FEDERAL COURT OF AUSTRALIA

SZUAS v Minister for Immigration and Border Protection [2020] FCA 481

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay:

(a)    the first respondent’s costs thrown away by reason of the vacation of the hearing of the appeal on 10 February 2020; and

(b)    the first respondent’s costs of and incidental to the appeal generally,

fixed in the lump sum amount of $12,198.10.

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

REASONS FOR JUDGMENT

ANDERSON J:

Introduction

1    The appellant, a citizen of Pakistan, appeals from a decision of the Federal Circuit Court of Australia (Circuit Court) dismissing the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse the appellant a protection visa.

2    In this Court, the appellant sought to raise four grounds to challenge the Tribunal’s decision that were not advanced in the Circuit Court. The proposed grounds of appeal primarily related to the extent, and manner, of the Tribunal’s consideration of the appellant’s mental health issues, and, in particular, the effect of those issues on the ability of the appellant to articulate his claims before the Tribunal. The appellant also sought to adduce fresh evidence that was not before the Circuit Court.

3    For the reasons expressed below, leave to rely on the proposed grounds of appeal, and leave to adduce fresh evidence, is refused. The appellant has not provided an adequate explanation for why he did not raise these matters with the Circuit Court. In any event, the proposed grounds lack sufficient merit to warrant leave.

4    The appellant’s appeal to this Court is accordingly dismissed.

Background

5    The applicant arrived in Australia on 22 July 2012. He applied for a protection visa on 20 November 2012. His claims were summarised in the reasons of the Circuit Court (SZUAS v Minister for Immigration & Anor [2019] FCCA 1953) at [3] as follows:

a)     The applicant is a 22-year-old Pashtun male from Parachinar, Kurram Agency, Khyber-Pakhtunhkua, Pakistan, and is a practising Shia Muslim.

b)     When he was a student the applicant received several threatening letters “signed by the Taliban warning that if we Shias did not leave Pakistan we would be killed”. The Taliban had road blocks, checking cars randomly, and they usually beheaded any Shias they found.

c)     In July 2011, while travelling from Peshawar to Parachinar, the applicant was detained by the Taliban. The Taliban did not identify the applicant as a Shia because he did not carry with him any identification, and he did not carry any scars on his back because he did not believe in flagellation on Ashura day. This incident scared the applicant, and his parents told him he had to discontinue his studies in Peshawar, and leave Pakistan altogether.

d)     He fears returning to Pakistan because he is recognisably Shia, the Pakistani Sunnis say Shias are infidels, and they have declared Jihad against Shias all over Pakistan.

6    On 6 August 2013, a delegate of the Minister rejected the appellant’s visa application and, on 23 January 2014, the Refugee Review Tribunal (RRT) affirmed the delegate’s decision. However, on 20 August 2015, the Circuit Court, by consent, set aside the RRT’s decision and ordered the Tribunal to reconsider the applicant’s review application according to law.

Tribunal’s decision

7    On 22 February 2016, the Tribunal, upon its reconsideration of the appellant’s review application, determined to affirm the delegate’s decision not to grant the appellant a protection visa.

8    Before both the RRT and the Tribunal, the appellant relied on evidence concerning his mental state as an explanation for the manner in which he gave, and the inconsistencies in, his evidence. Before the RRT, the appellant provided written submissions dated 22 November 2013, including a submission about matters affecting the appellant’s credibility. Before the Tribunal, the appellant provided another written submission dated 24 January 2016, which dealt with certain mental health issues, and also relied on a psychologist’s report dated 17 March 2014, a further written submission dated 6 February 2016, a hospital Transfer Discharge Summary dated 30 November 2015, and letters dated 7 January and 25 January 2016 from Dr Bronwyn Wells (Dr Wells).

9    In its statement of decision and reasons (AAT Reasons), the Tribunal, in summary:

(a)    referred to the evidence before the Tribunal: AAT Reasons at [11]–[21];

(b)    noted that Dr Wells had referred to the appellant’s inability to accurately testify: ibid at [16]–[17];

(c)    accepted that the appellant suffered from depression and associated medical and psychological conditions, but did not accept that he had attempted to commit suicide or that his memory had been catastrophically impaired (as submitted by the appellant): ibid at [24] and [51]–[53];

(d)    took into account that there were a number of inconsistencies in the appellant’s evidence and claims, including about his addresses, the letters he claimed to have received, the incidents with the Taliban and his father’s position in the Jirga: ibid at [25]–[43]. The Tribunal moreover found that the appellant had provided a variety of explanations to the Tribunal for the inconsistencies in his evidence: ibid at [44]–[47];

(e)    considered the appellant’s psychological problems and the fact of his mother’s death: ibid at [49]–[52]; and

(f)    held that it was not satisfied that the medical or psychological reports overcame the problematic nature of the appellant’s evidence: ibid at [54].

10    The following paragraphs of the AAT Reasons summarised the Tribunal’s view as to the veracity of the appellant’s claims to past harm:

CONSIDERATION OF CLAIMS AND EVIDENCE

Does the applicant have a well founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention?

…

[24]    Having considered all of the evidence in relation to the applicant’s claims regarding his experiences in Pakistan, the Tribunal does not accept that the applicant has given a truthful account of these experiences. Although the Tribunal accepts that the applicant is suffering from depression and associated medical and psychological conditions, and his medical practitioner was told that he had a “suicide attempt”, the hospital report provided at the Tribunal’s request after the hearing indicates that he was suffering from suicidal ideas whilst he was at home but he did not attempt self harm or attempt to take his own life. The Tribunal does not accept that this constitutes a “suicide attempt” as reported by the medical practitioner who appears to have relied on the applicant’s account of the incident. The Tribunal also does not accept the submission that the applicant’s memory has been “catastrophically” impaired or affected by his experiences. The Tribunal does not accept that this is consistent with any of the medical or psychological reports provided which, whilst referring to difficulties and depression and post traumatic stress arising from the applicant’s experiences, his uncertain immigration status and the death of his mother, do not indicate that he has “catastrophic” memory recall or an inability to recall very basic facts relating to his claims for protection. The Tribunal is drawn to the conclusion that the applicant has manufactured his claims to have been sought by the Taliban and has attempted to rely on his psychological problems to overcome his inability to provide a reasonably consistent or coherent account of his experiences in Pakistan. …

…

Conclusion on past harm

…

[54]    As the Tribunal has stated above, the applicant has conflated and jumbled his claims regarding to incidents to a significant degree, and the Tribunal has not accepted the explanations for the problematic nature of his evidence. The Tribunal does not accept that the applicant was involved in incidents on the road with the Taliban. The Tribunal also does not accept that the applicant moved around in either Peshawar of Lahore to avoid threats from the Taliban. The Tribunal also does not accept that the applicant’s father held a position of responsibility in the Shia community in Parachinar. The Tribunal does not accept that the applicant’s father held a position of responsibility in the Shia community or that his brother was kidnapped of that the applicant does not know where he is. The Tribunal does not accept that the applicant was ever targeted by the Taliban, and accepts only that the extent of his contact was general letters which were left at the hostel in Parachinar. The Tribunal does not accept that the applicant was targeted by the Tribunal or any other insurgent group at any time. The Tribunal is prepared to accept that the applicant’s mother is deceased and he may know of people who have dies as a result of attacks from the Taliban or other extremist groups, but the Tribunal does not accept that his mother dies shortly before the first hearing of that this affected his ability to give evidence at the first Tribunal hearing. The Tribunal has found his evidence in relation to his mother’s death and the effect that this had upon him to be extremely problematic. The Tribunal is not satisfied that the medical or psychological reports overcome the problematic nature of the applicant’s evidence. As stated above, the Tribunal is not satisfied that the medical practitioners or psychologists have any personal knowledge of the applicant’s experiences in Pakistan, apart from what has been reported to them by the applicant.

Federal Circuit Court’s decision

11    On 19 July 2019, the Circuit Court dismissed the appellant’s application for judicial review of the Tribunal’s Decision: SZUAS v Minister for Immigration & Anor [2019] FCCA 1953.

12    The four grounds of review relied on by the appellant in his amended application in the Circuit Court (disregarding the accompanying particulars) stated as follows:

Ground 1: The Tribunal failed to take into account relevantly, the mental state of the applicant and as such, there was an insufficient logical or evidentiary basis for Tribunal’s adverse credibility finding against the applicant.

…

Ground 2: There was an insufficient logical or evidentiary basis for the finding by the Tribunal that the applicant did not face a real risk of harm if refouled to Pakistan.

…

Ground 3: The Tribunal failed to consider relevantly, whether the applicant can receive medical health services in Pakistan

…

Ground 4: The non-disclosure of information under section 438 of the Migration Act 1858 [sic] (Cth)

13    As explained below, the appellant advances related, but different, grounds for impugning the Tribunal’s decision in this Court. As such, it is strictly unnecessary to detail the Circuit Court’s reasoning for dismissing each of the grounds of review advanced in that Court. However, the first ground of review advanced in the Circuit Court bears some resemblance to the grounds of appeal raised in this Court. It is accordingly convenient to extract part of the Circuit Court’s reasoning in relation to that ground of review:

Did the Tribunal actively consider the medical evidence?

[31]     I do not accept the Tribunal did not actively consider the medical evidence on which the applicant relied. As I have already noted, the Tribunal identified the medical evidence, and the submissions the applicant made on the basis of those submissions. The Tribunal also considered that evidence. That is evident from the Tribunal’s having accepted the applicant suffers from psychological problems and is distressed and worried about his migration outcome. It is also evident from the Tribunal’s referring to the medical and psychological evidence and finding it was not satisfied that the evidence explained what the Tribunal found was the applicant’s inconsistent evidence. Its findings were based on a number of matters. First, the applicant did not raise his psychological difficulties as a reason for poor memory until after the RRT made its decision. Second, the Tribunal considered the medical and psychological evidence itself which it found did not indicate the applicant “has “catastrophic” memory recall or an inability to recall very basic facts relating to his claims for protection”.     That was a finding open to it. The psychologist’s report dated 17 March 2014 referred to the applicant’s having displayed a “relatively good insight into his experiences, as evidenced by his ability to state his past traumatic experiences, current worries and escalating anxiety”. And although the two medical certificates dated 7 and 25 January 2016 expressed the opinions that the applicant would find it “difficult to concentrate in court and answer questions accurately”, and that “the current severity of his depression means that it will affect his ability to accurately testify in court”, they do not say the applicant had catastrophic memory loss. Nor do they express opinions about the applicant’s mental health at the time he had given what the Tribunal found was inconsistent evidence, and how this could have impacted on the applicant’s ability to give accurate evidence.

[32]    At one point of its reasons the Tribunal said that the psychologists had posited that the applicant’s inability to recall basic claims or to provide at least a reasonably consistent account of his experience is due to “traumatic events”. That, however, is not an opinion expressed by any of the reports that referred to the applicant’s mental health. It is reasonable to suppose that the Tribunal here had in mind the journal article on which the applicant’s representative relied in her written submissions dated 24 January 2016 for submitting that the applicant’s inconsistencies as identified by the RRT “can be explained by stress, memory loss and the destructive impact of trauma on memory function” and that, “the inconsistencies in the Applicant’s account are consistent with the Applicant’s claimed position”. In any event, the Tribunal did not accept these opinions because the psychologists “have no direct knowledge of the applicant’s experiences in Pakistan and have relied on the applicant’s account of those experiences”.

Did the Tribunal act irrationally or unreasonably in not accepting the medical evidence?

[33]     This part of the applicant’s claims assumes that the medical reports that were before the Tribunal were reasonably capable of supporting a finding that the inconsistencies in the applicant’s evidence the Tribunal identified, and on which it relied for not accepting the applicant’s claims, is to be explained by the applicant’s mental health, and in particular the mental difficulties caused by the applicant’s claimed loss of his mother. That assumption is incorrect. As I have already noted, the psychologist’s report dated 17 March 2014 referred to the applicant’s having displayed a “relatively good insight into his experiences, as evidenced by his ability to state his past traumatic experiences, current worries and escalating anxiety”. And although the two medical certificates dated 7 and 25 January 2016 expressed the opinions that the applicant would find it “difficult to concentrate in court and answer questions accurately”, and that “the current severity of his depression means that it will affect his ability to accurately testify in court”, they did not express any opinion about whether these conditions of the applicant explained or could explain inconsistencies in the applicant’s account of his past in Pakistan. There is nothing in the reports that could reasonably suggest the applicant brought to the attention of those who prepared the reports that he had given inconsistent accounts of what had occurred to him in Pakistan. For this reason alone, the Tribunal did not act irrationally or unreasonably by relying on the applicant’s inconsistencies as a ground for not accepting his claims about what occurred to him in Pakistan, notwithstanding the reports concerning the applicant’s mental health that were before it.

[34]     Even if the psychological reports and other materials that were before the Tribunal could reasonably be interpreted as conveying the opinion that the applicant’s inconsistent evidence could be explained by the applicant’s mental difficulties, or by his claimed trauma, it was reasonably open to the Tribunal not to accept an opinion to that effect for the reasons it gave, namely, that the reports themselves were based on what the applicant had reported about his past events.

(Citations omitted.)

Appeal to this Court

14    The appellant appealed the Circuit Court’s decision to this Court on 1 August 2019. The three grounds of appeal in the appellant’s notice of appeal mirrored the first three grounds of review advanced in the Circuit Court.

15    The appeal was listed for final hearing on 10 February 2020. However, on 4 and 7 February 2020, I conducted case management hearings and made orders vacating the date of the hearing of the appeal and made procedural orders to ensure that the appeal was ready to proceed on 13 March 2020. The reason for the vacation of the original hearing date was the appellant’s failure to comply with procedural orders of the Court.

16    On 19 February 2020, the appellant filed written submissions, which annexed the following proposed amended grounds of appeal:

The Federal Circuit Court erred in that it failed to determine that the AAT fell into jurisdictional error in that it:

1.    Unreasonably or illogically failed to give weight to, or rejected, expert medical information.

Particulars

(a)     The AAT rejected or gave little weight to expert medical opinion on the basis that the expert did not have knowledge of the events on which the Appellant relied.

(b)     The AAT rejected or gave little weight to expert medical opinion on the basis that it required acceptance of the events on which the Appellant relied, when it did not.

(c)     The AAT rejected or gave little weight to the Transfer/Discharge summary … on the basis that it did not record a suicide “attempt”.

2.    Failed to have regard to the evidence that the appellant was taking anti-depressant medication and the possible effect of it on the appellant’s ability to articulate his claim.

3.    Failed to consider that the appellant’s mental health condition (which was accepted) resulted in a vulnerability, and failed to consider the effect of that vulnerability on the circumstances of his return.

17    Mr Taylor, the appellant’s solicitor, raised a further ground of appeal for the first time at the hearing of the appeal. Each of the three proposed amended grounds of appeal set out in the appellant’s submissions, and the further proposed ground of appeal raised at the hearing, were not raised before the Circuit Court. As a consequence, the appellant requires leave of this Court to rely upon those grounds.

18    The appellant also filed and served two affidavits. The first was an affidavit of the appellant’s solicitor, Mr Taylor, affirmed 6 February 2020 (Taylor affidavit), which annexed a partial transcript of the final Tribunal hearing (as compiled by Mr Taylor). The second affidavit was affirmed by the appellant on 6 February 2020 (appellant’s affidavit) and deposed to:

(a)    the appellant attending a medical appointment with a psychologist, Dr Bronwyn Wells, on 3 December 2015, where Dr Wells gave the appellant a prescription for the appellant’s mental illness;

(b)    the appellant taking this medication at the time of the final hearing on 9 February 2016;

(c)    the medication making the appellant feel very drowsy, that he felt mentally very unwell, and that he was also unable to sleep at the time;

(d)    the fact that, during the Tribunal hearing, the medication and the appellant’s mental health condition affected him such that he became very confused at the hearing; and

(e)    what was said by the appellant at the Tribunal hearing after listening to the audio recording of that hearing.

19    The appellant requires leave pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) (upon application under r 36.57 of the Federal Court Rules 2011 (Rules)) to adduce fresh evidence in the Taylor affidavit and the appellant’s affidavit.

20    The Minister filed and served written submissions on 26 February 2020 together with an affidavit sworn by Kathleen Anne Morris, solicitor for the Minister, on 26 February 2020 (Morris affidavit) in support of the Minister’s application for fixed costs and costs thrown away. The Minister was represented by Mr Kay Hoyle at the hearing.

Relevant principles

Leave to rely upon new grounds upon appeal

21    The principles governing the Court’s discretion to grant leave to allow an appellant to rely upon new grounds not advanced in the court below have been the subject of a number of recent judgments in this Court: see Han v Minister for Home Affairs [2019] FCA 331 at [5]–[18] per Bromwich J; GGD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1463 at [29]–[32] per Thawley J; FBR18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1620 at [10]–[29] per Farrell J; BEP19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 80 (BEP19) at [26]–[28] and [77] per Kerr J and AFE18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 162 at [22]–[39] per Katzmann J. From these decisions, the following general principles should be noted:

(a)    this Court is exercising appellate jurisdiction, not original jurisdiction, and the Court should not ordinarily determine matters that should have been considered and determined at first instance. Thus, the circumstances in which this Court will allow a party to rely on a new argument that the party failed to put to the court below are exceptional;

(b)    the assessment of whether a ground has merit is “impressionistic”;

(c)    the merit of any proposed ground is a relevant factor, but is not determinative; and

(d)    there is a balance between the merits of any proposed ground and other relevant factors, such as the appellant’s conduct and prejudice to the respondent; the weaker the merits of the proposed ground, the greater the need for the other factors to be favourable to the appellant in order to grant leave.

Leave to adduce fresh evidence on appeal

22    This Court’s discretion under s 27 of the FCA Act (upon application under r 36.57 of the Rules) to allow fresh evidence on appeal is a wide one, but one to be exercised in the context of this Court conducting a rehearing, not a hearing de novo: Alliance Craton Explore Pty Ltd v Quasar Resources Pty Ltd [2013] FCAFC 29; 296 ALR 465 at [42] per North, Cowdroy and Katzmann JJ. The nature and merits of the evidence are to be considered: Sami v Minister for Immigration and Citizenship [2013] FCAFC 128; 139 ALD 1 (Sami) at [7] per Jagot, Barker and Perry JJ; MZZUQ v Minister for Immigration and Border Protection [2015] FCA 157; 145 ALD 662 at [24] per Gilmour J. In this regard, the appellant must ordinarily demonstrate that the evidence proposed to be adduced is “of such relevance and weight that its admission would be likely to lead to a different result”: Sami at [7].

Proposed ground 1: Unreasonableness or illogicality in failing to give weight to expert medical information

23    The appellant contends that the Tribunal “unreasonably or illogically” gave no weight to, or rejected, the expert psychological evidence before the Tribunal. The appellant submits that there was no “psychological evidence” that contradicted the appellant’s expert evidence and, as a consequence, it was unreasonable and illogical for the Tribunal, which had no expertise in psychological assessment and treatment, not to accept the expert evidence from Dr Wells that “due to [the appellant’s] poor mental health, it is likely that [the appellant] will find it difficult to concentrate in Court and answer questions correctly”.

24    The appellant also submits that the Tribunal unreasonably and illogically considered the hospital Transfer Discharge Summary in concluding that the document was not evidence that the appellant had made a suicide attempt (on the basis that the document merely recorded that he had been “suffering from suicidal ideas while at home”). The appellant submits that this is an incomplete reading of the document. The appellant accepts that the document does not record a suicide “attempt”, but submits the Tribunal was unreasonable to downplay the incident.

25    The Minister submits that I should refuse leave to rely upon this ground of appeal because it is without merit. The Minister submits that the Tribunal plainly did give intelligible reasons for rejecting the “psychological evidence”. The Minister submits that the Tribunal had the benefit of hearing the appellant and assessing him directly.

Consideration

26    I refuse leave for the appellant to rely upon proposed ground 1 as it lacks sufficient merit.

27    It is apparent from reading [24] and [54] of the AAT Reasons (as extracted above at [10]) that the Tribunal did give consideration to the mental state of the appellant when it considered the credibility of his evidence regarding his experiences in Pakistan. The Tribunal expressly accepted that the appellant was suffering from depression and associated medical and psychological conditions. However, the Tribunal found that the appellant’s memory had not been “catastrophically” impaired or affected by his experiences in Pakistan, and the Tribunal did not accept that the appellant’s impaired memory was consistent with any of the medical or psychological reports provided to the Tribunal. Those reports, although referring to difficulties with depression and post-traumatic stress arising from the appellant’s experiences, his uncertain migration status and the death of his mother, did not indicate that he had an inability to recall very basic facts relating to his claims for protection. It was open to the Tribunal to find that the appellant had manufactured his claims to have been targeted by the Taliban, and that the appellant had attempted to rely on his psychological problems to overcome his inability to provide a reasonable, consistent or coherent account of his experiences in Pakistan.

28    There is nothing illogical in the analysis by the Tribunal of the appellant’s mental health. The finding by the Tribunal that the medical or psychological reports as to the appellant’s mental health did not explain or overcome what the Tribunal described as the problematic nature of his evidence. The Tribunal found that evidence to be conflated and jumbled to a significant degree such that the Tribunal would not accept that the appellant had given a truthful account of his experiences in Pakistan.

Proposed ground 2: Failure to take appellant’s medication into account

29    The appellant next contends that the Tribunal failed to take into account the fact that the appellant was taking anti-depressant medication that, according to the appellant, affected his ability to articulate his claims.

30    The appellant seeks to rely upon fresh evidence that was not in evidence before the Circuit Court, namely the appellant’s affidavit and the Taylor affidavit. The appellant submits that the fresh evidence should be admitted on appeal in circumstances where the appellant contends that the prescription and use of medication was central to, and corroborative of, the appellant’s claims, his ability to articulate those claims, and his credibility before the Tribunal.

31    The Minister submits that the appellant has provided no explanation as to why this claim was not raised in the Circuit Court, other than there was a change of counsel in this Court. The Minister submits that that explanation is insufficient: see BEP19 at [26] (point 5) and [77]. In any event, the Minister highlights that this proposed ground was not raised in the Circuit Court despite Mr Taylor, the appellant’s solicitor, acting for the appellant in both the Circuit Court and this Court. The Minister submits that, had this fresh evidence been relied upon by the appellant before the Tribunal or the Circuit Court, the Minister would have had an opportunity to object to it, test it in cross-examination, and lead further evidence.

Consideration

32    I refuse leave for the appellant to rely on the fresh evidence in the form of the appellant’s affidavit and the Taylor affidavit. The appellant has not demonstrated that reasonable diligence was exercised by him, or his representatives, to procure and present the evidence before the Tribunal or the Circuit Court. Furthermore, I am not satisfied that the fresh evidence is of such relevance, or of such weight, that its admission would be likely to lead to a different result: Sami at [7], quoted in CSF17 v Minister for Home Affairs [2019] FCA 569 at [29] per Kerr J.

33    The AAT Reasons demonstrate that the Tribunal was aware that the appellant had been prescribed anti-depressant medication in order for him to cope with his situation. The Tribunal was aware that the appellant may have had difficulty in giving evidence. However, the Tribunal observed that the inconsistencies in the applicant’s claims arose over an extended period of time, well beyond the matters discussed with the appellant during the hearing.

34    The Tribunal took into account all of the matters before it and concluded that, notwithstanding those matters, including that the appellant was on anti-depressant medication, the Tribunal was not satisfied that the appellant’s mental state, including the difficulties he had in giving evidence, overcame the serious and substantial inconsistencies in the claims advanced by the appellant.

Proposed ground 3: Failure to consider that the appellant’s mental health condition resulted in a vulnerability

35    The appellant further contends that the Tribunal failed to consider the special vulnerability which the appellant suffered by reason of his mental health issues, and the effect of that vulnerability if he returned to Pakistan. The appellant submits that, although the Tribunal noted the unstable environment into which the appellant was to be returned, it did not consider that the appellant’s particular vulnerabilities would render lesser forms of harm to be particularly “serious” for him. In particular, the appellant argues that persons with mental health issues might be the subject of social stigma which may be a critical factor in assessing whether the appellant was at risk of serious harm.

36    The Minister again highlights that this proposed ground of appeal was not before the Circuit Court and, as a consequence, the appellant requires leave to rely on this ground. The Minister submits that the appellant has not provided any explanation as to why this ground was not advanced before the Circuit Court, other than having different counsel appear in this Court.

37    In any event, the Minister contends that there are three difficulties with the claim sought to be advanced by the appellant under the third proposed ground:

(a)    first, at no stage before the Tribunal did the appellant suggest that he would be exposed to serious or significant harm by reason of his psychological difficulties. Neither did that claim clearly arise on the available material which focused on a range of other risks to which the appellant was exposed;

(b)    second, and relatedly, to the extent that the appellant did raise his psychological difficulties, they were advanced to provide an explanation for his numerous credibility problems, and not to suggest that he would be exposed to harm in Pakistan by reason of his mental state; and

(c)    third, to the extent that the appellant relies on AGA16 v Minister for Immigration and Border Protection [2018] FCA 628 at [35] per Moshinsky J, that decision is not authority for the proposition that any consideration of vulnerability must be undertaken without reference to the appellant’s actual claims or the particular facts.

Consideration

38    I refuse leave for the appellant to rely upon proposed ground 3 as it lacks sufficient merit.

39    The Tribunal found that the appellant had manufactured his claims to have been targeted by the Taliban and that the appellant had attempted to rely on his psychological and mental problems to overcome his inability to provide a reasonable, consistent or coherent account of his experiences in Pakistan. To the extent that the appellant seeks to rely upon vulnerabilities arising out of his psychological and mental health, those matters were taken into account by the Tribunal in considering whether the appellant faced a risk of serious harm. The Tribunal found that the appellant conflated and jumbled his claims regarding incidents to a significant degree such that the Tribunal would not accept that the appellant had given a truthful account of his experiences in Pakistan.

Further proposed ground: Consideration of timing of appellant’s mother’s death

40    At the hearing of the appeal, Mr Taylor, the appellant’s solicitor, sought to raise an additional ground of appeal, which related to a sequence of questioning at the hearing before the Tribunal in relation to the death of the appellant’s mother. However, as this further ground of appeal was only raised by Mr Taylor orally at the hearing, and I have otherwise refused leave for the appellant to rely on the Taylor affidavit (upon which this ground relied), I refuse leave to rely on this further ground.

Conclusion

41    For the reasons expressed above, the appeal is dismissed. The appellant will pay the Minister’s costs thrown away by reason of the vacation of the hearing of the appeal on 10 February 2020, and the Minister’s costs of and incidental to the appeal generally, collectively fixed in the lump sum amount of $12,198.10.

Associate:    

Dated:        16 April 2020