as required by the definitions of ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ in subsection (5)(1) of the Migration Act. I do not accept on the evidence before me, therefore, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the Applicant] being removed from Australia to Kenya, there is a real risk that he will suffer significant harm as defined as a result of his mental illness.”

38.    As submitted by the First Respondent, nothing, therefore, remained at a factual level for consideration under the rubric of the Convention nor is it apparent in the Applicant’s submissions how a claim made by the Applicant had any requisite Convention nexus which necessitated the Tribunal to consider this particular claim of the Applicant’s under s.36(2)(a) of the Act.

32    Accordingly, the primary judge dismissed the application for review.

The appeal

33    The appellant appeals to this Court from the judgment of the Federal Circuit Court. The appellant’s grounds of appeal are set out at [2] above. Each will be considered in turn.

Ground 1

34    The appellant’s submissions in relation to ground 1 may be summarised as follows:

(a)    The appellant suffers from schizophrenia and psychosis. This condition, if left unmedicated, leads him to voice paranoid delusions. It also causes him to engage in erratic behaviour endangering others.

(b)    As recorded at [62] of the Decision Record, the appellant told the Tribunal that “there was discrimination from the members of the public and the police: they did not recognise about (sic) mental health”. The Tribunal also noted at [62] that the appellant “referred to the fact that in Australia he had been taken to court four times but he had not been convicted because they had observed his mental illness. He said that if he were in Kenya he would be in prison right now”.

(c)    In response to the statement that, if the appellant were in Kenya he would be in prison, the Tribunal stated, at [83], that “this is because … the authorities in Kenya do not recognise mental illness: it is not because they discriminate against people who have mental illness”. The Tribunal considered, on the basis of the evidence referred to by the appellant’s representatives, “that people in Kenya would not see his behaviour as the result or a symptom of mental illness but rather … as criminal behaviour”. On this basis, the Tribunal did not accept that there was a real chance that the appellant would be “singled out or treated differently from other people who behave in the way in which he may behave” for reasons of his membership of the group or for any one of the other reasons referred to in s 5J(1)(a).

(d)    In essence, therefore, the Tribunal considered that the appellant would not be subject to relevant harm because the criminal law of Kenya would punish him equally to another person who engaged in the same conduct.

(e)    This analysis fails to have regard to the fact that a law of general application may differentially impact someone because of a protected characteristic and that, by so doing, the punishment meted out to that person under that law can amount to persecution for reasons of a ground referred to in s 5J(1)(a): see Applicant A at 258; Applicant VEAZ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1033 at [26]; VSAI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1602 (VSAI) at [20]; Erduran v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 150 at [28]. It was necessary to consider whether the Kenyan criminal law would be implemented or enforced in a discriminatory manner: Applicant S at [42]-[43]. The content of the concept of discrimination as it relates to persecution was explained by Gaudron J in Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1 (Ibrahim) at [29]. The Tribunal erred by not considering whether the treatment would be discriminatory in accordance with those principles.

(f)    A criminal law that criminalises and leads to punishment for erratic acts is a law of general application, but it differentially impacts those whose severe mental illness causes them to act erratically. In this case, the Tribunal failed to ask the centrally important question, namely is a Kenyan law that treats the behaviour of a mentally ill person as “criminal behaviour” a law that is appropriate and adapted to achieving some legitimate object of the country concerned?

(g)    The primary judge’s reasons for dismissing this ground ignored both the evidence before, and the reasons of, the Tribunal. The primary judge’s finding at [27] of the Reasons is difficult to square with the express claims of the appellant that on return to Kenya he may be “punished or put in jail because [he] cannot control [his behaviour] and people will not understand that this is because of [his] mental illness” (AB 54); see also the Decision Record at [83].

35    In response to these submissions, the Minister submits that: the appellant mischaracterises the nature of the Tribunal’s findings at [83] and [84]; the Tribunal concluded that the appellant would not be subject to discriminatory treatment for reasons of his membership of the group; rather, he would only come to the potential attention of the Kenyan authorities or the community for reasons of his (potentially criminal) behaviour as an individual for the reasons it identified at [83] and [84]. The Minister submits that the Tribunal expressly rejected the proposition that the Kenyan authorities and community members would treat the appellant differently because of exhibition of symptoms of mental illness – they would perceive criminal behaviour simply as criminal behaviour. The Minister submits that the appellant seeks to conflate the (many different) causative reasons why a person might engage in general criminal behaviour with the actual objects of the criminal law.

36    The Minister submits that: there was no express or implied claim before the Tribunal that mentally ill persons were subject to particular laws or policies that were discriminatory, in the sense of persecutory, in terms or effect, which would have required the Tribunal to make a finding as to whether such a law or policy was a law of general application (see Applicant S at [41]-[49]); the appellant’s submission that such a submission was made is not established; no reference is made in the material cited to a law that operates with the discriminatory effect for which the appellant contends; it is for the visa applicant to present such evidence and to advance such submissions as are considered relevant to the claims being made out (SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145 at [53]).

37    The Minister submits that it was therefore not necessary for the Tribunal to engage in the inquiry as to whether the (unidentified) Kenyan law or policy was appropriate to some legitimate object of Kenya; that inquiry is only relevant once it is concluded that the law or policy in question is found positively to result in discriminatory treatment against a visa claimant for reasons of a Convention attribute (Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610 (WZAPN) at [72]-[77]; ADS15 v Minister for Immigration and Border Protection [2018] FCA 233 at [35]); having found to the contrary at [83]-[84], the Tribunal was not required to ask the question posed by the appellant in his submissions.

38    In my view, in the present case, the appellant did make a claim for protection on the basis of the implementation or enforcement of the criminal laws of Kenya. In particular, I note the following matters:

    In the appellant’s statement accompanying his visa application, he stated (AB 54): “If I cannot get the treatment and support I need in Kenya, then I do not know what I will do or what consequences I will face. I may be punished or put in jail because I cannot control my [behaviour] and people will not understand that this is because of my mental illness”.

    As noted at [32] of the Decision Record, in a submission following the hearing before the delegate, the appellant’s representatives submitted that if the appellant “were not able to access appropriate treatment for his mental health issues he would face a real chance of serious and significant harm from the community and the authorities due to his resulting behaviour”. The Tribunal noted that the representatives “produced evidence that on 16 September 2016 criminal charges against [the appellant] had been adjourned without a conviction being recorded on the basis of an undertaking to be of good behaviour for a year and that he comply with any conditions and directions under the Mental Health Act.”

    As recorded at [62] of the Decision Record, at the hearing before the Tribunal the appellant said that “there was discrimination from the members of the public and the police and the authorities: they did not recognise about mental health”. The Tribunal noted that the appellant “referred to the fact that in Australia he had been taken to court four times but he had not been convicted because they had observed his mental illness. He said that if he were in Kenya he would be in prison right now.”

    As recorded in [69] of the Decision Record, in a post-hearing submission, the appellant’s representatives submitted that “if [the appellant] could not receive adequate medical treatment he would face harm from the authorities and members of the community because of the consequences of his symptoms and related behaviour.”

    As recorded in [71] of the Decision Record, in the post-hearing submission the appellant’s representatives submitted that “any form of treatment or punishment which [the appellant] might face from the authorities because of his behaviour needed to be considered in light of his personal circumstances and should not be regarded simply as the enforcement of a law of general application.”

I note that the above list of submissions and statements is not exhaustive; similar or related submissions or statements were made by the appellant, or his representatives, on other occasions.

39    I consider these submissions and statements to squarely raise a claim based on the implementation or enforcement of the general criminal law of Kenya. The substance of these submissions and statements was that these laws would operate in a discriminatory way with respect to a person with a mental illness (by not recognising or having regard to the impact of mental illness on their behaviour).

40    The High Court has given consideration to the role that laws of general application may play in the context of refugee claims. In Applicant S, Gleeson CJ, Gummow and Kirby JJ referred at [39]-[40] to the decision of the High Court in Minister for Immigration and Multicultural Affairs v Israelian (2001) 206 CLR 323 (Israelian). In that case, in concluding that the applicant was not a member of a particular social group comprised of either or both deserters and draft evaders, McHugh, Gummow and Hayne JJ found that the Tribunal had not committed an error of law and concluded (at [97]) “that there would not be persecution of Mr Israelian if he returned to his country of nationality, only the possible application of a law of general application”. In Applicant S, Gleeson CJ, Gummow and Kirby JJ noted that the Minister submitted that the facts also revealed “a law of general application” and, therefore, that the conclusion in Israelian must follow. Their Honours rejected that proposition at [41]. Their Honours went on to state (at [42]-[45]):

42    Further, what was said in Israelian does not establish a rule that the implementation of laws of general application can never amount to persecution. It could scarcely be so given the history of the Nuremberg Laws against the Jews enacted by Nazi Germany which preceded, and help to explain, the purposes of the Refugees Convention. Rather, the Court majority determined that, on the facts of that case, it had been open to the Tribunal to conclude that the implementation by Armenia of its laws of general application was not capable of resulting in discriminatory treatment. A law of general application is capable of being implemented or enforced in a discriminatory manner.

43     The criteria for the determination of whether a law or policy that results in discriminatory treatment actually amounts to persecution were articulated by McHugh J in Applicant A. His Honour said that the question of whether the discriminatory treatment of persons of a particular race, religion, nationality or political persuasion or who are members of a particular social group constitutes persecution for that reason ultimately depends on whether that treatment is “appropriate and adapted to achieving some legitimate object of the country [concerned]”. These criteria were accepted in the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Chen [Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293]. As a matter of law to be applied in Australia, they are to be taken as settled. This is what underlay the Court’s decision in Israelian. Namely, that enforcement of the law of general application in that particular case was appropriate and adapted to achieving a legitimate national objective.

44    In Applicant A, McHugh J went on to say that a legitimate object will ordinarily be an object the pursuit of which is required in order to protect or promote the general welfare of the State and its citizens. His Honour gave the examples that (i) enforcement of a generally applicable criminal law does not ordinarily constitute persecution; and (ii) nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory. Whilst the implementation of these laws may place additional burdens on the members of a particular race, religion or nationality, or social group, the legitimacy of the objects, and the apparent proportionality of the means employed to achieve those objects, are such that the implementation of these laws is not persecutory.

45    The joint judgment in Chen expanded on these criteria:

“Whether the different treatment of different individuals or groups is appropriate and adapted to achieving some legitimate government object depends on the different treatment involved and, ultimately, whether it offends the standards of civil societies which seek to meet the calls of common humanity. Ordinarily, denial of access to food, shelter, medical treatment and, in the case of children, denial of an opportunity to obtain an education involve such a significant departure from the standards of the civilised world as to constitute persecution. And that is so even if the different treatment involved is undertaken for the purpose of achieving some legitimate national objective. (Emphasis added.)”

That ultimate consideration points to the answer in the present case.

(Footnotes omitted; bold emphasis added.)

41    In the above passage, Gleeson CJ, Gummow and Kirby JJ clearly stated that a law of general application is capable of being implemented or enforced in a discriminatory manner, and that the criteria for determining whether a law or policy that results in discriminatory treatment actually amounts to persecution are those articulated by McHugh J in Applicant A.

42    To similar effect, in VSAI, in the context of a claim based on a risk of being imprisoned for draft evasion pursuant to a law of general application, Crennan J (as a member of this Court) said at [20]:

It is well recognised that a draft evader exposed to laws of general application may nevertheless [be] considered to be a refugee if it can be shown that such a person would suffer disproportionately severe punishment or discriminatory application of the laws of general application for the offence, or if the draft evasion were motivated by or related to a Convention reason, namely religious conviction, political opinion (including conscientious objection) or membership of a particular social group: Applicant S v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 2 (“Applicant S”); see also Mehenni v Minister for Immigration & Multicultural & Indigenous Affairs [1999] FCA 789; 164 ALR 192 at [169] per Lehane J.; Wang v Minister for Immigration & Multicultural Affairs (2000) 105 FCR 548 at [63] and [65] per Merkel J.; Erduran v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 814 at [9] per Gray J.; Applicant VEAZ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1033 at [26] per Gray J.

(Emphasis added.)

43    The concept of discrimination in the context of a claim for protection under the Refugees Convention was explained by Gaudron J in Ibrahim at [24]-[33]. Her Honour stated at [29]:

It is convenient now to turn to the concept of discrimination which, as has been pointed out, is an essential feature of persecution for the purposes of the Convention. Discrimination is not simply the different treatment of individuals or of classes of individuals. There are two distinct aspects to discrimination. The first, which needs no elaboration, is the different treatment of people who are not relevantly different; the second is the treatment of people who are relevantly different in a manner that is not appropriate and adapted to that difference. Treatment of the latter kind is usually, albeit inaccurately, referred to as indirect discrimination. And it is usually identified on the basis of its different impact on different groups within the population.

(Footnotes omitted.)

The judgment of Gaudron J in Ibrahim at [24] was cited by Keane, Nettle and Edelman JJ in BRF038 v Republic of Nauru (2017) 349 ALR 67 at [44] (fn 35). Although Gaudron J was in dissent, the above passage reflects principles discussed in other cases: see, eg, Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 at 478 per Gaudron and McHugh JJ.

44    It is apparent from the foregoing authorities that in certain circumstances the implementation or enforcement of a law of general application may amount to persecution within the meaning of s 5J(1)(a). Where this is alleged, a preliminary question is whether the law results in discriminatory treatment. That may be the case where the law treats people who are relevantly different in a manner that is not appropriate and adapted to that difference: Ibrahim at [29]. If there is discriminatory treatment, the next stage in the inquiry is to consider whether the treatment amounts to persecution. The relevant test is whether the treatment is appropriate and adapted to achieving some legitimate object of the country concerned: Applicant S at [43], citing Applicant A at 258.

45    In the present case, the Tribunal did not approach the matter in the way required by the authorities discussed above. The critical paragraphs of the Tribunal’s decision are [83]-[84]. Two aspects of the Tribunal’s reasoning in these paragraphs should be noted. First, at [83] the Tribunal reasoned that any treatment the appellant would suffer from the authorities would be due to the fact that the authorities did not recognise mental illness and would not, therefore, be because they discriminate against people with mental illness. This reasoning reveals that the Tribunal was proceeding on an erroneous understanding that discriminatory treatment only encompasses differential treatment, and does not encompass a failure to treat people who are relevantly different in a manner that is appropriate and adapted to that difference. Secondly, in paragraphs [83]-[84] the Tribunal focussed almost exclusively on the question of whether the feared treatment by the public, the police and the authorities would be “for reasons of” a Convention ground, namely membership of the particular social group of mentally ill persons in Kenya. The Tribunal reasoned that because the authorities in Kenya do not recognise mental illness, the treatment would not be “for reasons of” a ground referred to in s 5J(1)(a) of the Migration Act. (I note that s 5J(1)(a) uses the same language – “for reasons of” – and refers to the same grounds as the Refugees Convention.)

46    By reasoning in these two ways, the Tribunal did not give proper consideration to whether the Kenyan criminal laws would be implemented or enforced in a discriminatory manner with respect to people with a mental illness. As the passage from Applicant S makes clear, the fact that a law is of general application does not answer the question of whether or not it is discriminatory. In the case of a criminal law of general application, the law may be implemented or enforced in a discriminatory way (in the sense explained by Gaudron J in Ibrahim) if it does not recognise and therefore does not take account of a relevant difference, such as mental illness. Here, rather than asking whether the Kenyan criminal laws would be implemented or enforced in a discriminatory way, the Tribunal in effect assumed that because mental illness was not recognised, the law could not be discriminatory. Thus, the Tribunal did not properly analyse or consider whether or not the feared treatment would constitute discrimination. As indicated in [44] above, this was an essential and preliminary step in determining whether the treatment would constitute persecution for reasons of a ground referred to in s 5J(1)(a).

47    The primary judge relied, and the Minister in his submissions relies, on WZAPN at [72]-[77]. However, I do not consider anything in that passage (of the reasons of French CJ, Kiefel, Bell and Keane JJ) to be inconsistent with the propositions set out above. In WZAPN, French CJ, Kiefel, Bell and Keane JJ set out a passage from the judgment of Gleeson CJ, Gummow and Kirby JJ in Applicant S (namely, part of [43]) and then stated at [77] that the passage from Applicant S made clear that an inquiry into whether a law or policy is “appropriate” to some legitimate object of the country concerned is relevant only once it has been concluded that the law or policy results in discriminatory treatment for a reason specified by the Convention. The thrust of the Minister’s submissions in relation to WZAPN is that it was unnecessary for the Tribunal to inquire into whether Kenyan law was appropriate and adapted to achieving a legitimate object because it had concluded the law was not discriminatory. However, the passage in WZAPN at [77] proceeds on the basis that the question of discriminatory treatment has been analysed properly. In the present case, for the reasons discussed in [45]-[46] above, the Tribunal did not properly analyse or consider whether or not the feared treatment would constitute discrimination. Accordingly, I do not consider WZAPN to assist the Minister’s case or to detract from the analysis set out in [45]-[46] above.

48    For these reasons, in my view, the Tribunal asked itself the wrong question, or failed to ask itself the correct question, or adopted an incorrect test, and thus constructively failed to exercise its jurisdiction. The primary judge erred in not so holding. Accordingly, ground 1 is made out.

49    In light of this conclusion, it is not strictly necessary to consider the appellant’s other grounds. Nevertheless, I will make some observations about these grounds.

Ground 2

50    The appellant’s submissions in relation to ground 2 may be summarised as follows:

(a)    In addition to the conclusions referred to in connection with ground 1, the Tribunal concluded that “people’s reaction to [the appellant’s] behaviour will not be because they perceive him as mentally ill: rather they will be reacting to his behaviour as an individual without understanding its causes” (at [84]). The Tribunal referred to Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 (Ram) at 568 and concluded that, to the extent that the authorities and the community more generally in Kenya do not recognise mental illness, “it follows … that their treatment of someone like [the appellant] cannot be said to be ‘for reasons of’ his membership of the particular social group of mentally ill persons in Kenya because the authorities and members of the community will not perceive him as mentally ill” (at [84]).

(b)    The Tribunal’s reliance on Ram at 568 ignores that that passage has been effectively overruled by the High Court: see Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 (Chen) at [33]; see also [34]-[37]; see also Zitoni v Minister for Immigration and Multicultural Affairs [2000] FCA 621 at [4]-[5].

(c)    The label put on the cause of persecution by the persecutor is not relevant to whether the persecution is “for reasons of” one or more of the five grounds listed in the Refugees Convention. What matters is that the Convention ground leads to the persecution, regardless of what subjectively motivates the persecutor: see Hathaway, JC and Foster, M, The Law of Refugee Status (Cambridge University Press, 2nd ed, 2014) at 367; Goodwin-Gill, G and McAdam, J, The Refugee in International Law (Oxford University Press, 3rd ed, 2007) at 100-102. See also K v Secretary of State for the Home Department [2007] 1 AC 412 at [17]. Put another way, the proper inquiry into the actions of the future persecutor is objective not subjective: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 at [16]-[17], [41].

(d)    In this case, the appellant’s claim to persecution based on returning to Kenya with serious mental illness was rejected by the Tribunal because it considered that whatever harm befell him it would be motivated by ignorance of, not animus for, the effects of mental illness on the appellant’s behaviour. The case law is clear that such an analysis is erroneous at law since it focuses on the wrong question, namely what label will the persecutor subjectively give the victim’s behaviour? The right question to ask was: assessed objectively, would the feared harm be for reasons of the victim’s Convention-protected attribute, regardless of what might be the primary or express or subjective label given by, or attributed to, the persecutor? See Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at [52] per Merkel J, with whom Heerey and Sundberg JJ agreed. By asking the wrong question, the Tribunal fell into error.

51    The Minister submits in response that: the Tribunal did not impose a standard of enmity; the Tribunal’s reliance on Ram clearly conveyed the Tribunal’s proper understanding that persecution must be for a Convention reason and not that there must be a constituent element of enmity or malignity towards a visa applicant by the persecutors in order for persecution to be made out; the correct question was whether the threat of harm was directed against the visa applicant for reasons of membership of the group (see MZZXF v Minister for Immigration and Border Protection [2015] FCA 158 (MZZXF) at [56]). The Minister submits that: the conclusions reached by the Tribunal at [83]-[84] were open to it having regard to the material before it; it is entirely appropriate and orthodox for the Tribunal to assess the actual motive (be it animus or otherwise) and the perceptions of the alleged persecutors in order to assess whether the asserted persecution against a visa applicant is for reasons of a Convention ground (see MZZXF at [56]); the appellant’s case failed at a factual level because he did not establish that he would be persecuted because he was manifesting symptomology of his mental illness.

52    It seems to me that the real issue raised by the appellant’s contentions in relation to this ground concerns the nature of the causal link required by the words “for reasons of” in the Refugees Convention and, equally, s 5J(1)(a) of the Migration Act. As discussed in Hathaway, JC, and Foster, M, The Law of Refugee Status (Cambridge University Press, 2nd ed, 2014) at 367-382, there is an issue whether the Convention ground must be linked to the intention of the persecutor. Broadly, there are three alternative approaches:

(a)    that the Convention ground must be linked to the intention of the persecutor;

(b)    that the Convention ground must be linked to the intention of the persecutor or of the state withholding protection; or

(c)    that it is sufficient for there to be a link between the relevant Convention ground(s) and the applicant’s predicament of being persecuted.

The learned authors do not suggest that these three options are mutually exclusive. They state that, “[a]fter all, in many cases the nexus clause will be straightforwardly satisfied by direct or circumstantial evidence of the persecutor’s intention to harm or of the state’s refusal to protect for a Convention reason” (at 367).

53    While the first and second approaches require the Convention ground to be linked to the intention of the persecutor or the state, it is established by the judgment of the High Court in Chen that it is not necessary to show that the conduct is motivated by enmity or malignity: Chen at [33] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. In the present case, I do not consider that the Tribunal fell into this type of error. The Tribunal did not state or indicate (at [83]-[84] or elsewhere) that it was necessary for conduct to be motivated by enmity or malignity for it to constitute persecution.

54    As indicated above, the appellant submits that Chen effectively overruled the passage in Ram at 568 referred to by the Tribunal. It may be helpful to set out both the sentence from Ram quoted by the Tribunal and the immediately preceding sentence. In Ram, Burchett J (with whom O’Loughlin J and RD Nicholson J agreed) stated at 568:

Persecution involves the infliction of harm, but it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

If and to the extent that the above passage from Ram may be interpreted as requiring that the persecutor possesses enmity or malignity, it is correct to state that it has been overruled by Chen. However, to the extent that the above passage requires the persecutor’s actions to be motivated by something perceived about or attributed to the applicant, that proposition is unaffected by Chen. Further, the predominant approach in the authorities has been to focus on the persecutor’s or the state’s intention as the exclusive method of establishing nexus: see, for example, NAEU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 259 (NAEU) at [14]-[18]. Contrary to the appellant’s submission, I do not consider Zitoni at [4]-[5] to be stating anything that is different from the above. The reference to the “latterly expressed” proposition in [5] is a reference, not to the second sentence in the passage from Ram quoted above, but to the proposition immediately before the quotation that there must be enmity or malignity towards the applicant.

55    Although the weight of authority supports a requirement of intentionality, it seems to me that there is much to commend the third approach. According to the third approach, referred to as the predicament approach, it is sufficient for there to be a link between the relevant Convention ground(s) and the applicant’s predicament of being persecuted. In The Law of Refugee Status, Professors Hathaway and Foster discuss a number of problems with focussing on the persecutor’s intentions as the exclusive method of establishing nexus (at 369-378). They put forward three reasons to adopt the predicament approach to understanding the Convention’s nexus requirement (at 378-379). These reasons are as follows. First, at the level of text, the Convention requirement is not that persecution be linked to a Convention ground, but rather that the condition of “being persecuted” be “for reasons of” a Convention ground. This language invites attention to the predicament of the applicant, rather than to the intention of the persecutor. Secondly, consideration of the object and purpose of the Convention argues strongly against any intention requirement. Thirdly, the intention requirement cannot be reconciled with the Convention’s fundamental concern with socio-political disfranchisement anchored in non-discrimination norms, since the international understanding of non-discrimination law is that discrimination may be established on the basis of intent or effect. Professors Hathaway and Foster therefore take the view that “while evidence of intention, either to harm or to withhold protection, is relevant and sufficient to satisfy the nexus clause, it is not a necessary condition for establishing that the risk of being persecuted is linked to a Convention ground” (at 367). Rather, in the authors’ view, “the nexus requirement is satisfied where the applicant’s predicament – the reason for exposure to her well-founded fear of being persecuted – is linked to a Convention ground” (at 367-368).

56    In NACM of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 550 (NACM), Madgwick J discussed and indicated a preference for the predicament approach. His Honour stated that, on further reflection since an earlier judgment he had written, he considered that “in some cases, although one cannot say that a real and substantial motivation of the persecutor is the claimant’s actual or imputed political opinion, it is enough if the claimant demonstrates that such political opinion is the true cause of his or her predicament, namely unwillingness to return because of the fear of persecution”: at [50]; see also [51]-[67]. However, his Honour considered that it was not open to a single judge to adopt this approach in light of Full Court authority, particularly NAEU.

57    It is not necessary to reach a concluded view on these matters in light of the conclusion I have reached in respect of ground 1. I acknowledge that the predominant approach in the authorities (including Ram) has been to focus on the persecutor’s or the state’s intention as the exclusive method of establishing nexus. However, it seems to me that there is much to commend the predicament approach for the reasons given by Professors Hathaway and Foster and also those discussed by Madgwick J in NACM.

58    In the present case, the Tribunal at [83]-[84] proceeded on the basis that evidence of the persecutor’s intention was a necessary condition for establishing that the feared persecution was “for reasons of” a ground referred to in s 5J(1)(a). If the predicament approach is correct, it would follow that the Tribunal erred by not considering whether the causal nexus could be satisfied on this basis.

Ground 3

59    The appellant’s submissions in relation to this ground may be summarised as follows. The appellant notes that, under the heading dealing with the assessment of the appellant’s claims to protection under s 36(2)(aa) (which is concerned with complementary protection), the Tribunal referred to a protection claim that concerned “locking someone away or tying someone up because it was the only known way to deal with mental illness” in Kenya (see the Decision Record at [93]). The appellant also notes that the claim was rejected by the Tribunal under the criteria in s 36(2)(aa) on the basis that the Tribunal did not accept that such mistreatment would be intended to inflict pain or suffering or cause extreme humiliation as required by the definitions of “torture”, “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” in s 5(1) of the Migration Act. The appellant submits that the Tribunal did not consider, but should have considered, this claim against the refugee criteria in s 36(2)(a), in respect of which there is no relevant intention requirement. The appellant relies on Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 (Dranichnikov) at [24] and [95] for the proposition that to fail to respond to a substantial, clearly articulated argument relying upon established facts may amount to a denial of natural justice; see also Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 at [90].

60    There is no dispute that the Tribunal did not consider this claim under s 36(2)(a) (and only considered it under s 36(2)(aa)). The question, then, is whether a claim in relation to refugee criteria was sufficiently raised by the material or evidence, such that it was incumbent upon the Tribunal to consider it. In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1, the Full Court referred to Dranichnikov and stated that, although not expressly so identified in that case, the constructive failure to exercise jurisdiction may be seen as a failure to carry out the review required by the Migration Act: at [55]. The Full Court noted at [58] that the review process is inquisitorial rather than adversarial, and the Tribunal is required to deal with the case raised by material or evidence before it. However, the Tribunal is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it: at [60].

61    The Minister submits that the claim advanced by the appellant in this context was clearly made under the rubric of complementary protection and not under the rubric of the Convention. He relies on the placement of a paragraph referring to this claim under the heading “Complementary protection” in the post-hearing submission (AB 222). However, this paragraph was making a submission that the behaviour described in the country information regarding the treatment of mentally ill people in Kenya could satisfy the intention element of “cruel or inhuman treatment” and “degrading treatment or punishment”. Thus, it appears that the feared treatment, namely “locking someone away or tying someone up because it is the only known way to deal with mental illness”, arose from the country information rather than it being raised for the first time in the post-hearing submission. In these circumstances, the material raising the claim was not focused upon, or limited to, the complementary protection criterion. Further, as appears from the Decision Record, the appellant’s representatives had earlier (that is, before the pre-hearing submission) quoted from “an article suggesting that in Africa relatives and friends might tie up people suffering from mental illness” (see the Decision Record at [65]). This appears to be a reference to a submission dated 6 October 2016 in which the appellant’s representatives quoted from an April 2016 article headed “The taboo of mental illness in Kenya”. The quotation from the article included the following (AB 94):

… because of stigma from relatives and friends who view the illness as a curse and a bad omen, many societies tie up those suffering from mental illness for years at a time, often leading to deeper psychological trauma.

In the submission dated 6 October 2016, this statement was relied on in support of the appellant’s protection claims generally; it was not limited to a complementary protection claim. Accordingly, I reject the Minister’s submission that the claim advanced by the appellant was made only under the rubric of complementary protection.

62    The Minister submits that the Tribunal clearly rejected the alternative “preservation of reputation” motivation as not being made out on the material advanced by the appellant (at [93]), therefore nothing remained at a factual level for consideration under the rubric of the Convention. However, the Tribunal’s consideration at [93] was focused on the element of intention in the context of the complementary protection criterion. I do not consider this paragraph to contain factual findings that exclude a refugee claim being made out.

63    The Minister also submits that the appellant fails to identify how such a claim had any requisite Convention nexus necessitating the Tribunal to engage in consideration of this claim under s 36(2)(a). However, in my view it was open to the Tribunal to conclude that the actions of the appellant’s relatives and friends, as private actors, could rise to the level of persecution if public actors failed to prevent the harm for discriminatory reasons: see, eg, Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 at [26], [30]-[31].

64    For these reasons, had it been necessary to determine this ground, I would have upheld ground 3.

Conclusion

65    For these reasons, the appeal is to be allowed. I will make orders that the orders of the Federal Circuit Court be set aside and in lieu thereof it be ordered that the decision of the Tribunal be set aside and the matter be remitted to the Tribunal for determination according to law. It was accepted by both parties at the hearing that costs should follow the event. Accordingly, I will order that the Minister pay the appellant’s costs of the proceeding in the Federal Circuit Court and of the appeal.

Associate:

Dated:    11 September 2019