Federal Court of Australia

Okoh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1011

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed with costs.

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

REASONS FOR JUDGMENT

MIDDLETON J:

INTRODUCTION

1    Mr Okoh (the ‘applicant’) seeks judicial review of a decision of the Administrative Appeals Tribunal (the ‘Tribunal’) made on 10 June 2021. The Tribunal’s decision was to affirm a decision of the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the ‘Minister’) not to revoke the mandatory cancellation of the applicant’s Class SN Subclass 190 Skilled-Nominated (Permanent) Visa (‘Visa’). The applicant’s Visa was cancelled by the Minister on 7 October 2019 on the basis that he did not pass the character test prescribed by s 501 of the Migration Act 1958 (Cth) (the ‘Act’).

2    The applicant contends that the Tribunal fell into jurisdictional error on three grounds: first, that the Tribunal failed to consider certain representations of the applicant and evidence relating to the applicant’s mental health for the purposes of deciding whether there was any impediment to his maintaining basic living standards if removed to Nigeria, and alternatively, by his second and third grounds, that, if the Tribunal did consider that evidence, it fell into jurisdictional error by making findings of fact that were legally unreasonable.

BACKGROUND

3    The factual background as accepted by the Tribunal is as follows and is not in contention.

4    The applicant was born in Nigeria in or around 1993. He has lived in Australia for approximately eight years, having immigrated to Australia on a student visa in June 2014.

5    On 29 March 2019, the Supreme Court of the Northern Territory convicted the applicant of money laundering. He had received funds into his bank account from a business that had been fraudulently invoiced by a third party in Nigeria, and then forwarded that money to nominated accounts overseas after keeping an amount for himself. He was sentenced to three years imprisonment.

6    On 7 October 2019, pursuant to s 501(3A) of the Act, the Minister mandatorily cancelled the applicant’s Visa on character grounds because the applicant had a ‘substantial criminal record’ within the meaning of s 501(6)(a) of the Act.

7    After being released on parole on 6 January 2020, the applicant was immediately taken to immigration detention.

8    On 4 June 2020, a delegate of the Minister made a decision not to revoke the cancellation decision under s 501CA(4) of the Act.

9    On 26 August 2020, the Tribunal affirmed the delegate’s non-revocation decision, which was judicially reviewed by Derrington J of this Court and referred back to the Tribunal for redetermination: see Okoh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 84.

10    On 31 May to 1 June 2021, the Tribunal heard the remitted application and on 10 June 2021, the Tribunal again affirmed the delegate’s non-revocation decision. It is this second Tribunal decision that is the subject of this application, and where I refer to “the Tribunal hearing” in these reasons, I am referring to this hearing.

LEGAL PRINCIPLES

11    Section 501(3A) of the Act relevantly provides that the Minister must cancel a visa granted to a person if the Minister is satisfied that the person does not pass the character test and is serving a sentence of imprisonment on a full-time basis. Section 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record. A substantial criminal record is deemed to include having been sentenced to a term of imprisonment of 12 months or more.

12    Pursuant to s 501CA(4), when a visa has been mandatorily cancelled in accordance with the above, the Minister may revoke the decision to cancel the visa if the Minister is satisfied that the person satisfies the character test or “there is another reason why the original decision should be revoked”.

13    A decision-maker other than the Minister considering whether to revoke a cancellation decision must comply with any Ministerial Direction given pursuant to s 499(1) of the Act. On 8 March 2021, the Minister gave Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the ‘Direction’).

14    The Direction requires a decision-maker considering whether there is “another reason” to revoke a cancellation decision to take into account certain “primary” and “other” considerations. Relevantly, clause 9(1) of the Direction provides that “other” considerations must be taken into account, where relevant, in accordance with the provisions of the Direction. Those other considerations include the “extent of impediments if removed”. Clause 9.2 of the Direction relevantly provides:

(1)    Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

(a)    the non-citizen’s age and health;

… and

(c)    any social, medical and/or economic support available to them in that country.

15    Consideration of the extent of any impediments requires consideration of the extent to which the person’s particular personal circumstances would impede their establishment and their maintenance of the basic living standards generally available in that country: for example, see Vural v Minister for Home Affairs [2020] FCA 667 at [33]-[36] (Anderson J).

16    Active intellectual engagement with this consideration requires the decision-maker to take into account the particular non-citizen’s age and health (to the extent it presents an impediment to the non-citizen establishing themselves and maintaining basic living standards generally available in their home country), which may include the non-citizen’s medical conditions. It also requires taking into account the social, medical, and/or economic support available to them, including in respect of those conditions.

17    The general approach to take in considering the reasoning of the decision-maker and their duty to consider representations made by the applicant has been recently explained in Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417; [2022] HCA 17 (‘Plaintiff M1’) at [22]-[27] per Kiefel CJ, Keane, Gordon and Steward JJ (citations omitted and emphasis added):

22.    Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision-maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.

23.    It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.

24.    Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged "to make actual findings of fact as an adjudication of all material claims" made by a former visa holder.

25.    It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

…

27.    None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker’s reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials, or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.

18    As to whether a claim is clearly articulated or clearly arises on the materials before the decision-maker, I refer to the decisions of the Full Court of this Court in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 (‘NABE’) at [55], [58] and [60] per Black CJ, French and Selway JJ and in ESQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Anor (2021) 283 FCR 164; [2021] FCAFC 44 (‘ESQ18’) at [61] per Reeves, Banks-Smith and Anastassiou JJ. It is useful to set out some of the principles recited there in ESQ18:

(a)    whether a claim clearly emerges from the material “involves an issue of judgement”: DOU16 v Minister for Home Affairs (2019) 272 FCR 358; [2019] FCAFC 212 at [35];

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

(c)    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] FCA 1609; (2008) 49 AAR 77 per Flick J (at [21]); and

(d)    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.

THE APPLICANT’S CONTENTIONS

19    The applicant contended that the Tribunal was required to consider the extent of impediments the applicant may face in establishing himself and maintaining basic living standards if removed to Nigeria, taking into account (amongst other things) his health and any social, medical and/or economic support available to him in that country. It was submitted that the Tribunal was required to consider these matters by virtue of the Direction and because the matters were squarely raised on the materials before the Tribunal.

20    It was contended by the applicant that when addressing that task, the Tribunal:

(a)    failed to consider material before it regarding the applicant’s poor mental health and treatment needs (ground 1 of the amended application for review filed 22 June 2022);

(b)    unreasonably concluded that the applicant had no diagnosed medical or psychological conditions and was in good health (ground 3); and

(c)    as a consequence, unreasonably concluded that there was no significant impediment to his establishment and maintenance of basic living standards in Nigeria (ground 2).

21    It was then contended that had the Tribunal engaged in the required active intellectual consideration of the applicant’s specific circumstances and the support available to him in Nigeria, it may have led to a different decision.

22    The applicant contended that the combined effect of various third party evidence and the evidence from the applicant himself (to which I will come) was to put before the Tribunal the following information:

(a)    the applicant was demonstrating a high level of distress in regard to his mental health;

(b)    in addition to a diagnosis of depression, the applicant was demonstrating symptoms of trauma and anxiety;

(c)     the applicant had been prescribed sleep medication to assist with his symptoms;

(d)    the applicant had received psychological treatment for his condition;

(e)    that treatment was suboptimal due to the applicant’s circumstances; and

(f)    the applicant had a desire and intention to continue counselling as he found it helpful.

23    The Tribunal also had before it a DFAT Country Information Report for Nigeria that states that Nigerians suffering mental illness are unlikely to have access to the care they need.

THE TRIBUNAL’S DECISION

24    The Tribunal determined that the applicant failed the character test as prescribed by the provisions of s 501 of the Act outlined above. The applicant does not challenge this finding.

25    In determining whether there was another reason why the cancellation decision should be revoked, the Tribunal traversed the various matters for consideration prescribed in the Direction, including the extent of impediments the applicant may face if he were removed to Nigeria from Australia. In the course of doing so, the Tribunal found that:

(a)    the applicant “reports no diagnosed medical or psychological conditions”;

(b)    he “conceded there is no impediment to re-establishing himself in Nigeria presented by his … health”;

(c)    he was “in good health”;

(d)    he faced no health barriers to his repatriation;

(e)    given the available evidence, “he has the capacity to establish himself and maintain basic living standards, in the context of what is generally available to other Nigerian citizens”; and

(f)    there was “no evidence … that he does not have the resources or capacity to re-establish himself and provide for his basic living standards, in the context of what is generally available to other Nigerian citizens”.

26    The Tribunal went on to find that having “weighed all relevant considerations individually and cumulatively”, there was not another reason why the cancellation decision should be revoked.

27    I shall set out the Tribunal’s consideration of the specific representations raised by the applicant in my consideration of the first ground below.

CONSIDERATION OF FIRST GROUND

28    The mental health of a non-citizen is a relevant matter in considering the impediments that person may face if returned to their country of origin. The Tribunal found that the applicant “reports no diagnosed medical or psychological conditions”. This in itself is a correct finding of the Tribunal based on the applicant’s own statements to the Tribunal.

29    I accept that in some circumstances, a statement from the applicant himself as to his self-perceived or self-reported mental health status may not obviate the requirement of the Tribunal to consider the expert and other material before it if the applicant himself demonstrated potential mental health issues and the evidence showed clear current mental health problems. This is not the circumstance that confronted the Tribunal.

30    In my view, the Tribunal properly considered the actual representations made by and on behalf of the applicant about the applicant’s mental health, taking into account the nature, form and content of those representations, as referred to in Plaintiff M1 quoted above.

31    I will now set out the representations relied upon by the applicant in relation to his mental health.

32    In support of his first Tribunal application, the applicant provided to the Tribunal a report of a psychologist, Dr Phil Watts, dated 5 July 2020 (the ‘Watts Report’). The Watts Report documented Dr Watts’ psychological assessment of the applicant for the purposes of determining the applicant’s risk of reoffending. The assessment involved a telehealth consultation and the completion of a standardised personality test called the “Personality Assessment Inventory”. The report was prepared by Dr Watts for the purpose of giving expert evidence to the Tribunal.

33    First, Dr Watts made the following statements in relation to the applicant’s “Clinical Presentation” (at [8]-[9]):

Mr Okoh did not present as suffering from any cognitive impairment. His attention, concentration and memory seemed appropriate.

Mr Okoh described a number of feelings of stress and depression, but did not present with any major mental illness, such as schizophrenia or bipolar disorder.

34    Dr Watts then set out his findings in relation to the personality test, including the following relevant statements (at [25]-[26]):

The Personality Assessment Inventory was completed using corrective services norms. This enables me to compare his behaviour compared to offenders and to the normal population.

Mr Okoh showed moderately high levels of stress, depression, anxiety and paranoia. I note particularly that the Trauma scale was elevated. This was likely to have been as a product of witnessing the incident where the Christians were attacked by Muslims and/or his friend dying. The depression was showing as clinical depression. The paranoia particularly showing difficulties in trust relationships.

35    Dr Watts’ conclusion (at [33]) as to the applicant’s risk of reoffending was as follows:

In conclusion, this 26-year-old man from Nigeria has been able to educate himself both in Nigeria and Australia, held a number of different jobs, but also got drawn into a scheme where co-offenders set up an elaborate scheme to get passwords and details and would then issue modified invoices, and Mr Okoh would receive the money into his personal bank account. As stated earlier, while motivated by greed there is a strong naivety aspect to this offence (giving a bank account with your own details). This assessment would indicate that offending is not part of Mr Okoh’s normal character. The likelihood of reoffence is low, but the seriousness of the action is acknowledged.

36    It is important to note this report was dated 5 July 2020. The Tribunal hearing under review here was on 31 May 2021 to 2 June 2021.

37    In addition to the Watts Report, the applicant provided to the Tribunal a letter of support from another psychologist, Mr Uwe Schaub, dated 17 March 2021 (the ‘Schaub Letter’). Mr Schaub was the applicant’s treating psychologist for a total of twelve sessions while the applicant was in immigration detention.

38    In his letter, Mr Schaub relevantly said:

Mr OKOH met the criteria for PTSD [post-traumatic stress disorder] and was referred to me for treatment. He also complained about sleep disturbances and frequent nightmares, as well as periods of anxiety and depression. As an EMDR [eye movement desensitisation and reprocessing] practitioner I am aware that EMDR is the best treatment choice for individuals suffering from PTSD, but I am also aware that providing EMDR in an environment like YHDC [Yongah Hill Detention Centre] is not recommended. Hence, Mr OKOH’s intervention included only some aspects of EMDR (specifically the grounding component). He was also provided with psycho-education, CBT [cognitive behavioural therapy], Mindfulness, and various strategies to address his problems with sleep and nightmares. Furthermore, he was taught visualisation, breathing and relaxation exercises to manage distress.

Mr OKOH was very committed to his intervention as was indicated by his diligent engagement. As a result, he reported improvements in all areas and total absence of nightmares and the absence of sleep difficulties. Mr OKOH has demonstrated good attention and recall, good understanding and application of information, and impressed as calm and settled as well as emotionally resilient with a positive outlook. Despite his less than favourable environment, Mr OKOH nowadays presents as a calm and approachable individual who is goal directed. He also demonstrated insight, empathy, and remorse over the crime he committed. Mr OKOH stated to me that he has separated himself from negative peer influences and that he was now very selective of those individuals he voluntarily associates with.

I hope that my stated observations and experiences with Mr OKOH assist in formulating a clearer picture of his mental health and his character.

39    The Schaub Letter was written in support of the applicant for the purposes of the Tribunal hearing and was accepted by the Tribunal as lay evidence rather than expert opinion evidence, and so limited weight was placed on it by the Tribunal (at [127] of its reasons). The Tribunal’s conclusion in this regard was not put in issue by the applicant, and so the applicant relied on the Schaub Letter to show that the applicant had been receiving treatment from a psychologist, had reported various symptoms prior to treatment, and that certain aspects of the treatment could not be delivered because of his continued detention.

40    It is significant that the third party evidence (expert or otherwise) relied upon by the applicant before the Tribunal (which is now relied upon by the applicant to support his contentions in this Court in relation to the extent of ‘impediments if removed’) was in the context of the issue of the risk of his reoffending. The evidence was relied upon before the Tribunal to demonstrate that the risk of his reoffending was ‘low’ or minimal. They do not contain any representation in relation to any mental health impediment to return to Nigeria.

41    Prior to the Tribunal hearing, the applicant provided to the Tribunal a statement of facts, issues and contentions dated 3 May 2021 (‘SOFIC’).

42    In the SOFIC, under the heading “Extent of impediments if removed”, the applicant’s counsel said (at [58]-[59]):

There is no impediment to the Applicant establishing himself in Nigeria presented by his age, health, language or culture.

The real impediments to the Applicant establishing himself in Nigeria will be his separation from his partner, family, nieces and nephews, and the additional financial burden he will be for his parents. This will be a source of stress in his life that may impede his ability to establish himself and maintain a basic standard of living.

43    At about the same time that the SOFIC was provided, the applicant also provided to the Tribunal an undated witness statement.

44    In the witness statement, the applicant said under the heading “My rehabilitation in detention since 6 January 2020” (at [27]-[30]):

I have voluntarily assessed mental health and engaged with their practitioners on and off the centre after receiving a reply from the AAT last year August (2020).

I have had psychological intervention, and spoken with psychologist on and off the centre for over 12 sessions. …

Cognitive Behaviour Therapy (CBT) when used properly would enable me to predict situations, be mindful of and managing my negative thoughts, recognise and manage my emotional state, learn to recognise and manage my physical state with the corresponding behaviour while also providing contingencies plan – good alternative.

This psychological and emotional growth I have undertaken will keep me safe, the victims safe and the community safe if given a second chance.

45    In the witness statement, the applicant also said (at [46]-[47]):

Incarceration has … allowed me to reflect on my past decisions, reflect on who and what matters to me, and what direction I want to head in moving forward. This has been a “time-out” to reconstruct my life, mentally and physically prepare for the future.

From the moment I was charged to this day, I see all the measures I have taken as a journey of self-discovery. I am more motivated than ever and physically in the best shape of my life. I consider myself to be much better off than at the time of my offending.

46    In his witness statement (at [60]), the applicant gave evidence of his intention to continue counselling and enrol in support groups, and also to “stay connected to the right people and disconnected from wrong doers and troublemakers”. The witness statement does not specifically refer to an intention to continue mental health treatment by a medical professional.

47    On 31 May and 1 June 2021, the applicant attended a hearing before the Tribunal, at which he was represented by solicitors and counsel.

48    In the course of the applicant’s evidence on 31 May 2021, the following exchange occurred in relation to the mental health services accessed by the applicant during his time in immigration detention (SCB 98):

MR GLENISTER:    So do you think that the mental health services helped you?

APPLICANT:    Yes, it really helped me. I think that was the place where I could really open up and I could see the choices I made. I could understand the pain, the shame and the loss of trust the victims felt.

49    Later in the course of the applicant’s evidence on 31 May 2021, the following exchange occurred (SCB 152):

TRIBUNAL:    [I]f you were returned to Nigeria, you talk about the things that you’re worried about, you’re concerned about if that happened. I just want to give you another opportunity to explain to me, what are the things that you’re concerned about?

APPLICANT:    My mental health, job, the poverty.

TRIBUNAL:    Sorry, what was that?

APPLICANT:    Poverty. No adequate healthcare.

TRIBUNAL:    I understand your evidence in your personal circumstances form, it says you’re fit and have never felt better. Are you referring to any — having any health conditions at the moment?

APPLICANT:    Please come again, Senior Member.

TRIBUNAL:    [You say in] your documents that you have no health conditions or medications. When you say no adequate healthcare, are you referring to that because you have some conditions you need to tell me about or medication that you’re receiving?

APPLICANT:    No, Senior Member. I don’t have — the medication I’m on at the moment is just the sleeping pills.

TRIBUNAL:    So you’re concerned about your mental health, no job, poverty, no adequate healthcare…

50    The “personal circumstances form” referred to in the transcript was submitted by the applicant to the Department of Home Affairs on 14 October 2019 immediately following the Minister’s mandatory cancellation decision. Under the heading “Impediments to return” (at CB 118), the applicant had checked “No” to the question “Do you have any diagnosed medical or psychological conditions?” and “N/A” to questions regarding any medication he was taking and regarding any treatment he was receiving from a medical professional.

51    In the course of closing submissions on 1 June 2021, the applicant’s counsel made the following submission (SCB 221):

The impediments consideration, now, obviously, the applicant is very concerned about being removed to Nigeria but, given that that consideration is all about whether he can establish himself to a basic standard of living, I put it no higher than what has been put in the applicant’s Statement of Facts, Issues and Contentions, which is that, while it will be, obviously, be very upsetting for him to be removed, he’ll, obviously, be a burden on his parents, which the evidence tended to suggest are reliant already on his siblings in Australia to support themselves and that that may have some impact, or cause him some difficulty, in establishing himself. I accept that if there is any weight to be given to this consideration, it will be slight and that these issues will be transient in nature in the sense that, given his qualifications, his age, his health, and the fact that he can speak the language, that he will eventually be able to establish himself.

52    Contrary to the applicant’s submissions, when these representations are considered as a whole, they show that:

(1)    on 5 July 2020, Dr Watts’ opinion was that:

(a)    the applicant was not suffering from any cognitive impairment or major mental illness;

(b)    the applicant showed moderately high levels of stress, depression, anxiety and paranoia; and

(c)    the applicant’s depression was capable of being characterised as clinical depression;

(2)    subsequently, while in immigration detention, the applicant received treatment from psychologists, and that treatment brought about significant improvements in the applicant’s mental health;

(3)    by about 3 May 2021 (the date of the SOFIC and, it can be inferred, the undated witness statement), there was no claim of impediment to the applicant establishing himself in Nigeria by reason of his health, and the applicant claimed to be in the best shape of his life; and

(4)    on 31 May 2021, while the applicant expressed concern about his mental health should he be returned to Nigeria, the applicant also asserted he had no health conditions, and the only medication that he was taking was sleeping pills.

(5)    on 1 June 2021, in closing submissions before the Tribunal, the applicant’s counsel confirmed that the position stated in the SOFIC continued to apply — namely, that there was no impediment to the applicant establishing himself in Nigeria by reason of his health.

53    Having particular regard to the principles from ESQ18 I set out earlier in these reasons, it cannot be concluded that a claim that the applicant’s mental health was an impediment to his return to Nigeria was a substantial or clearly articulated argument or otherwise clearly arose from the materials. In particular, the Watts Report and the Schaub Letter did not contain any representation as to any mental health impediment to the applicant’s return to Nigeria. While the applicant expressed concern about his mental health at the Tribunal hearing, after having regard to his further answers to the Tribunal’s questions and his counsel twice submitting that there was no impediment due to the applicant’s health, the Tribunal would be entitled to consider that the mental health impediment claim was not pressed. In light of the applicant’s evidence and submissions as a whole, I do not consider that any such claim triggered the Tribunal’s duty to consider the extent of such an impediment under clause 9.2 of the Direction.

54    In any event, the Tribunal did to some extent consider the applicant’s health in its reasons, and I will now assess the Tribunal’s consideration of the applicant’s mental health issues in the context of the nature, form and content of the applicant’s representations above,

55    The Tribunal referred in detail in its reasons to the sections of the Watts Report (at [114]-[115]), the Schaub Letter (at [106] and [127]) and the applicant’s undated witness statement (at [106]-[107]) in relation to the applicant’s personality and mental health rehabilitation, albeit in the context of considering the applicant’s risk of reoffending. However, the ready inference is that the Tribunal considered those materials as a whole.

56    The Tribunal also expressly referred to the response that the applicant gave when the Tribunal asked about the fears he might have about being returned to Nigeria. In relation to that evidence, the Tribunal’s reasons (at [63]) are as follows:

When asked to elaborate on any fears he might have about repatriation, the Applicant responded that he was concerned about “my mental health, job, poverty, no adequate health care … no pensions from the Government.” When put to the Applicant that his evidence did not disclose any current health conditions or medication, he agreed, stating that he was only currently taking sleeping pills. …

57    Again, the only available inference is that the Tribunal considered the applicant’s evidence on that point, including his evidence that he feared returning to Nigeria because of “my mental health” and “no adequate health care”.

58    Later in its reasons under the heading “Tribunal consideration: Extent of impediments if removed”, the Tribunal said the following (at [170] and [172]) (citations omitted):

The Applicant is 27 years of age, reports no diagnosed medical or psychological conditions, claims to be in the best physical shape of his life, and aspires to an immediate resumption of work if released. He conceded there is no impediment to re-establishing himself in Nigeria presented by his age, health, language, or culture…

…

It is submitted on the Applicant’s behalf that the principal impediments confronting him if removed are separation from his partner and other family members in Australia, and the ‘additional financial burden he will be for his parents,’ which will cause stress and ‘may impede his ability to establish himself and maintain a basic standard of living.’…

59    Then, under the heading “Tribunal findings: Extent of impediments if removed”, the Tribunal said (at [173]) (citations omitted):

The Applicant has spent most of his life in Nigeria. He completed an undergraduate degree there as an adult and then completed another undergraduate degree in Australia. He is a relatively young man in his 20s, in good health, and reports a consistent history of work. There are no age, health, linguistic, or cultural barriers to his repatriation. There is also no evidence he would be treated differently to any other Nigerian citizen. Given the available evidence, the Tribunal is satisfied he has the capacity to establish himself and maintain basic living standards, in the context of what is generally available to other Nigerian citizens.

60    Further, the Tribunal found at [175] that there was “no evidence he is unable to rely on practical and emotional support from his parents, sister and perhaps past friendship networks if required to re-establish himself in Nigeria.”

61    It is significant that the applicant’s counsel expressly made the point — both in the SOFIC and in closing submissions — that there was no impediment to the applicant returning to Nigeria that was presented by his health. While the Tribunal is not bound to accept this position made by or on behalf of a party to a review, this statement was consistent with:

(1)    the evidence before the Tribunal which showed that the applicant’s mental health had improved since the date of the Watts Report; and

(2)    the applicant’s own evidence that, by the time of the Tribunal’s decision, he was in the best shape of his life, had no health conditions, and was not taking any medication except sleeping pills.

62    Counsel for the applicant submitted that the Tribunal misunderstood the applicant’s representations during the hearing, and in particular that he was currently “just” on sleeping pills, as a concession that he did not suffer from any health conditions. It was submitted that this evidence should have been considered and weighed against the expert opinion of Dr Watts.

63    It is true that the Watts Report describes the applicant’s mental health in negative terms and the Tribunal, although extracting this part of the report in its reasons, did not specifically comment on this part of the report at all or cross-examine Dr Watts during the hearing. However, the Tribunal (at [115] of its reasons) did note the shortcomings of the Watts Report generally, and in particular Dr Watts’ limited contact and assessment of the applicant. It is important to remember that, at the time of the Tribunal’s consideration, Dr Watts’ findings were historical, based on a single consultation and standardised personality test, and must be read in light of the later representations of the applicant, of his legal representative, and in the Schaub Letter (although not an ‘expert’ medical report), and the Tribunal’s direct inquiry of the applicant as to his health, including his mental health.

64    Counsel for the applicant also submitted that while the evidence of the applicant and the Schaub Letter suggested that his mental health had improved while he was receiving treatment, this indicated that he was in fact in need of such treatment. Further, the Tribunal did not consider the issue of how the applicant’s mental health issues would be treated should he be returned to Nigeria.

65    Again, the inference that the applicant required continued mental health treatment must be considered in light of the applicant’s representations as a whole. Ultimately, the applicant’s SOFIC and closing submissions to the Tribunal did not press the claim that his mental health issues were an impediment to his return to Nigeria, nor was Dr Watts’ or Mr Schaub’s evidence as to the applicant’s underlying mental health condition (as opposed to his reduced risk of reoffending) raised or relied upon before the Tribunal.

66    Having regard to the nature, form and content of the representations as to the applicant’s mental health issues over the course of the Tribunal’s review and the Tribunal’s consideration of the applicant’s mental health in the context of his risk of reoffending and then its specific finding in the context of any impediments to return, the Tribunal did not fail to consider the applicant’s claims such as to amount to jurisdictional error.

CONSIDERATION OF GROUNDS TWO AND THREE

67    By his second and third grounds, the applicant contends that the Tribunal exercised its power unreasonably by finding that there was nothing before it to indicate that the applicant would have significant impediments to establishing himself if relocated to Nigeria and, in particular, exercised its power unreasonably by finding that the applicant reported no diagnosed medical or psychological conditions, was in good health, and did not have any health concerns. Whatever gloss or qualification the applicant now tries to put on the material before the Tribunal, the Tribunal was not unreasonable in its reliance upon the representations made by or on behalf of the applicant as to the applicant’s current mental health and in its ultimate conclusion that there were no significant impediments to relocation on that basis.

68    As explained above, the findings that the Tribunal made were open to it on the material before it in light of the nature, form and content of the representation made by the applicant. It was open to the Tribunal to conclude that, at the time of its decision, the applicant had no health conditions, and there was no impediment to the applicant returning to Nigeria that was presented by his current mental health.

DISPOSITION

69    The application will be dismissed with costs.

70    I acknowledge the very valuable assistance I obtained from Counsel for the applicant acting Pro Bono.

Associate:

Dated:    2 September 2022