Federal Court of Australia

BTI19 v Minister for Home Affairs [2021] FCA 1435

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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 appeals from the judgment of the Federal Circuit Court in BTI19 v Minister for Home Affairs [2021] FCCA 1450 (Primary Judgment). The primary judge dismissed an application for judicial review of a decision made by the second respondent, the Immigration Assessment Authority (Authority) on 2 April 2019. The Authority affirmed an earlier decision of a delegate of the first respondent (Minister) to refuse to grant the appellant a safe haven enterprise visa (subclass 790) (Visa). The Authority was not satisfied that Australia had protection obligations with respect to the appellant under either ss 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (Act).

PRIMARY JUDGMENT AND GROUNDS OF APPEAL

2    The background facts are as set out in the appellant’s submissions at 1.1 to 1.19 and the Primary Judgment at [7]. That factual and procedural background was not in dispute between the parties.

3    The appellant raises two grounds of appeal, these are as follows:

(1)    Ground 1 – The primary judge erred by failing to find that the failure of the Authority to refrain from making its decision until it had mental health records was legally unreasonable; and

(2)    Ground 2 – The primary judge erred by failing to find that the Authority artificially constrained its review by failing to consider evidence of the appellant’s lack of support in Sri Lanka placing him at serious risk of harm.

appellant’s submissions

4    In respect of Ground 1, the appellant submits that the Authority unreasonably failed to wait for the provision of mental health records from the International Health & Medical Services (IHMS). In a written submission dated 16 March 2019, the appellant’s representative informed the Authority that she was in the process of obtaining recent detention health records from IHMS in relation to the appellant’s mental health. The representative requested that no decision be made by the Authority until the records were available, or until the Authority exercised its discretion under s 473DC of the Act to obtain the medical records itself.

5    Approximately two weeks after the request from the appellant’s representative and without any response to the representative’s request, the Authority published its reasons for decision on 2 April 2019. The appellant submits that the Authority proceeded to publish its reasons for decision “without waiting for an indefinite period for this information to be provided and … decided not to get new information … under s 473DC of the Act”. The appellant submits that the Authority made this decision despite the appellant first arriving in Australia on 24 November 2012, 2,321 days prior to the date that the Authority published its reasons on 2 April 2019.

6    The appellant submits that the Authority’s failure to wait for the IHMS records before making its decision was legally unreasonable.

7    The appellant submits that against the backdrop of multiple suicide attempts and a claim that the appellant’s mental health had worsened after he was taken back into immigration detention in 2017, the IHMS records were critical to the Authority’s task. That is particularly so, in the appellant’s submission, given that the appellant expressly claimed to engage Australia’s protection obligations on the basis of the detention that he was likely to encounter upon being returned to Sri Lanka. In such circumstances, the appellant submits that records about the state of his mental health while he was previously detained would have allowed the Authority to properly evaluate the appellant’s claim to fear serious mental harm if detained in Sri Lanka. In this context, the appellant submits that the medical records were a crucial piece of information that would allow the Authority to properly evaluate the effect of incarceration on the appellant’s mental state.

8    The appellant submits that the Authority was charged with the task of predicting whether the appellant’s fear that he would suffer mental harm if detained upon return was a well-founded one. In such circumstances, the appellant submits, having regard to records that provide an account of the appellant’s mental state whilst detained was a core aspect of lawful formulation of a state of satisfaction.

9    The appellant submits that it was not legally reasonable for the Authority to refuse to wait for the IHMS records simply because the appellant’s pro bono representative had not provided a precise date on which the records would be sent to it. The appellant submits that the Authority was not being asked to wait “for an indefinite period” but rather, only as long as it took for the IHMS to produce the medical records.

10    The appellant submits that even if the delay was a reason not to wait for the production of the records, there were other mechanisms available to the Authority which it unreasonably failed to pursue. This includes the Authority obtaining the records itself under s 473DC of the Act, or interviewing the appellant. Such a course, in the appellant’s submission, was an “obvious inquiry about a critical fact, the existence of which is easily ascertained”: Minister for Immigration and Citizenship v SZIAI [2009] HCA 37; (2009) 83 ALJR 1123 at [25].

11    The appellant submits that in so far as the Primary Judgment at [29] observed that there was no evidence that the IHMS records were “likely to contain materially different information to that which the [Authority] relied”, that observation proceeded on a false assumption that IHMS records were only relevant to was the appellant’s mental health generally. The appellant submits that the IHMS records were sought to provide evidence of the effect of incarceration on the appellant’s mental health. In that way, they were, in the appellant’s submission, materially different to any information before the Authority. The failure to wait for those records to be produced or, in the alternative, to exercise its discretion to obtain the information itself, was legally unreasonable.

12    In respect to Ground 2, the appellant submits that the Authority artificially constrained its review by failing to consider evidence about the appellant’s lack of support in Sri Lanka placing him at risk of serious harm. The appellant submits that by erroneously characterising that argument as “new information” for the purposes of s 473FC of the Act and determining that it did not meet the requirements of s 473DD of the Act, the Authority artificially constrained its review, and thereby fell into jurisdictional error.

13    On 16 March 2019, the appellant’s representative provided a submission to the Authority, which was supported by a further statutory declaration dated 14 March 2019 (materials). In the materials, the appellant continued to argue that he feared harm on the basis of being a Tamil with a mental health condition and that the risk of harm was exacerbated by the absence of accommodation or support in Sri Lanka.

14    The appellant submits that the Authority erroneously characterised the argument regarding absence of accommodation or support as new information. The appellant submits that error was plainly material and the Authority’s rejection of the relevant portion of the materials became intermingled in its assessment of the appellant’s claims to fear serious harm.

15    The appellant submits the Authority artificially constrained its review by refusing to have regard to the relevant portion of the materials, because it considered that it was new information for the purposes of s 473DC and did not meet the requirements of s 473DD of the Act.

minister’s submissions

16    The Minister submits that a decision may be legally unreasonable if it falls outside the scope of the statutory authority conferred on the decision-maker: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 (Stretton) per Allsop CJ with Griffith and Wigney JJ agreeing at [11].

17    The Minister submits that the statutory source of power in this case is Part 7AA of the Act. Part 7AA provides a “limited form of review”: s 473BA. Demonstrating legal unreasonableness, in the Minister’s submission, in the context of Part 7AA carries a “demanding standard”: DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 (DCP16) at [110] per Beach, O’Callaghan and Anastassiou JJ.

18    The Minister submits that the Authority did not act unreasonably by deciding to proceed to make a decision without waiting to receive the IHMS medical records nor by its decision not to exercise its power under s 473DC to seek such further information itself.

19    The Minister submits that the decision not to delay making its decision on review, was set out in the Authority’s reasons at [12]:

In the submission it is stated that the representatives are in the process of obtaining more recent detention health records from the IHMS in relation to the applicant’s mental health as his vulnerability and mental health are a key element in assessing his chance of facing serious harm as well as his credibility and it is requested that the IAA delay making a decision until this information is provided. However, substantial evidence of his mental health problems has been provided which I have taken into account this in making this decision and no period has been specified as to when this further information will be provided. Accordingly, I have proceeded to decision without waiting for an indefinite period for this information to be provided and have decided not to get new information of this nature under s.473DC of the Act.

20    The Minister submits that the reasons provide an intelligible justification for not delaying the review. The Minister submits that the Authority accepted that the appellant suffered from severe mental health issues and further found at [28] that persons diagnosed with his condition “find it hard to change their behaviour or adapt to different situations”.

21    The Minister submits that, having accepted the appellant suffered from severe mental health issues, the question for the Authority was not the severity of the appellant’s health, but whether the appellant would face a well-founded fear of persecution for that reason including whether any asserted persecution involved “systemic and discriminatory conduct” under s 5J(4)(c) of the Act. In the Minister’s submission, nothing about the appellant’s previous conduct in detention could have any bearing on that question.

22    The Minister submits that the request to the Authority to delay making a decision “until more recent information on [the appellant’s] mental health would become available” with no timeframe, no further particulars and with an assertion that the information contained in the records would be “highly relevant” did not suggest that the IHMS records would contain something different to the material on the appellant’s mental health already before the Authority.

23    The Minister submits that the Authority accepted the appellant suffered from severe mental issues and that it was not, in these circumstances, legally unreasonable for the Authority to have proceeded with the review in the absence of further information that would apparently only have reinforced a claim which the Authority had already accepted.

24    As to the alternate argument under Ground 1, the Minister submits that no jurisdictional error arises in the Authority’s decision not to exercise its discretion under s 473DC of the Act to seek further information. The Minister submits that in exercising the discretion in s 473DC, the “zone of decisional freedom in which the Authority may lawfully determine not to seek “new information” is particularly broad”: BNB17 v Minister for Immigration and Border Protection [2020] FCA 304 at [53].

25    The Minister submits that as part of its review, the Authority sought information under s 473DC of the Act about the sort of care that the appellant could seek in Sri Lanka for his mental health problems and concluded, in its reasons for decision at [31], that there is nothing before it “to indicate that mental health services would be discriminatorily withheld from the applicant for any reason mentioned in s 5J(1)(a) if he required these upon to Sri Lanka”. The Authority, in the Minister’s submission, then went on to find that even if mental health services were unavailable such that the appellant suffered persecution for a reason under s 5J(1)(a) any inability he had to access mental health service would not be the result of “systemic and discriminatory conduct” for the purposes of s 5J(4)(c) of the Act.

26    In the Minister’s submission, however bad the appellant’s mental health situation was, the determinative question was the absence of systemic and discriminatory conduct. In the Minister’s submission, the effect of incarceration on the appellant’s mental health would have no bearing on that question. In the Minister’s submission, the Authority was well aware of and accepted that the appellant might be briefly detained on his return: Authority’s reason for decision at [38].

27    In the Minister’s submission, the Authority’s reason for not seeking information about the appellant’s mental health had an intelligible justification.

28    In the Minister’s submission, the fact that the Authority had exercised its discretion to seek new information about the operation of the mental health system in Sri Lanka, it is apparent that the Authority turned its mind to the relevant issues and engaged in a rational process of considering how to exercise its discretion under s 473DC of the Act.

29    As to Ground 2, the Minister submits that there was no appellable error in the primary judge failing to find that the Authority “artificially constrained its review”. The Minister submits that the primary judge was correct to conclude that there was no substance to this ground because reading the Authority’s reasons for decision as a whole, it is apparent that the Authority did have regard to the submissions contained in the material the subject of this ground.

30    The Minister submits that the Authority did consider at [6] and [7] of the Authority’s reasons for decision that the statutory declaration contained some new information. The Minister submits that the Authority was careful in its reasons for decision in stating that it was the “new information” contained in the statutory declaration, rather than the statutory declaration itself, that it did not consider it met the test required by s 473DD of the Act.

31    In the Minister’s submission, read fairly and as a whole, the Authority’s reasons for decision show that the Authority did consider the submission contained in the statutory declaration referred to by the appellant. This is particularly apparent, in the Minister’s submission, from the use of the word “disbursed” – apparently a misspelling of “dispersed” at [30] of the Authority’s reasons for decision.

32    In the Minister’s submission, the approach of the Authority as evidenced in the reasons for decision disclose no issue of “intermingling” or the need to separate argument from information.

33    In the Minister’s submission, the Authority’s reasons for decision disclose that the Authority understood the claim, considered it and addressed it in the ordinary course of its review. As a consequence, in the Minister’s submission, Ground 2 does not reveal any appellable error in the Primary Judgment.

consideration of ground one

34    It was not legally unreasonable for the Authority not to have delayed its review to receive the IHMS records or to seek to obtain the records itself under s 473DC of the Act for the following reasons.

35    The Authority was conducting a “fast track review” under Part 7AA of the Act where the objective is to provide a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 of the Act. The Authority conducting a fast track review ordinarily does not have hearings, and is required to review decisions on the papers that are provided to it by the applicant. In exceptional circumstances, the Authority may consider new material and may invite referred applicants to provide new information at an interview or in writing.

36    Demonstrating legal unreasonableness in the context of a limited form of review under Part 7AA of the Act carries a “demanding standard”: DCP16 at [110]. The decision of the Authority not to delay making a decision under review was not legally unreasonable in circumstances where the Authority had substantial evidence of the appellant’s mental health problems before it and, in its Reasons at [27], accepted that the appellant suffered from severe mental health issues.

37    The Authority, under the limited form of review provided by Part 7AA, was required to conduct a review which was “efficient” and “quick” and “on the papers” except in exceptional circumstances: ss 473DB and 473FA of the Act. In circumstances where the Authority was not provided with a timeframe as to when the IHMS medical records would be available and where there were no particulars provided as to why the IHMS records would provide anything different from the mental health records which the Authority already had and accepted the Authority’s conduct was not legally unreasonable. I do not accept the appellant’s submission that the IHMS records “went to something altogether different to any material that related simply to the nature of the appellant’s mental health”. The appellant’s legal representatives did not know of the content of the IHMS records. In this regard, the primary judge in the Primary Judgment at [29] was correct to observe that there was no evidence that the IMHS records were “likely to contain materially different information to that upon which the [Authority] relied”. It was not legally unreasonable for the Authority to proceed with the review in the absence of the further information which would apparently only serve to further confirm that the appellant suffered from severe mental health issues.

38    The Authority in its Reasons at [12] provided an intelligible justification for not delaying the review.

39    I accept the Minister’s submission that once the Authority accepted that the appellant suffered from severe mental health issues, the question for the Authority was not the severity of the appellant’s health, but rather whether the appellant would face a well-founded fear of persecution, for that reason, including whether any asserted persecution involved “systemic and discriminatory conduct” under s 5J(4)(c) of the Act.

40    The Authority did not act unreasonably in deciding not to exercise its discretion under s 473DC of the Act to seek the IHMS medical records itself.

41    The power in s 473DC of the Act is conferred on the Authority with the implied condition that it is to be exercised reasonably, in the sense explained in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li): Plaintiff M174 at [21] per Gageler, Keane and Nettle JJ, [86] per Gordon J and [97] per Edelman J; CRY16 v Minister for Immigration and Border Protection at [82]-[83] per Robertson, Murphy and Kerr JJ; Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; 253 FCR 526 (DZU16) at [93] per Robertson, Murphy and Kerr JJ; DPI17 v Minister for Home Affairs [2019] FCAFC 43; 366 ALR 665 (DPI17) at [43] per Griffiths and Steward JJ; BJK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 171 (BJK17) at [41] per Middleton, Bromberg and Snaden JJ.

42    The considerations that inform the standard as to whether or not the exercise of statutory power is legally reasonable have been detailed elsewhere: see, for example, Minister for Immigration and Border Protection v Haq [2019] FCAFC 7; 365 ALR 202 at [37] per Griffiths J, with Gleeson J agreeing and Khalil v Minister for Home Affairs [2019] FCAFC 151; 372 ALR 424; 166 ALD 1 at [34]-[35] per Logan, Steward and Jackson JJ. It is convenient to quote Allsop CJ, Griffiths and Wigney JJ in Stretton at [11], where their Honours expressed that the task of evaluating whether a statutory decision was made within its jurisdictional boundaries of power

is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power.

43    In the context of Part 7AA of the Act, the zone of decisional freedom in which the Authority may lawfully determine not to seek “new information” is particularly broad: DCP16 at [110].

44    The standard of the legal reasonableness applicable to the exercise of statutory power takes it content and boundaries from the text, context, subject matter and purpose of the particular statutory content in which the relevant power has been exercised: DCP16 at [106]. In the present case, the Authority was required to conduct an efficient and quick review: s 473DC(1) of the Act. This operates to make the task in establishing legal unreasonableness more demanding: TTYI67 v Republic of Nauru [2018] HCA 61; 362 ALR 246 at [24] per Gageler, Nettle and Edelman JJ.

45    Although the Authority is empowered to request further information, it is not under a duty to get, request or accept any such information: s 473DC(2) of the Act. The fact that the Authority did not seek for itself the IHMS records was within the zone of decisional freedom in which the Authority may lawfully determine not to seek new information. The Authority’s reasons for not seeking new information under s 473DC of the Act with regard to the appellant’s mental health was, in the circumstances, explained by the Authority at [12] of its Reasons and had an intelligible justification for not doing so.

consideration of ground two

46    I reject the appellant’s second ground that the primary judge erred by failing to find that the Authority “artificially constrained its review” by failing to properly consider the submissions contained in the Appellant’s further statutory declaration.

47    The appellant submitted to the Authority that the evidence about his lack of support in Sri Lanka placed him at serious risk of harm. The Authority did have regard to the submissions of the appellant’s legal representative dated 16 March 2019 and the further statutory declaration of the appellant dated 14 March 2019. The Authority, in its reasons, was careful to distinguish between the new information contained in the statutory declaration and the balance of the statutory declaration which the Authority considered in its reasons. Reading the Authority’s reasons as a whole, the Authority did consider the submissions and the further statutory declaration dated 14 March 2019, in which the Appellant deposed that his lack of support in Sri Lanka placed him at risk of serious harm.

48    I am satisfied that the Authority did consider the submissions contained in the further statutory declaration dated 14 March 2019, which is apparent from a comparison of the further statutory declaration at [37] which stated:

37.    In relation to the Departmental decision:

(a)    I am told that the delegate found that I would not be identifiable by the Karuna group or the army CID if I go back now. He noted that when they visited my brother in law’s house, they did not ask my name, take a photo or asked for any identification. I strongly disagree with this. If I return to my local area, I am certain that I would be easily identified by the authorities through the local community. Everybody knows everybody and it would be very quickly clear who I am and who my relatives are.

(b)    I am also told that the delegate noted that given it has been a long time, and I am no longer a child, the men who came home and hit me would not be able to recognise me. I do not only fear the specific people who hit me when I was a child. All my family has been harassed and tortured by various groups. As I said above, I will be identified through the local community.

(c)    I am also told that the delegate also noted that I provided no evidence that my brother in law had a higher political profile than as a low level grass roots supporter. As I detailed above, in addition to the political activities of my brother in law, my family had been perceived to have LTTE links because of my brother Sukitharaja and targeted by the authorities as a result.

(d)    I am also told that the delegate ground that the fact that my brother in law was able to make an arrangement to pass on his business contract to someone else before departure indicates that we were not in fear of imminent death at the time we left the country. I was only a child and do not know what happened to his business. I do know that we immediately went into hiding and fled the country within about two weeks.

(e)    The delegate found that I would have family support in Batticaloa and would be able to move within Sri Lanka and will not be at risk of harm as a young Tamil male in Sri Lanka. This is wrong. I continue to fear harm on the basis of being Tamil as explained above, and the risk is especially great for me because of my mental health condition. My family is disbursed [sic]. The wider community will deny me support because of my mental illness. I will not be offered any job.

49    The Authority’s Reasons at [30] states:

… I have taken into account that his mother could not support him when he was a child and that he has claimed that his family is dispersed and that it is wrong that he would have family support in Batticaloa. I note, however, from the Shev application that he has five adult siblings who reside in Sri Lanka (with others in England and Qatar) and other than his assertions there is nothing before me to indicate that he could not obtain some assistance from them. The applicant has not provided any information as to why any of his siblings are unable or unwilling to provide any assistance (financial or otherwise) to him. He has not provided any information as to where the ones in Sri Lanka are dispersed to; nor has he provided any information as to their particular financial or personal circumstances.

50    I am satisfied that the Authority did take into account the submissions contained in the further statutory declaration.

51    I reject the appellant’s submission that the Authority “artificially constrained its review” by failing to properly consider the submissions contained in the further statutory declaration. It follows, that the primary judge was correct to conclude that there was no substance to this ground of appeal.

52    For the reasons given, I reject the second ground of appeal.

disposition

53    The appeal will be dismissed.

54    The appellant will pay the first respondent's costs of the appeal on a lump sum basis to be fixed by a Registrar of this Court in the absence of agreement between the parties.

Associate:

Dated:    19 November 2021