Federal Court of Australia

FPT17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 979

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.    The appeal is dismissed.

3.    The appellant must pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

FARRELL J:

Introduction

1    This is an appeal from a decision of a Judge of the Federal Circuit Court of Australia (FCCA): see FPT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2752 (or J).

2    The FCCA Judge dismissed an amended application for judicial review of a decision of the Immigration Assessment Authority (or IAA) made on 16 March 2020. The IAA affirmed a decision of a delegate of the responsible Minister made on 7 June 2016 (delegate’s decision) to refuse to grant the appellant a Temporary Protection (subclass 785) visa.

3    I will, with respect, often refer to the appellant by his pseudonym FPT17.

IAA Decision

4    It is not controversial that FPT17 is a citizen of Sri Lanka, of Tamil ethnicity and born in the Northern Province. He arrived in Australia in October 2012 as an unauthorised maritime arrival. He was a minor at the time of his arrival.

5    In its decision record (or DR), the IAA summarised the procedural history of FPT17’s visa application (DR[1]-[4]) and the information before it (at DR[5]-[31]).

6    At DR[32], the Authority accurately summarised FPT17’s protection claims as follows (as written):

•    According to his arrival interview there were always problems ever since he grew up as the army would take his father away in round ups and beat him. They changed places and schools during the round ups. He was scared that because they always beat his father and that they would also beat him up. He had not been beaten or tortured previously.

•    According to his statement [of claims], the applicant is a Tamil Hindu from [redacted], completed 8 years of education and worked as [redacted] as his father was unable to work due to the torture suffered at the hands of the Sri Lankan army. His father worked as a labourer and now on light duties.

•    They were displaced in 1995 and had to live in the [redacted] area and returned to their area in 2002.

•    The army came and assaulted his father on a regular basis. He believed it was because they were from [redacted] area and suspected of assisting the LTTE as it had been an LTTE controlled area.

•    The army rounded up people, checked their identities and often assaulted them.

•    In June 2010 the applicant witnessed the army assault his father and break his leg. They kicked him and beat him. They kept him for a day and released him that evening, threw him onto the road and a passer-by took him to hospital. His father was threatened if he reported it to police he would be shot.

•    The army continued to come on a regular basis. The family would move after each assault to avoid them for a while for one to two months before returning home. They could not relocate without the permission of the Grama Sevaka who was connected to the army. Due to moving around he was unable to concentrate on his studies.

•    When they returned home the applicant’s father would be subjected to assaults and threats again. His father’s broken leg did not heal properly and he was unable to work where it required heavy lifting.

•    In the following assaults his father was tortured with nails inserted into his fingernails.

•    As he was getting older, his parents feared he would also be subjected to the same assaults and torture, so they told him to leave. He cannot live elsewhere as all his relatives live in [redacted].

•    If he returns he will be frightened he will be treated the same as his father or worse or tortured. His mother has told him the army are aware that he is not living at home and have questioned his parents as to where he is.

•    According to his protection interview the applicant was also assaulted many times by authorities and they were looking for him.

•    According to the new information provided to this IAA, the applicant’s family were freedom fighters, his father was an activist, and the applicant was beaten very badly when he was 13 years old with scars. His father’s friend was killed by the army in 2007 and his cousin was disappeared in 2009 and his aunt had lodged a record of evidence with the Presidential Commission to Investigate Missing Persons.

•    According to the new information he feared harm due to the recent government changes in November 2019. He had mental health issues and could not access treatment or afford it and would face social stigma also.

I note that “LTTE” is a reference to the Liberation Tigers of Tamil Eelam.

7    The summary at DR[32] primarily derives from protection claims made by FPT17 or on his behalf at an entry interview in January 2013, in a statement of claims dated 19 September 2013 attached to FPT17’s application for a protection visa, at the protection interview with the delegate and in written submissions prepared by FPT17’s migration representative (who is also a solicitor) given to the IAA in March 2020 (2020 submissions). The penultimate dot point of DR[32] derives from new claims FPT17 made concerning his experiences in Sri Lanka during consultations with psychologists and psychiatrists (together psychologists) which occurred after the delegate made its decision to refuse FPT17 a protection visa and FPT17 went into immigration detention. The new claims were described in reports prepared by psychologists for the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS reports) and notes made by psychiatrists for International Health and Medical Services (IHMS notes).

8    I note that the STARTTS reports and IHMS notes were attached to the 2020 submissions but FPT17’s new claims were not referred to in the 2020 submissions. The IAA accurately reported the content of the 2020 submissions with respect to FPT17’s mental health condition at DR[16] as follows:

It was also submitted that the applicant suffers from PTSD, anxiety and depression and that he will face significant difficulties in accessing appropriate affordable mental health support and there is societal discrimination against people with mental health issue which impacts on their access to assistance and to subsist and in extreme cases people with mental illness are detained. It was submitted the hospitals focussed on physical diseases and little on mental health and the most suitable care for him was in private health centres which require upfront payments and significant doubts that he or his family could afford ongoing costs of treatment. It was submitted there were long waiting lists for specialist care and overcrowding waiting rooms in which people with communicable diseases are crowded together which present significant issues.

9    At DR[37]-[43], the IAA considered FPT17’s claims under the heading “Applicant’s father’s assaults”.

10    The IAA found as follows at DR[38] (as written):

The applicant however provided no details of his father’s assaults. When asked about them the applicant repeated a standard similar phrase to the effect that in June 2010 his father was assaulted, they broke his leg and threw him on the street. Given the applicant’s claims that he witnessed this particular assault, I find his lack of detail particularly concerning. Further, his account was not spontaneous or descriptive. He also could not provide information about how often, when the assaults occurred, other than in June 2010. When asked about his father’s arrest experience (the same June 2010 incident) and what his father told him, the applicant said he did not ask his father because he did not want to worry him. While he may not have asked his father about this at [the] time due to his injuries and concern, I find it difficult to believe that the applicant would not have more information about his father’s experiences or sought such information some years later, particularly given it formed a key part of his protection claims.

11    At DR[39]-[43], the IAA considered the STARTTS reports and IHMS notes and what FPT17 said to the psychologists reported in them as follows (as written):

39.    I have considered the various psychologists’ reports (STARTTS reports 4 April 2018 – 9 February 2020) which were provided to the IAA. In the psychologists’ reports (26 April 2018 and 5 December 2018), it was noted that the applicant reported to Ms Fernandes (first psychologist) ‘all his family were freedom fighters’ and that between 2002 and 2009 he and his father were taken to the army camp and tortured on multiple occasions. He said he was terribly beaten when he was about 13 years old. He showed scalp and leg scars to the psychologists. He stated that on one occasion his father was abducted from the home and that the applicant was devastated at his father’s condition when he saw him in the hospital. He also stated that his father had disappeared 8 or 9 months previously and that he had not disclosed the information previously because he believed there was high level agreement between the Sri Lankan and Australian governments to share information. He feared disclosure of the LTTE information would endanger his father’s safety, but now that his father had disappeared he felt it easier for him to disclose the information. He was angry and had feelings of revenge against Sri Lankan politicians. He believed the Sri Lankan politicians were responsible for his father’s recent disappearance and troubles in Sri Lanka and would rather commit a serious crime that carries a life sentence than be returned to Sri Lanka. In the December 2018 psychologist report, it was noted that the applicant had asked for amendment of the assault dates he had given (to 2002 – 2010).

40.    In 23 October 2019 report the applicant was not able to recall the exact dates but said he and his father were taken to any army camp sometimes between 2009 and 2012, interrogated, beaten and tortured. He said his father was tortured in front of him several times and he was also severely beaten when he was 13 years old. His father’s involvement in the LTTE resulted in the army investigating and harassing them regularly. The applicant said ‘he won the appeal but lost the case because in the beginning his parents had told him not to say anything about the LTTE’ because they were frightened of the consequences.

41.    The applicant had not made these claims previously and he did not provide a statement of such claims to the IAA. Further, I note in the psychologists’ reports that the applicant’s account of when these claimed events occurred varied from 2002 to 2009, to 2002 to 2010, to 2009 to 2012. Further, there was little detail provided and no information about his father’s claimed disappearance. I place little weight on the reported claims.

42.    I have considered the applicant’s explanations to the psychologists that he had not disclosed the information because he was fearful disclosing the LTTE connection and had been told by his parents not to mention to the LTTE and was concerned about his father’s safety. However, the applicant had been legally represented and had also been informed that his information about his claims would be confidential and not shared with the Sri Lankan authorities. Further, the applicant had stated in his application that he thought the assaults and harassment were because his father was suspected LTTE. I note also November 2017 IHMS notes report that the applicant said his father was an activist against the government. Further, it does not make sense that he would feel safer disclosing it once his father had disappeared. The psychologist indicated the applicant felt this way because he considered his father was deceased. However, as discussed below I do not accept his father has disappeared or his deceased.

43.    Further, if all his family were freedom fighters and his father were LTTE, it is difficult to believe that his father and family would return to the North and avoid detection from authorities. DFAT reports indicate that many thousands of suspected LTTE were rounded up and sent to rehabilitation camps. Further, the authorities had sophisticated intelligence about LTTE persons, and Tamil separatists. If suspected LTTE or activist, it is not credible that the applicant’s father could have returned to live and work in the same place after the war and avoided being sent to rehabilitation camps.

12    The IAA considered other documentary evidence at DR[44]-[54] under the heading “Documents”. Given the anomalies in the documents and the prevalence of fraudulent documentation in Sri Lanka as discussed in the DFAT report, the IAA was not satisfied that the documents or information contained in them was reliable and placed no weight on them.

13    The IAA considered (under the heading “Applicant’s assaults” at DR[55]-[66]) the claim first made at the protection interview that FPT17 had been physically assaulted. The IAA noted that this claim had not been made in FPT17’s visa application or at his entry interview. At DR[62]-[65] the IAA said (as written):

62.    As discussed above I have considered the documents provided in support but for reasons set out above attach no weight to them. I have also considered the description of his assaults and scars as given to the psychologists in their reports above. As discussed his accounts to them varied about when it occurred and there was little detail. Further, I find it difficult to believe that he would not have mentioned such scars to the delegate at the protection interview, particularly given the delegate expressed credibility concerns and the many opportunities to elaborate and explain his lack of assault claims in his application. I accept the applicant may have shown scars to the psychologists. However, it is difficult to believe that he would not have mentioned them to the delegate if in fact they had any significance or related to his claims of harm.

63.    I note the psychologists indicated the applicant had said he had witnessed traumatic events such as bombings and deaths during the conflict. However, he had not claimed this previously. Further, I note his family left the conflict area in 1995 and lived in [redacted] until 2002, when they returned to [redacted]. There was no detail either provided about this.

64.    In assessing the applicant’s credibility, I have considered his mental health. I accept that the STARTTS psychologists have diagnosed the applicant with symptoms of PTSD, anxiety and depression since April 2018 and there is reference to PTSD or Borderline personality disorder in IHMS notes in February 2018. The reports and IHMS notes do not indicate that he had any mental health issues in October 2015 when he was interviewed. The IHMS reports commence in November 2017 after the applicant had been returned to immigration detention and being overwhelmed by fear of deportation, with a history of poor coping mechanism and personality vulnerability. The November 2017 IHMS report also noted he had no previous psychiatric history, though some deliberate self-harm in jail and had recently been referred because he was feeling suicidal and not coping. I am not satisfied that the applicant had mental health condition that impacted upon him when he was interviewed.

65.    However, I am mindful that the applicant was young when he arrived in Australia (nearly [redacted]) and [redacted] when interviewed. I note the applicant was legally represented when making his application and preparing his statement and submissions to the delegate. The delegate spent some time asking the applicant about his experiences and gave him many opportunities to explain why he had not mentioned he had been assaulted previously. It was evident also that the applicant understood and spoke English at the protection interview, although the delegate ensured the interpreter was used. I consider the applicant had a meaningful and plenty of opportunity to provide his evidence and explanations.

14    At DR[67]-[81], under the heading “Other claims”, the IAA relevantly found that:

(a)    Having listened to FPT17’s evidence at the protection interview with the delegate and considered his evidence and explanations, FPT17 was not a credible witness and it was evident that he was making up a new account at the protection interview. The IAA therefore did not accept that FPT17 or any of his family will be considered an enemy of the state or of adverse interest in Sri Lanka: DR[73];

(b)    FPT17’s father may have been questioned and assaulted when subjected to roundups and the like during that conflict. It did not otherwise accept that his father was taken to an army camp and had his leg broken in 2010, that he was suspected of being an activist, LTTE or freedom fighter, that his family as a whole were freedom fighters, that his mother or father was tortured or that they were questioned at any time about his whereabouts. It also did not accept that his father was in hiding or disappeared, wanted or of adverse interest or that FPT17 or any of his family will be considered enemies of the state or of adverse interest. It did not accept that FPT17 had been assaulted, tortured or questioned by the army or authorities or that he was of adverse interest. It found that FPT17 was not a credible witness and that he embellished his claims: DR[72]-[75], [77]; and

(c)    Based on country information, the situation had improved considerably since 2009. The militarisation of the North had reduced after the conflict ended. While the IAA accepted that there are reports of continuing risk of harm for certain persons suspected of LTTE involvement or persons involved in a Tamil unitary state, it did not accept that FPT17 had that profile. It considered the submissions and country information about the change of government in November 2019 (Rajapaksa) and the resultant fears of Tamils but, even considering the recent changes, it did not accept that FPT17 faced a real chance of harm: DR[76], [78]-[81].

15    At DR[82]-[97], under the heading “Mental health”, the IAA considered evidence concerning FPT17’s mental health condition and submissions concerning difficulties FPT17 might face in accessing appropriate and affordable mental health support and services in Sri Lanka and risks he might face due to societal and medical discrimination in Sri Lanka in light of his diagnosed mental health conditions. This is addressed in more detail under the heading “Ground 3(b) of the appeal” below.

16    FPT17’s submissions note that:

(a)    The IAA accepted that FPT17 had been diagnosed with symptoms of PTSD, anxiety and depression since 2018 and has received counselling from STARTTS counsellors and medication: DR[83];

(b)    The IAA did not accept that FPT17 would not seek medical assistance if needed in Sri Lanka, as he had done in Australia, despite societal stigma which attached to people with mental illness in Sri Lanka: DR[86], [91] and [92]; and

(c)    It did not accept that he would be unable to access or afford assistance, services, support and medication for his mental health conditions. Nor did it accept that he needs private health care because care and medication is provided by the Sri Lankan government: DR[87], [91]-[92].

17    At DR[94]-[95], the IAA did not accept that any difficulties FPT17 may face in accessing the health system in Sri Lanka would be for reasons specified in s 5J of the Migration Act 1958 (Cth). It considered submissions concerning lack of awareness by police concerning appropriate treatment of the mentally ill. The IAA found that FPT17 did not face a real chance of detention for his mental illnesses. It also found that he would not require involuntary treatment as he has not had those problems in the past and reports did not indicate that he would require it in the future. The IAA considered information about societal stigma against people with mental health issues and found that it was not satisfied that FPT17 faced a real chance of being detained or any other serious harm for mental health reasons.

18    At DR[98]-[102], the IAA considered the risk faced by FPT17 upon his return to Sri Lanka as a failed asylum seeker. Based on country information and FPT17’s circumstances, the IAA did not accept that he faced a real chance of mistreatment on arrival. At DR[103]-[111], the IAA considered risk faced by FPT17 upon his return to Sri Lanka by reason of his illegal departure from Sri Lanka including the fact that he had been in prison in Australia. The IAA did not accept that any of these matters gave rise to a real chance of torture or other mistreatment or that he would be thereby exposed to systematic discriminatory conduct. It found as follows at DR[112] and [113]:

112.    I have considered cumulatively the applicant’s mental health, social stigma, and effect on his possible detention for illegal departure and as a returnee, but I do not accept the accumulation of those factors or harm amounts to serious harm.

113.    I have had regard to all of the evidence before me including the totality of the personal circumstances of the applicant. I am not satisfied the applicant has a well-founded fear of persecution from anyone for reason or combination of reasons in s.5J(1)(a), now or in the reasonably foreseeable future, if he returns to Sri Lanka.

19    At DR[114], the IAA concluded that FPT17 did not meet the requirements of the definition of refugee in s 5H(1) and does not meet s 36(2)(a) of the Migration Act.

20    At DR[115]-[123], the IAA considered the application of the complementary protection criterion and found, at DR[124], that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Sri Lanka, there is a real risk that FPT17 will suffer significant harm. The IAA therefore found that FPT17 did not meet the criterion in s 36(2)(aa) of the Migration Act.

Background to the Appeal

21    The amended application to the FCCA contained four grounds, but the third ground was not pressed at the hearing before the FCCA Judge: J[53]-[54].

22    The first ground of appeal reflects the first ground of review before the FCCA Judge. Ground 3(a) of appeal reflects ground 4(b) of review. Ground 3(a) of appeal reflects ground 4(d) of the review. The second ground of appeal was not pressed at the hearing of the appeal.

23    Mr Karp appeared for FPT17 and Mr Johnson appeared for the first respondent before the FCCA Judge and on the appeal.

First ground of appeal

24    The first ground of appeal is as follows (as written)

The Court Below should have found, and erred in failing to find, that the second respondent (the IAA) failed to consider issues that clearly arose on the evidence and material before it and on its own findings.

Particulars

(a)    Those issues were whether the symptoms of Post-Traumatic Stress Disorder (PTSD) found to exist by the psychologists who examined the applicant were corroborative of his claims,

(i)    To have witnessed his father being assaulted and beaten, and/or,

(ii)    To have himself assaulted and beaten.

(b)    Error in finding that the IAA addressed the issue stated in Particular (a) above in paragraph 62 of its reasons.

DR[62] is set out at [13] above.

25    In the appellant’s written submissions, Mr Karp summarised the issue raised by the first ground of the appeal as being:

WHETHER, as found by the Court below, the second respondent (the IAA) lawfully considered an issue clearly arising on the material before it and on its own findings, that issue being whether the appellant’s Post Traumatic Stress Disorder (PTSD) and his symptoms thereof were corroborative of his claims to have witnessed his father being assaulted and of his having been assaulted. Alternatively, WHETHER, as contended by the appellant, the IAA did not address that issue, thereby falling into jurisdictional error.

FCCA Judge’s reasons for rejecting the first ground of the amended application

26    The FCCA Judge noted Mr Karp’s submissions in relation to the first ground of the amended application at J[55]-[56] and set out his findings concerning that ground at J[57]-[62] as follows:

55.    In relation to ground 1, Mr Karp submitted that the Authority had failed to make a finding about why the applicant suffered from PTSD and that the applicant’s mental health and suffering of PTSD was a corroborative state of affairs and an issue upon which the Authority was required to make appropriate findings.

56.    Mr Karp in that regard referred to the acceptance by the Authority of the applicant suffering from PTSD. Mr Karp submitted that the PTSD must have had a cause and submitted that the Authority did not consider what that cause would be and that such an issue clearly arose on the material before the Authority. Mr Karp submitted that the Authority made no express mention of the issue and had not considered the same and may have made other, different findings had it done so. Accordingly, Mr Karp submitted that the Authority had not completed its statutory task in the conduct of the review.

57.    The Authority’s reasons are not to be read with a keen eye for error. Further, the reasons must be read as a whole. The Authority in its reasons in paragraph 62 was clearly alive to the significance of the link between the applicant’s claim to assaults and his scars and the claims he was advancing. The Authority observed that it was difficult to believe the applicant would not have mentioned them to the Delegate if, in fact, they had any significance or related to his claims of harm which clearly is a reference to the claims being advanced by the applicant through the psychologists reports that had been provided seeking to link the assaults and scars to his psychological state.

58.    There was no failure by the Authority to consider an issue in respect of the applicant’s PTSD or mental state. It is apparent that the Authority took into account the applicant’s mental state. The Court does not accept that the Authority failed to consider the alleged link between the applicant’s scars and his mental state and the applicant’s claims. The Authority’s reasons as summarised above reflect a genuine intellectual engagement with the applicant’s claims and evidence. The Authority was not required to find that the applicant’s psychological state corroborated his claims. Nor was the Tribunal required to make a finding as to the cause of the PTSD or mental state. The submissions advancing the corroboration of the applicant’s claims based on the PTSD or mental state of the applicant reflect a disagreement with the adverse findings and are in reality an invitation to merits review.

59.    The Court accepts the first respondent’s submission that the Authority was clearly cognisant of the psychologists’ reports, expressly referring to the reports and recording the applicant’s presentation of symptoms. The Court accepts that the Authority gave detailed reasons as to why it was not satisfied about the applicant’s claims of having witnessed and suffered torture and that the Authority considered the description of the applicant’s assaults and scars given to the psychologists and made the finding referred to that it was difficult to believe that the applicant would not have mentioned these things to the Delegate, which he did not, had they any significance to his claims.

60.    The Authority also observed that the applicant’s reports indicated that he told his psychologists that he had witnessed traumatic events such as bombings and death during the conflict which he had not previously claimed. The Court accepts the first respondent’s submission that what the applicant reported to a psychologist about his past experience and having PTSD did not prove those past experiences had occurred.

61.    On the Authority’s reasons, the Authority took into account what the applicant had told his psychologists about his past experiences and gave cogent reasons as to its concerns about the differences about what the applicant told the psychologists and what he had told the Delegate. That was a process reasonably permitted and consistent with the review exercise required under pt 7AA of the Act. There was no failure by the Authority to properly exercise the review jurisdiction as alleged in relation to ground 1.

62.    The Court accepts the submission of the first respondent that the Authority was not further required to speculate about the causes of the applicant’s PTSD. The adverse findings made by the Authority in relation to the applicant’s claims were open for the reasons given by the Authority and dispositive of the whole of the applicant’s claims.

Appellant’s submissions

27    FPR17 relied on the decision of the Full Court (Collier, McKerracher and Colvin JJ) in AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 (AYY17) at [18], [19], and [26]-[28] as emphasised in bold below:

18.    It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act (as discussed, for example, in BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:

•    The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 (Htun) per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.

•    The Tribunal is only required to consider such claims where they are either:

(a)    the subject of substantial clearly articulated argument, relying on established facts; or

(b)    clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE) per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 (AWT15) per Barker J (at [67]).

•    These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:

… A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).

(Emphasis added.)

•    As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):

(a)    such a finding is not to be made lightly (NABE at [68]);

(b)    the fact that a claim might be said to arise from materials is not enough (NABE at [68]);

(c)    to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 (SZUTM) per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:

37    While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.

38    Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.

(d)    while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77 per Flick J (at [21]); and

(e)    understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.

19.    In this appeal, the appellant argues that while NABE dealt with circumstances in which claims arising from materials before the Tribunal must be considered, the Tribunal must also consider issues which arise from its own findings, which it has already made. There is a special need for this consideration because such findings may not be known to an applicant. Nor may they be predictable during the course of the IAA review and may raise further questions about whether a visa applicant has a well-founded fear of persecution.

…

26.    We can accept the appellant’s contention that the NABE principle in relation to claims or issues clearly arising from materials before the Tribunal or IAA would extend to materials which are actually the Tribunal or IAA’s own findings. An unarticulated claim might “clearly emerge” before a decision-maker, having regard to his or her own findings and the material before the decision-maker upon which those findings are reached. This proposition was also accepted by Bromberg J in ACE15 v Minister for Immigration and Border Protection [2017] FCA 1054 (at [27]) where his Honour said:

While I respectfully agree that a Tribunal’s obligation to determine a claim extends only to those claims which arise squarely from the materials before the Tribunal, and would also agree that those materials ought to include the Tribunal’s own findings of fact, I consider that the debate misses the point in this case.

27.    The appellant also contends that the Minister has failed to distinguish between a “claim” and an “issue”. The point being made is that a “claim” is an assertion of fact made by an applicant (for example, see Htun (at [42])) or one which arises clearly on the evidence before the decision-maker: NABE (at [63]). An issue, on the other hand, is a topic or question to be resolved in determining whether a person meets criteria for a particular visa. In the context of Pt 7 reviews see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ (at [47]) and SZDFZ v Minister for Immigration and Citizenship (2008) 168 FCR 1 per Flick J (at [22]-[27]).

28.    While the appellant says the difference between a claim and an issue is a great deal more than semantic, the Minister submits that on a proper understanding of authorities, it is a difference without a distinction. While it is unnecessary to express a view on this topic for present purposes, we accept that consideration of an issue may well be a different matter from consideration of a claim. For example, an issue in this case might be the issue which the appellant contends the IAA failed to address [whether AYY17 would be at risk if he returned to Afghanistan on the basis that he would have to disclose his work history to prospective employers who might identify him to the Taliban], whereas the fundamental claim was a fear of persecution from the Taliban for reasons of imputed political opinion. Equally, there are probably other cases where the terms have been used more interchangeably. The distinction, however, on the facts of this case is not of significance because on any view of the matter, the issue which the appellant complains the IAA failed to consider was not an issue expressly raised or squarely arising on the materials before the IAA, including the IAA’s own findings

28    Mr Karp submitted that:

(a)    In the present case, the STARTTS reports and IHMS notes contained several references to the appellant having clinically significant PTSD. One STARTTS counsellor linked his PTSD with his experiences in Sri Lanka, as did an IHMS appointed psychiatrist;

(b)    The IAA took the STARTTS reports and IHMS notes into account only for the purposes of:

(i)    Whether FPT17’s mental illness affected his capacity to give evidence to the delegate: DR[64]; and

(ii)    The difficulties FPT17 would fact in Sri Lanka as a result of his mental health issues: DR[121]-[122];

(c)    The IAA at least implicitly accepted that FPT17 was suffering from PTSD;

(d)    The PTSD must have had a cause. FPT17’s claims included personal experiences of assault and trauma and to have witnessed his father being brutalised. An issue which clearly arose was, therefore, whether there was a causal relationship between the appellant’s claims, his symptoms and the diagnosis of PTSD. The IAA nowhere addressed that issue.

29    Mr Karp submitted that:

(a)    Contrary to the FCCA Judge’s finding, the issue of whether there was a causal relationship between the appellant’s claims, his symptoms and the diagnosis of PTSD was not, as submitted by the Minister, a matter of speculation. While the IAA was not required to make a finding as to the cause of FPT17’s PTSD, it was required to consider his claims in light of the evidence and whether the PTSD corroborated his claims; and

(b)    He disputes the FCCA Judge’s findings that advancing that argument reflects disagreement with adverse findings or constitutes an invitation to merits review;

(c)    The FCCA Judge, at J[57]-[58] and [61], focussed on FPT17 drawing the psychologist’s attention to his physical scars and the IAA’s rejection of a link between those scars and his claims of assault on the basis of FPT17’s credibility. However, that missed the point; and

(d)    What the IAA did not do was consider an issue that clearly emerged from the evidence and the IAA’s finding that FPT17 suffered from PTSD; that issue was whether there was a causal relationship between the appellant’s PTSD and his claims of being assaulted and witnessing his father being assaulted. The IAA therefore erred. The FCCA Judge erred by finding that the IAA had addressed that issue.

30    In reply to submissions made by counsel for the Minister, Mr Karp submitted that:

(a)    The Minister’s submissions concerning the decision in AYY17 take too narrow a view of how an unarticulated claim can be raised. He noted that in AYY17 at [27]-[28] the Full Court differentiated between claims (a question of fact) and issues (a question to be resolved in determining whether a person meets criteria for a visa). He accepted that an issue must be clearly raised on the evidence or the IAA’s findings and submitted that in this case it was raised on both. Mr Karp submitted that the way the Minister put the case sought to avoid the use of the term “issue” which is central to the first ground of the notice of appeal;

(b)    The Minister’s submissions miss the point that the information before the IAA and on the IAA’s finding that FPT17 had PTSD was that FPT17 had been traumatised and a psychiatrist had related that PTSD to what happened to FPT17 in Sri Lanka. He relied on an IHMS note dated 9 March 2019 in which the psychiatrist’s progress note was “Seen previously by myself: Chronic PTSD from trauma witnessed and experienced in his homeland” and the mental state evaluation included “Became appropriately distressed when discussing past trauma from his homeland including witnessing his brother being shot”;

(c)    FPT17 was not diagnosed with mental health conditions before he went into detention possibly because he was not examined for it before February 2018; and

(d)    The issue not addressed by the IAA was whether the PTSD was at least partly caused by what happened to FPT17 in Sri Lanka. The FCCA Judge mistakenly found that the IAA had addressed that issue.

31    I have had regard to the Minister’s written and oral submissions and I address them as necessary in the consideration set out below.

Consideration

32    It is uncontroversial that a body such as the IAA must not only consider and determine the case as articulated by the visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body, including its own findings: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [63] (Black CJ, French and Selway JJ), Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111 at [79] (Kenny, Tracey and Griffiths JJ) and AYY17 at [18] and [26]. I accept that the IAA’s observance of those principles is particularly important because, under s 473DB of the Migration Act, the review must generally be conducted on the papers, without interviewing the visa applicant.

33    Having said that, I accept the Minister’s submission that the claims in this case were not unarticulated and they were clearly considered by the IAA. The claims were that both FPT17 and his father had suffered assault and torture, that he had witnessed traumatic events during the conflict in Sri Lanka and that he may suffer harm in Sri Lanka as a result of his diagnosed mental health conditions if he is returned there. All of FPT17’s claims made at the entry interview, in the statement attached to his visa application, to the delegate and to the psychologists and the way they evolved were identified by the IAA (see DR[17] and [32]).

34    I do not consider that the appellant’s asserted dichotomy between “claims” and “issues” is a useful lens for analysis of the IAA’s review obligations in circumstances where Part 7AA contains no equivalent obligations to those imposed by ss 360 and 425 in relation to reviews conducted by the Administrative Appeals Tribunal under Parts 5 and 7 of the Migration Act. While it is true that the Full Court tentatively acceptance that there may be a difference between claims and issues in AYY17 at [28], that takes this matter no further because the Full Court used the terms “claims” and “interests” interchangeably in their discussion of the decisions in NABE and Htun and the comments at [28] were obiter dicta.

35    I note that, while some of Mr Karp’s written and oral submissions come perilously close to asserting that the IAA had an obligation to make findings concerning the causes of FPT17’s diagnosed PTSD and therefore to speculate on its causes, in fact, he expressly eschewed the existence of that obligation. Rather, I understand the first ground of the application to the FCCA and on the appeal to encompass the following:

(a)    The STARTTS reports and IHMS notes contained several references to FPT17 having clinically significant PTSD. One STARTTS counsellor linked his PTSD with his experiences in Sri Lanka, as did an IHMS appointed psychiatrist’s notes; and

(b)    What the IAA was required to do was consider FPT17’s claims in light of the evidence and therefore whether the diagnosis of PTSD recorded in the STARTTS reports and IHMS notes corroborated his claims.

36    In my view, there was no jurisdictional error in the IAA’s consideration of the appellant’s claims insofar as the STARTTS reports and IHMS notes were relevant to them nor was there appellable error disclosed by the first ground of appeal for the following reasons.

37    First, the 2020 submissions were prepared by FPT17’s migration agent who was also a solicitor. Significantly, those submissions did not:

(a)    Repeat the new claims which FPT17 made to the psychologists referred to at DR[17]; or

(b)    Include a submission that the psychologists’ diagnosis of FPT17 as having symptoms of PTSD corroborated his claims.

Rather, the 2020 submissions asserted that FPT17 had been diagnosed with PTSD, anxiety and depression and that was a basis for him to fear harm in Sri Lanka due to inadequate availability of appropriate and affordable treatment for his mental health conditions and the consequences he might suffer due to stigma attached to mental illness in Sri Lanka in both the medical profession and the wider society.

38    Second, the IHMS notes and STARTTS reports are evidence that FPT17 had been diagnosed as having PTSD, anxiety and depression. The IAA accepted them as such at DR[64] and [83]. The IAA engaged with the content of the STARTTS reports and IHMS notes and the new claims made in them extensively: see DR[16]-[20], [32], [39]-[43], [62]-[65], [82]-[85] and [111].

39    Accordingly, the IAA did not overlook or ignore that evidence. Failure to consider whether evidence is corroborative is not usually characterised as a jurisdictional error. It is, as the Minister pointed out, a rare case in which the failure to consider corroborative evidence results in a finding of failure to exercise jurisdiction. One such case is Minister for Immigration and Citizenship v SZRKT [2013] FCA 317, 212 FCR 99 (Robertson J) where the corroborative evidence was overlooked entirely. But this is not such a case and I do not accept that the IAA failed to consider the possible corroborative value of the STARTTS reports and IHMS notes.

40    Third, I accept the Minister’s submission that the STARTTS reports and IHMS notes indicated that FPT17’s diagnosed symptoms of PTSD, anxiety and depression were consistent with the untested reports that FPT17 made to psychologists. With reference to the language used by a psychologist and a psychiatrist on which Mr Karp relied, even if what FPT17 reported to them about his past experiences was accepted by them as a basis for the diagnosis of PTSD, that is not evidence of the truth of FPT17’s claims made to them and the IAA was not obliged to accept it as such: see Thirukkumar v Minister for Immigration & Multicultural Affairs [2002] FCAFC 268 (Drummond, Cooper and Finkelstein JJ).

41    Fourth, it was not necessary for the IAA to make an express finding concerning the corroborative value of the PTSD diagnosis in relation to the claims FPT17 reported to the psychologists.

42    In my view, on a fair reading of the decision record as a whole, the IAA did consider all of the evidence before it arising from the STARTTS reports and the IHMS notes (including the finding that FPT17 suffered from PTSD) and tested its corroborative value by testing the credibility of all of FPT17’s claims made to the psychologists in light of the evidence before it. The IAA is not obliged to give a line by line refutation of evidence: see Minister for Immigration and Multicultural and Indigenous Affairs v NBDS [2006] FCA 265; (2006) 90 ALD 614 at [21] (Allsop J as the Chief Justice then was). Further, the inference that the IAA failed to consider an issue should not be drawn too readily where the decision record is otherwise comprehensive and the issue raised by the ground is subsumed in findings of greater generality: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [47] (French, Sackville and Hely JJ).

43    The IAA gave detailed reasons as to why it was not satisfied about FPT17’s claims of having witnessed and suffered torture, of having witnessed traumatic events such as bombings and death during the conflict in Sri Lanka as disclosed to the psychologists, and of fearing return to Sri Lanka because of his current mental health condition. See DR[37]-[43] (father’s assaults), DR[55]-[64] (assaults on FPT17) and DR[82]-[97] (mental health). The IAA took into account what FPT17 told the psychologists about his past experiences. The IAA’s reasons for its concerns about the differences in what he told the psychologists compared to what he said in the entry interview, in the submissions accompanying his visa application and what he told the delegate are cogent. I accept the Minister’s submission that that was a process the IAA was permitted and required to undertake in the exercise of its jurisdiction

44    In particular:

(a)    As noted by the FCCA Judge, the IAA considered the description that FPT17 gave to the psychologists of the assaults he claimed to have suffered and his scars which he claimed resulted from those assaults. The IAA found it difficult to believe that FPT17 would not have mentioned those things to the delegate had they had any significance to his claims when the delegate had told him that his credibility was in issue: DR[62]. I accept the Minister’s submission that this is evidence that the IAA explored whether there was a corroborative link between the claims being advanced by FPT17 through the psychologists’ reports and his diagnosed psychological state. That is so because FPT17 had sought to rely on the existence of his scars as corroboration of his claims in his sessions with the psychologists;

(b)    The question which the IAA explored at DR[64] – whether FPT17’s evidence to the delegate was affected by the diagnosed mental illness – was relevant to testing the corroborative value of the STARTTS reports and IHMS notes. That is because if FPT17 suffered from the diagnosed mental illnesses at the time of the protection interview it might explain why FPT17 did not show the scars to the delegate to support the claim that he made for the first time to the delegate that he had been assaulted himself, a claim that the delegate said was in issue. Mr Karp’s submission in reply that there may not have been an occasion for FPT17 to be tested before he was in immigration is not relevant; there was no evidence before the IAA that he suffered from a mental illness until after he had been refused a protection visa; and

(c)    The IAA was also entitled to be concerned that FPT17’s reports to the psychologists that he had witnessed traumatic events such as bombings and deaths during the conflict in Sri Lanka had not been made previously at his entry interview or in relation to his visa application since there was no reason for him not to report those more general experiences if they occurred: DR[63]

45    The first ground of appeal should be rejected.

Ground 3(a) of the appeal

46    Ground 3(a) of the appeal is as follows:

The Court Below should have found, and erred in failing to find, that the IAA’s decision was affected by legal unreasonableness.

Particulars

(a)    It was unreasonable for the IAA to find, at [42] of its reasons, that it did not make sense that the applicant would feel safer disclosing his father’s LTTE connections because he believed that his father was deceased in circumstances where he told the psychologists who examined him that as the information could no longer harm his father he felt safe in disclosing it.

47    Relevantly to ground 3(a) of appeal, in finding that ground 4(b) of the grounds of review was not made out, the FCCA Judge said at J[72]-[73]:

72.    In relation to ground 4(b), Mr Karp submitted that the Authority’s finding in relation to paragraph 42 about it not making sense why the applicant would feel safer about disclosing his LTTE connections after he was deceased was a satisfactory explanation. This again was an invitation to merits review. It was open to the Authority to make the observation made in paragraph 42.

73.    As to it not making sense that the applicant would feel safer disclosing his father’s involvement once his father had disappeared, it was an adverse finding by the Authority to which a reasonable decision-maker could come and, in circumstances where the applicant had been provided the information he was at the time of the interview as identified by the Authority, the rejection of the applicant’s explanation cannot be said to lack an evident and intelligible justification.

48    For convenience, I note that DR[39]-[43] are set out at [11] above.

Appellant’s submissions

49    The appellant noted that “legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence. That is, assessment of whether a decision was beyond power because it was legally unreasonable depends on the application of the relevant principles to the particular factual circumstances of the case”: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [84] (Nettle and Gordon JJ). The appellant also relied on:

(a)    The High Court’s decision Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 651 at [133] and [135] (Crennan and Bell JJ) for the propositions that “the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it” and “[w]hilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision-maker”; and

(b)    The summary of relevant principles set out in Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 at [57]-[65] (Allsop CJ, Griffiths and Wigney JJ).

50    Mr Karp took issue with the IAA’s words “It does not make sense that he would feel safer disclosing it once his father had disappeared” in DR[42]. He submitted that it is the IAA’s reasoning, not FPT17’s, that does not make sense. He says that is because there can be no danger to FPT17’s father arising from disclosure of his LTTE connections if his father is no longer alive. He says that there was no evidence or intelligible justification for the IAA’s finding at DR[42]. He submitted that that erroneous finding contributed to the IAA’s rejection of FPT17’s claims that he had seen his father being beaten and tortured, that he himself had been assaulted, and that his father and his family were “freedom fighters”.

51    In reply, Mr Karp submitted that the reasons given by the IAA for not accepting FPT17’s explanation to the psychologists for why he did not raise the new claims concerning his father earlier must be read cumulatively such that the IAA’s “it did not make sense” reasoning in DR[42] infected the IAA’s findings as a whole on that issue.

52    I have had regard to the Minister’s written and oral submissions and I address them as necessary in the consideration set out below.

Consideration

53    I accept that the language of the last three sentences of DR[42] is infelicitous and jarring, because there is no obvious want of logic in a Tamil from the Northern Province who had grown up during the civil war in Sri Lanka feeling more free to disclose his father’s connections with the LTTE if he had been missing for eight or nine months and that person believed his father to be dead.

54    However, I do not accept that what the IAA said in the last three sentences of DR[42] renders unreasonable, illogical or irrational the IAA’s findings concerning why FPT17 did not raise the claims made to the psychologists set out at DR[39] and [40] earlier than he did. That is for the following reasons:

55    First, it is well-established that an administrative decision-maker’s reasons must not be read with an eye attuned to error.

56    In my view, the language used by the IAA in the last three lines of DR[42] is simply infelicitous. In the context of the reasons given at DR[38]-[43], it is plain that FPT17’s explanation to the psychologist of why he felt free to disclose his father’s connection to the LTTE to the psychologist “did not make sense” to the IAA because the IAA did not accept FPT17’s claims that FPT17’s father had disappeared or that FPT17 believed that he had died. That reasoning is not illogical or unreasonable in the context in which it was made.

57    Second, the reasoning complained of is only one of a number of reasons the IAA gave for not accepting FPT17’s new claims made to the psychologists considered under the heading “Applicant’s father’s assaults” at DR[37]-[43], which include:

(a)    The lack of detail of the events FPT17 did recount to the delegate and to the psychologists: DR[38] and [41];

(b)    FPT17’s failure to recall dates concerning assaults and shifting evidence as to those dates: DR[39]-[41];

(c)    The fact that the new claims made to the psychologists were not made previously or to the IAA. The IAA noted FPT17’s explanations to the psychologists regarding why he had not disclosed the information earlier. These included statements that FPT17’s parents had told him not to mention the LTTE, that he was concerned that there were arrangements between the Australian and Sri Lankan governments for the sharing of information, and that he was fearful for his father’s safety. However, the IAA rejected these explanations, as FPT17, who had been legally represented, had been told that information about his claims was confidential and would not be shared with the Sri Lankan authorities. Further, FPT17 had stated in his application that he thought the reason for assaults on his father was because his father was suspected of being LTTE so that he had already mentioned the LTTE: DR[41]-[42]. As pointed out by Mr Johnson, that reasoning was unchallenged; and

(d)    The IAA found it difficult to believe that the family would return to the North and be able to avoid detection by authorities there if his family were freedom fighters having regard to DFAT reports concerning the roundup of LTTE suspects and the sophistication of Sri Lankan government intelligence: DR[43].

58    Accordingly, the IAA had a number of cogent reasons for not accepting FPT17’s explanation for why it did not raise the new claims earlier in the process. I do not accept that the IAA’s “did not make sense” finding at DR[42] infects those other cogent reasons.

59    I perceive no jurisdictional error on the part of the IAA or appellable error on the part of the FCCA Judge in reaching that conclusion. This ground of appeal is not made out.

Ground 3(b) of the appeal

60    Ground 3(b) of the appeal is as follows:

The Court Below should have found, and erred in failing to find, that the IAA’s decision was affected by legal unreasonableness.

Particulars

…

(b)    It was unreasonable to the IAA to find that;

(i)    The applicant would not be able to access treatment and medication for his mental health condition in circumstances it had been reported that 400,000 people in Sri Lanka suffered serious mental illness and it had been further reported that services were insufficient to cope with widespread post conflict mental disorders. (at reasons [87], [89], [91]).

(ii)    The applicant would not need private (mental) health care.

(iii)    The applicant would seek assistance for his mental health illness in Sri Lanka where there is a social stigma attached to mental illness because he had sought and obtained such assistance in Australia where there was no such stigma (at reasons [86], [91]-[92]).

61    I note that the amendment to ground 3(b)(i) was made at the hearing without objection. As mentioned about, ground 3(b) of appeal reflects ground 4(d) of the review before the FCCA Judge.

Decision record relevant to ground 3(b)

62    Relevantly to ground 3(b) of the appeal, the IAA considered FPT17’s “mental health” claims at DR[82]-[97].

63    At DR[82], the IAA summarised the appellant’s submissions in relation to his mental health as follows (as written):

I have considered the reports about the applicant’s mental health. It was submitted the applicant would face significant difficulties accessing appropriate and affordable mental health support and health services had not recovered since the war and impact of the Tsunami. It was submitted societal discrimination against people with mental health issues impacts on their ability to access assistance and subsist and are detained.

64    At DR[83], the IAA accepted that FPT17 had been diagnosed with symptoms of PTSD, anxiety and depression since 2018 and that he had received counselling from STARTTS counsellors and medication.

65    At DR[84]-[85], the IAA noted what the STARTTS reports had indicated concerning FPT17’s suicide risk and the impact on FPT17 of his ongoing immigration detention. It noted that while he was considered to be at some suicide risk, he did not have suicidal ideation, and it considered that the detention trigger to some of his negative feelings would be removed if he were returned to Sri Lanka. While he had self-harmed in the past in coping with negative emotions, the IAA did not consider that that constituted persecution as it was not an act perpetrated by others or for reasons contemplated by s 5J of the Migration Act. It concluded at DR[86] as follows:

Despite societal stigma, I do not accept the applicant would not seek assistance if needed, as he has done so in Australia. I do not consider having treatment from a different counsellor if he were returned to Sri Lanka amounts to harm.

66    At DR[87]-[96], the IAA said the following in relation to access to services and treatment relating to mental health (emphasis from FPT17’s submissions) (as written):

87.    It was submitted there were significant doubts that the applicant could afford access to treatment that he required. Further, I do not accept the applicant will not be able to access or afford assistance, services, support and medication. I do not accept that the applicant needs private health care. The country information provided (UK Home Office report) indicated that the government provides free drugs and care to patients with mental health problems. While the report indicated that a psychiatrist considered PTSD as a western phenomenon and did not prevail very much in Sri Lanka, the applicant has reports and diagnoses he could rely on if needed upon return. Further, it was noted that 400,000 suffer serious mental illness and that depression varies from 9 to 25%. I note also Sri Lanka’s progress was commended achieving significant improvement in expansion of resources and facilities and was on the right track according to WHO representative (UK border agency).

88.    …

89.    I note also UN Committee (2010) (from UK Home Office) indicated that services were insufficient to cope with the widespread post conflict mental disorders.

90.    I have considered the information about development of mental healthcare in Sri Lanka and lessons learned. It did note that from a survey of children in the north east 92% stated they experienced severely traumatising events during the conflict and 25% of those had symptoms of PTSD. It noted that .7% of household members were receiving treatment of some kind of mental illness, most commonly for depression. It indicated that the new draft mental health care bill had not been enacted and the current ordinance promoted custodial approach. However the mental health policy says the vision is for the community care model and promotes treatment holistically and with multi-disciplinary teams and decentralisation. However, the article gave a positive view of the improvement of mental health services, noting Sri Lanka had achieved quality mental health care outcomes despite limitations in resource allocation. While there was a shortage of psychologists it indicated that there were psychiatrists practising in all districts and there were multidisciplinary mental health care teams which included nurses, counsellors, medical officers and volunteers under the guidance of psychiatrists. It indicated there was a comprehensive community care model and services available to locals at the village level. There were outreach clinics, professional development programmes for doctors, nurses, medical officers and others in the area and there many NGOs involved in mental health. It concluded that Sri Lanka had achieved quality mental health outcomes despite have considerable limitations in resource allocation and mental health services, but would need to be consistently revamped.

91.    DFAT in 2019 noted despite some improvements, mental health services, overall, are considered inadequate, particularly in former conflict areas, and there remain ongoing challenges in accessing mental health care. Mental illness is not widely discussed in Sri Lankan society and carries stigma at the community level. This, in turn, deters victims from revealing and seeking treatment for mental illness. Some families seek traditional methods to “cure” mental illness, including through use of local healers. DFAT assesses that, while there has been some improvement in the availability and quality of mental health services, they remain inadequate overall, particularly in war-affected areas, where demand is greatest. DFAT further assesses that traditional attitudes toward mental illness act as a significant barrier to treatment.

92.    Despite the social stigma, given the applicant has sought treatment and counselling already, I am not satisfied that he would only seek traditional healers or not seek appropriate assistance or treatment, if needed. I note he received counselling in Australia and the applicant has not claimed he would not seek such assistance in Sri Lanka, if needed.

93.    I have considered the articles about waiting times in private hospitals of up to 30 minutes for their appointment and out of pocket expenses for private health care. However, there is no evidence that the applicant would need hospitalisation or to attend a private hospital for an appointment. He has not in Australia and the reports do not indicate he may need such assistance in the future. Nor has he claimed that he would. Further, I note the report on out of pocket expenses indicates that utilisation of public services is more pro-poor in Sri Lanka than in any other emerging market Asian country and that government healthcare in Sri Lanka performs better in equity. In any event, I do not accept that the applicant will need private health care and I note there is free universal health care. I do not accept that he faces a real chance of not being able to access or afford services or assistance needed.

94.    Further, and in any event, any difficulties accessing in the health system would not be for one of the reasons specified in s 5J and not constitute persecution. I do not accept that any lack of access would be for a s5J reason.

95.    The submissions suggested lack of awareness by police saw a mentally ill Tamil cornered in deep water who drowned rather than take him for psychiatric care. However, I do not accept the applicant faces a real chance of such neglect from police or authorities as the applicant’s behaviour and mental health behaviour has not exhibited such issues in the past. His symptoms are depression, low motivation, nightmares and anxiety and self-harm when distressed, not psychosis. Further, I do not accept he faces a real chance of detention for his mental illness or that he would require involuntary treatment as he has not had any such problems in the past and the reports do not indicate that he would require such treatment in the future either.

96.    I have considered the information about societal stigma against people with mental health issues. While the applicant may face some societal stigma, I do not accept that such stigma would amount to serious harm. The applicant is still in contact with his family. It was clear that he has a strong relationship with his family and the reports indicated that his family are a protective factor. Further, he was educated to grade 8 in Sri Lanka and received more education in Australia. He speaks Tamil and now English fluently. While he had difficulty finding employment in Australia, he previously worked in labouring jobs and [redacted] in Sri Lanka. His condition has been managed and he will be out of detention, which has exacerbated his condition. I am not satisfied and do not accept he faces a real chance of denial of basic rights, be unable to subsist or that he faces a real chance of being detained or any other serious harm for mental health reasons.

67    At DR[97], the IAA concluded:

I do not accept that there is a real chance the applicant (even considering his mental health issues), as a young Tamil male from the North, or formerly LTTE controlled area, or being absent from Sri Lanka, or because his father may have been harassed and assaulted during the conflict means the applicant was or will be of any adverse interest to the authorities, or anyone upon return, or that he faces a real chance of serious harm now or in the reasonably foreseeable future.

68    In relation to the issue of complementary protection under s 36(2)(aa) of the Migration Act, the IAA found as follows at DR[121]-[122]:

121.    I have considered the applicant’s mental health. I accept he may require medication and counselling assistance. However, I do not accept that he would be unable to access that. There is universal free health care and free medication available also. While mental health services are scarce, the country information indicates there have been significant improvements in health services. I do not accept that he will be detained. Further, he has sought treatment before and his condition has been well managed and was not severe or requiring hospitalisation. I do not accept the applicant faces a real risk of significant harm. Further, I am not satisfied that any difficulties in relation to medical care access amount to severe pain or suffering, pain or suffering that is cruel or inhuman in nature or extreme humiliation, intentionally inflicted or caused.

122.    In respect of the stigma that the applicant may face as a result of his mental health issues, I do not accept he could not find employment or subsist given his family in Sri Lanka his education, skills and employment history in Sri Lanka and the fact that he will no longer be in detention. I am not satisfied that any stigma he may face from society would amount to significant harm as defined.

FCCA Judge’s findings

69    In finding that ground 4(d) of the grounds of review (to which ground 3(b) of the appeal relates) was not made out, the FCCA Judge said at J[78]-[82]:

78.    In relation to ground 4(d), Mr Karp has submitted that the Authority in finding that the applicant would be able to access treatment and medication for his mental health was legally unreasonable in the context of the country information and that the finding that he would not need private mental health care and did not face serious or significant harm due to social stigma were legally unreasonable.

79.    This again is an invitation to engage in merits review. The Court accepts the first respondent’s submissions that the Authority took into account country information and made findings in this regard that were open to it for the reasons given by the Authority.

80.    In that regard, the Authority had expressly referred to country information indicating that the Sri Lanka government provided free drugs and care to patients with mental health problems at paragraph 87 of its reasons, as well as to information that Sri Lanka had made significant improvements and expanded its resources and facilities. It is also apparent that the Authority took into account an article that gave a positive view of the improvement of the mental health services and that the Sri Lanka had achieved quality mental health outcomes despite resource limitations.

81.    Further, the Authority did not accept that the applicant could not seek mental health assistance as needed as he has done so in Australia.

82.    There was no illogical or irrational finding by the Authority. There was no legal unreasonableness in the adverse findings by the Authority in respect of the applicant’s ability to access assistance in Sri Lanka or as to the applicant being placed in serious or significant harm by reason of social stigma.

Appellant’s submissions

70    In relation to grounds 3(b)(i) and (ii), the appellant submitted that the IAA’s finding at DR[87] that FPT17 would be able to access government supported mental health services flies in the face of the country information that the IAA cited that:

(a)    400,000 people in Sri Lanka suffer from serious mental illness: DR[87];

(b)    Services were insufficient to cope with widespread post conflict mental health disorders: DR[89]; and

(c)    There were severe shortages of mental health services, particularly that referred to in the DFAT information summarised at DR[91]

71    FPT17 submitted that:

(a)    It was not open (and it was therefore unreasonable) for the IAA to find that FPT17 could (rather than might if he was lucky) access public mental health assistance. The shortages of public health services described by the IAA precluded that finding; and

(b)    That raised the question of whether, if FPT17 was unable to access public health care, he could afford private health care. It was not open to the IAA to find that he could afford such treatment in the absence of any information about FPT17’s financial circumstances. In that context, Mr Karp noted how long FPT17 had been in detention.

72    In relation to ground 3(b)(iii), the appellant relied on his written submissions in relation to the findings at DR[86] and [91]-[92] as follows (as written):

38.    The illogicality in the IAA’s finding is in assuming that because the appellant was able to access mental health services in Australia where there is no stigma attached to mental illness, he would seek help for his mental illness in Sri Lanka where there is a stigma. The conclusion does not follow from the premise, and is therefore irrational.

39.    Finally, it is necessary to note that at CB 628 [96] the IAA found that the presence of societal stigma against people with mental health issues would not amount to serious harm, and nor that he would be unable to subsist in Sri Lanka. Those findings must be seen in the context of the previous findings that the appellant would be able to gain access to mental health treatment as required were he to return to Sri Lanka. If those findings are affected by jurisdictional error, and if the appellant is returned to Sri Lanka and cannot access the treatment required, the IAA's conclusion falls away. He may in those circumstances be unable to subsist.

Consideration

73    In what follows, I have largely accepted submissions made by the Minister.

74    In relation to grounds 3(b)(i) and (ii) of the appeal:

(a)    I note that the information set out in DR[87] and [89] (on which the appellant’s submissions set out at [70(a) and (b)] above are based) is derived from a UK Home Office report dated 4 July 2011 “Sri Lanka Country of Origin Information (COI) Report” at [23.19]-[23.21] and [23.24]-[23.26]. That report was published within two years of the end of the civil war (in 2009) and seven years after the tsunami which hit Sri Lanka (in 2004);

(b)    The information set out at DR[90] is derived from an article by Samudra Kathriarachchi, V. Seneviratne and Luckshika Amarakoon entitled “Development of mental health care in Sri Lanka: Lessons learned” dated April-June 2019 published in the Taiwanese Journal of Psychiatry (Vol. 33 Issue 2) which appears at pp 594-603 of the Appeal Book (Journal Article). It traces the development of mental health services in Sri Lanka, noting the expansion of resources and facilities provided not only in hospitals or by psychiatrists but also in the community, including by trained health workers and non-government organisations resulting in quality outcomes despite resource limitations.

(c)    It is fair to say that the Journal Article has a more optimistic view of the availability of mental health services in Sri Lanka than does the “DFAT Country Information Sri Lanka Report Sri Lanka” dated 4 November 2019 at [2.25]-[2.31] on which DR[91] relies. However, as the Minister submitted, while minds might differ about what country information to accept, that is a matter for the fact-finder, not a court on an application for judicial review or on appeal from such a decision.

75    On the information available to the IAA which it considered in detail, it was open to it to form the view that despite difficulties acknowledged in the country information, free medical services and treatment would be available to FPT17 in Sri Lanka and he would not require access to private health care for the reasons that it gave. On that basis, the issue of access to private health care did not arise.

76    In relation to ground 3(iii):

(a)    The IAA did not overlook or ignore the fact that the country information indicated that there was social stigma attached to mental illness in Sri Lanka;

(b)    The IAA was not satisfied that FPT17 would face serious stigma because of the mitigating factors of the availability of familial support, his education and freedom from detention which aggravated his condition in Australia: DR[96]. That finding was open to the IAA;

(c)    The fact that the country information may indicate that some people are deterred by social stigma from seeking treatment for mental illness does not require a finding that FPT17 would be deterred from seeking it if necessary. As noted at DR[92], FPT17 did not claim that he would not seek such assistance. It was open to the IAA to find that, having had the benefit of counselling and medication in Australia, FPT17 would not be deterred by social stigma from seeking out treatment in Sri Lanka if it was needed. Further, Mr Karp’s submission relies on an opinion not founded on any evidence that there is no social stigma attached to mental illness in Australia. I also note that the STARTTS reports and IHMS notes do not report that FPT17 had any resistance to participating in the counselling services provided to him.

77    I perceive no legal unreasonableness in the IAA’s reasoning or appellable error in the FCCA Judge’s rejection of ground 4(d) as challenged in grounds (3)(b).

Disposition

78    The appeal should be dismissed with costs.

Associate:

Dated:    23 August 2022